The Supreme Court of Nigeria
On Friday, the 13th day of January 1989
Judgement of the Court
In this Suit which commenced in Oyo Judicial Division of the High Court of Oyo State, the Plaintiffs claimed against the Defendants the following reliefs:-
1. Declaration that the 1956 Baale of Ilora Chieftaincy Declaration is the only valid declaration in respect of the Baale of Ilora Chieftaincy and that the present Kingmakers are the only persons entitled to select a Baale of Ilora-elect.
2. Declaration that the Secretary of Oyo South Local Government's Circular Letter reference No. OYLS6535/Vol. 11/394 of 11th January 1982 appointing warrant Kingmakers and inviting such appointees to consider a list of candidates for the purpose of filling the vacancy in the Baale of Ilora Chieftaincy is improper, invalid and of no effect.
3. Declaration that the purported meeting of the warrant Kingmakers held at Jobele on Wednesday. 13th January. 1982 and the selection of a candidate for the filling of Baale of Ilora Chieftaincy is against the customs and traditions of Ilora, unconstitutional, invalid, improper and of no effect.
4. Injunction restraining the 3rd defendant from further participation in the processes (as Baale-Elect) appointment and installation of the Baale of Ilora and from parading himself as Baale Elect of Ilora.
5. Injunction restraining the 1st defendant from approving the 3rd defendant or and other candidate that the 4th defendant may submit to him as Baale-Elect of Ilora and subsequently installing any such candidate as Baale of Ilora.
6. Injunction restraining the 4th defendant from further participation in any exercise connected with the processes of the approval and installation of the 3rd defendant as Baale Elect of Ilora.
Pleadings were ordered and were filed and exchanged by the parties. On the 2nd June, 1982 Falade J., delivered judgment and dismissed all the claims. An appeal to the Court of Appeal (Uche-Omo, Sulu-Gambari and Onu, JJ.C.A.) was dismissed on 28th November. 1984. The appellants then appealed to this Court filing 7 grounds of appeal. Briefs of argument were filed by Counsel to both parties.
In his brief of argument, learned Counsel to the appellants. Mr. Olanipekun set down the issues for determination. In his own view these were:-
1. Whether the Chieftaincy Declaration in this matter is the only one that should be used in the selection of Baale of Ilora in view of Section 9 of the Chiefs Law of Oyo State Cap. 21, 1978.
2. Whether the Governor of Oyo State or any one has an arbitrary right of taking away vested rights in a law without legislative approval or the repeal of such section
3. Whether it is not against the traditions of Ilora people to select a Baale of Ilora outside Onsas House in Ilora.
4. Whether the Kingmakers have not complied with the Declaration by appointing the Appellant.
5. Whether in view of all the foregoing the 1st Respondent was right in appointing warrant Kingmakers to displace legal Kingmakers.
6. Whether the Court of Appeal was right in not allowing the appeal after they had held that a ground of appeal partially succeeds and did not state the extent and effect of such success on the appeal.
Learned counsel to the 3rd defendant/respondent Mr. Afolabi, raised in issue 2 of the issues for determination, a matter which is important to the determination of this appeal.
What is the effect of Sections 13 and 16 of the Chiefs Law, Cap.19, Laws of Western Region of Nigeria 1959 on such customif it exists at all?
All the counsel elaborated on their briefs of argument in oral address to this Court and I do not find it necessary to set down those addresses except as is necessary in this judgment. This is also a case in which I do not find it necessary to set down the pleadings of the parties. I shall of course refer to them as necessary in the course of this judgment. As regards the pleadings, I observe that there is very little dispute between the parties. For instance, there is no dispute that there was a vacancy in the Baale of Ilora Chieftaincy; that there was a Chieftaincy Declaration in 1956 for the Baale of Ilora Chieftaincy; that it was the turn of the Okunla Ruling House to provide the next Baale; that six candidates were provided for the vacant stool; that the 1st appointment of 1st Appellant, Eyinade Ojo, was set aside by the Oyo State Government. The areas of dispute relate to whether a Baale of Ilora is ever appointed outside the ONSA'S house, particularly at JOBELE, and whether 3rd Respondent was a member of the Okunla Ruling house. In the course of this judgment, it will be seen that the question of the custom on the venue of the appointment of the Baale, or more particularly whether a Baale could be appointed at JOBELE has become largely irrelevant. It is also to be remembered that there is no claim herein for a declaration that 1st defendant acted ultra vires his powers in rejecting the 1st appointment of 1st appellant as Baale of Ilora. In the circumstances, it is my view that any pleadings, evidence or submissions relating to the removal of the 1st Appellant are really irrelevant to the main issues in this case.
However, in order to understand this case, it is necessary to set down the facts. I would adopt the resume given by the learned trial Judge. According to this, the stool of Baale of Ilora became vacant in 1979 as a result of the death of Chief Oparinde, the then incumbent. By the Baale of Ilora Chieftaincy Declaration 1956 it became the turn of Okunla Ruling House to present a candidate to fill the vacant stool. Six candidates were nominated by the members of Okunla Ruling House which included Eyimade Ojo (1st Plaintiff), Olayiwola Olawore (3rd defendant), Deacon S. Ola Ojo, Festus Bisiriyu, Inaolaji Akinyemi and Ajibi Oyekola. The late Olanniba Ajala, ( the then head of the Ruling House presented them to the traditional kingmakers. The living five traditional kingmakers included Chief Ogunrombi, the Odofin; Chief D.K. Sangonte, the Balogun; Chief Wajuola Oyesoro, the Ejemu; Chief Adedewe Abake, the lyalode and Chief Ajibade Adesina, the Onsa and their Chairman. The other three kingmakers had died. The kingmakers met, deliberated and considered the six contestants and by a majority of three to two, appointed Eyimade Ojo as Baale of Ilora. Their resolution and certificate of appointment were sent to the Governor (1st defendant) for approval. However. the appointment was set aside because of representations and petitions the Government received from the members of Ilora Community. The Government ordered a fresh exercise to be conducted but directed that on the ground of what it called interest ofjustice, Chief Wojuola Oyesoro, the Ejemu of Ilora should not participate in the deliberation or meetings of the kingmakers. The Secretary to the Oyo South Local Government (4th defendant) set the ball rolling by inviting again the Okunla Ruling House to meet and nominate fresh candidates for the said vacant stool. The Ruling House met and nominated 5 candidates including 1st Plaintiff and 3rd defendant. Karimu Oyewole Aiki, the new head of Okunla Ruling House presented them to the traditional kingmakers for deliberation and consideration. The kingmakers met but the 4th defendant objected to the Ejemu taking part because of the directive of the Government that he should not take part. Chief Wojuola Oyesoro, the said Ejemu insisted that he would participate and even vote short of which he would cause trouble. He even threatened his colleagues with 'Juju'. Chief Ajibade Adesina, the Onsa and head of the kingmakers, supported the Ejemu and he himself threatened that no meeting would be held except the Ejemu was allowed to participate and vote contrary to the Government's directive. The Onsa thereafter refused to call any in meetings of the traditional kingmakers despite several appeals and warnings by the Government. Of course the Onsa in several letters made his own position clear. The Government then subsequently appointed eight warrant kingmakers in persons of Chief Ezekeil Ogunrombi. Chief D.K. Sangonte, Chief J.E. Ojo, Owoade Aderinkola, Madani Kikelomo Atiko. Olorode. Alhaji Opelovern and P.A. Arokale who met at Jobele (on 13/1/82 and considered the five contestants (3 were actually absent although they seem to have had notice of the meeting) before unanimously appointing Olayiwola Olawore as the Baale of Ilora. Their recommendation and Certificate of Appointment were sent to the Governor of Oyo State who approved same on 12/2/82.
The learned trial Judge made some findings of fact and arrived at sonic conclusions in his judgment. These included the following:-
(1) That the 3rd defendant/respondent Olayiwola Olawore is a member (if the Okunla Ruling House.
(2) That there was no dispute between the parties as to there being a Baale of Ilora Chieftaincy Declaration I 956.
(3) That the alleged custom that no Baale of Ilora is ever appointed outside the House of the ONSA let alone at JOBELE was not proved by the evidence led by the plaintiffs and the onus was clearly on them to establish the custom by evidence, and
(4) That the traditional kingmakers defaulted in their duty of appointing the Baale and so the 1st defendant was right to have appointed warrant kingmakers having exercised powers vested (in him by Section 13 of the Chiefs Law. 1959."
All these findings and conclusions were affirmed by the Court of Appeal. As regards the issue of custom (if not appointing the Baale outside the ONSA'S house, it held that the plaintiffs failed to establish this by evidence. It, however, disagreed with the learned trial Judge's finding that the plaintiffs did not state the Custom. This disagreement is not enough, as Mr. Olanipekun so strenuously urged on this Court, for holding that the Court of Appeal ought to have allowed the appeal on that ground. It is significant, and this is a matter I shall advert to more fully later in this judgment, that the Court of Appeal did not deal with issues of the Ejemu's exclusion and the alleged default of the traditional kingmakers although these issues arose in my view from ground 5 of the grounds of appeal before that Court, and from the submissions made to it.
It is clear that what we have in this appeal are concurrent findings of fact and concurrent judgments of two lower courts. The burden on the appellant in such circumstances is to show exceptional circumstances that would justify interference with the concurrent verdict. A Court of Appeal, as is now trite, will not interfere with the finding of fact of a lower court unless it is satisfied that such findings are perverse, or that the Judge did not utilise properly the opportunity of seeing and hearing the witnesses. It is not surprising therefore that learned Counsel to the 3rd Defendant hammered at this relying on decisions of this Court and earlier courts. Such decisions include Kodilinye v. Mbanefo Odu 2 W.A.C.A 336 at 338; Fabumiyi and Anor. v. Obaje and Anor. (1968) N.M.L.R. 242 at 247; Chief Frank Ebba v. Chief Warri Ogodo and Anor (1984)4 S.C. 84; Victor Woluchem and Ors. V. Chief
Simeon Gudi and Ors. (1981)5 S.C. 291 at 326.
Certainly if this appeal turned solely on the findings of the two courts, I would have had no difficulty in accepting Mr. Afolabi's submissions. It does not. It turns, in my view, on the manner in which the learned trial Judge applied the law to the accepted facts - particularly on the matter of the exclusion of the Ejemu from participating in the Baale selection process; the so-called default of the traditional kingmakers and the appointment of the warrant kingmakers. To come properly to this matter, it is expedient and tidier to start from the 1956 Baale of Ilora Chieftaincy Declaration which is accepted by both sides. The Declaration tendered in evidence as Exhibit P13 was in paragraphs 1.2 and 4 in these terms:
In exercise of the powers conferred upon the Local Government Councils by Section 3(1) of the Western Region Appointment and Recognition of Chiefs Law 1954, the following declarations in respect of succession to the Baaleship of Ilora are hereby made:
1. That 4 Ruling Houses shall have the right to provide candidates for Baaleship of Ilora namely:
3. Aduloju and
2. That the order of rotation in which every family specified in paragraph 1 above is entitled to provide a candidate shall be:-
4. That the following 8 Chiefs are entitled to select the holder of the Chieftaincy:
2. The Odofin
4. The Balogun
6. The Elemo
7. The Otunba
8. The lyalode.
It has to be noted that the words of paragraph 4 of the Declaration are entitled to select. This appears to me to connote a vested right in each of those Chiefs. But I am unable to agree with the submissions of Mr. Olanipekun to the effect that these provisions are immutable, or that the rights cannot be touched in any circumstance. Surely the Declaration must be read subject to provisions of the Chief's Law which in an appropriate case may make it impossible for any of these chiefs to participate. This can happen in a number of cases. It may happen if, pursuant to Section 13(1) of the Chiefs Law Cap 19 Laws of the Western Region 1959 applicable to Oyo State, the persons competent to act in any selection of a chief having defaulted in the performance of their duty, the Minister (the powers must now be that of the Governor under the 1979 Constitution) appoints other persons to carry out the functions. Section 13(1) of the 1959 Chiefs Law provides as follows:-
(a) the Secretary of the competent council or the kingmakers fail to discharge any function conferred upon them by Section 11 within the time required; or
(b) in the case of a recognised chieftaincy other than a ruling house chieftaincy, any person entitled to nominate, select or appoint to a vacancy fail to exercise their powers within such time as appears reasonable to the Minister, the Minister may appoint such persons to exercise and perform those powers and duties as he may think fit, in place of the secretary. kingmakers or other person in default.
The same provision was made in Section 17 of the Chiefs Law Cap.21 Laws of Oyo State 1978. Reliance is being put on the provisions of Cap. 19 of 1959 as the 1978 Chiefs Law came into effect in 1983 and is not applicable to this case.
Secondly, it may happen if the Declaration is amended. Section 9A was inserted by the Chiefs (Amendment) Law No.14 of 1963. It was in these terms:
9A (1) Where the Governor-in-Council is satisfied that a registered declaration
(a) does not contain a true or sufficiently clear statement of the customary law which regulates the selection of a person to be the holder of a recognised chieftaincy; or
(b) does not contain a sufficient description of the method of selection of the holder of such a chieftaincy; or
(c) contains any error whether as to its form or substance or
(d) is otherwise defective, faulty or objectionable, having regard to the provisions of the law, the Governor-in-Council (which must under the new Constitution be the Governor) may require the Chieftaincy Committee of A the competent council to amend such declaration in any respect that he may specify; or to make a declaration according as he may consider necessary or desirable in each case.
Section 9A(3) authorises the Governor in Council (now Governor) to amend a Declaration if the competent chieftaincy Committee refuses to do so. Section 9(b)(1) stipulates that any amended Declaration shall be reregistered or registered as the case may be. No amendment of the 1956 Declaration was done in this Suit nor had any procedure been set in motion for any such amendment. The question of default will be considered hereunder. ff there has been no default, and no amendment of the Declaration, it becomes difficult to see on what basis the Governor can remove any of the named C Chiefs in Section 4 of the Declaration of 1956 and appoint other kingmakers. The rights are indeed vested rights and in my view cannot just be set aside by the mere ipsi dixit of the Governor. Indeed so jealously do Courts guard vested rights that they look at any legislation which attempts to derogate from them as if it were a penal legislation which has to be construed very strictly. See Wilson v Attorney-General of Bendel State (1985)1 N.W.L.R. (Pt.4) D 572. There is also a presumption that the legislature does not intend to limit vested rights further than clearly appears from the enactment See In Re Metropolitan Film Studio's Application (1962)1 W.L.R. 1315 and generally on the points, the decision of this Court in Afolabi v Governor of Oyo State (1985) 2 N.W.L.R. Part 9, 734.
It follows that even if it can be said that there is something in the Chiefs Law which can derogate from the vested rights of the Chiefs under the 1956 Declaration, such an intendment has to be quite clear. The Governor cannot rightly exercise any of the powers conferred on him by the Chiefs law if its effect would be to derogate from vested rights. If in purported exercise of powers conferred by Section 13(1) of the Chiefs Law 1959, the Governor removes any of the named Chiefs and appoints a new kingmaker on the ground of default, and it turns out that there is no default, such exercise of powers would be null and void and would in no way disturb the vested rights to select the Baale conferred on the named Chiefs in the 1956 Declaration. The question can, therefore, be posed as the learned trial Judge did. Did the traditional kingmakers default from the performance of their duties?
From what I have been saying above, Section 13(1) of the Chiefs Law has to be construed strictly while considering this question of default. In arriving at his conclusion that the traditional Kingmakers had defaulted in their duties, the learned trial Judge had this to say,
The five names were sent to the Onsa (the 2nd plaintiff) as the Chairman for the consideration of the kingmakers by a letter dated 31st August, 1981 Exhibit P4 - giving them seven days. They met within the schedule time but failed to agree hence they could not discharge their duty as kingmakers as required by law. On 14th October, 1981, another letter - Exhibit P5 - was written to the second plaintiff, the Onsa, to convene the meeting of the kingmakers and appoint a Baale of Ilora. The Onsa, by his letter dated 16th October, 1981 - Exhibit P6 accepted the offer and invited the 4th defendant to the meeting of 20/10/81 both as an observer and secretary to the meeting. No meeting was eventually held. Several correspondences were exchanged between the Onsa and the Secretary appealing to Onsa to discharge his legal duty, yet the Onsa refused. Irrespective of his reason not to convene the meeting of the kingmakers, I hold as of fact that the Onsa as well as the other qualified kingmakers refused to discharge their duties as kingmakers contrary to the provisions of the Chiefs Law. 'Default' means nothing more, nothing less, than not doing what is reasonable under the circumstances not doing something which you ought to do, having regard to the relations which you occupy towards the other person interested in the transaction. See In re Bayley - Worthington Cohens Contract (1909)1 Ch. D 648 at 658. The kingmakers have a duty both to the Ilora community to appoint a Baale for them a duty to the contestants that their names are considered and that one of them is duly appointed Baale of Ilora and to the Government to see that the proper procedure is followed and the exercise is completed within the time laid down by law. But, for the reasons best known to them, they have defaulted. And in doing so, the Government acted properly in appointing eight warrant kingmakers to substitute them.
Strangely enough, in arriving at this conclusion the learned trial Judge did not consider the position of the Ejemu who had been excluded by the Government of Oyo State from participating in the selection process "in the interest of justice." This in my view was a serious omission. It was the exclusion of the Ejemu which precipitated the crisis between the traditional kingmakers and the 4th defendant. The correspondence shows that the Onsa was willing to convene a meeting of the kingmakers, and indeed convened one, but it could not hold because, while the 4th Defendant insisted that the Ejemu must not participate in the meeting, the Ejemu himself, supported by Onsa, insisted that he must participate as he had a right to so participate and there was no justification for excluding him.
Admittedly several letters were written by the 4th defendant to the Onsa. See Exhibits P3, P5, P7, P9 and P10; the Onsa wrote complaining of the venue of the proposed meeting which he claimed violated the Customs of the people of Ilora. He always ended by inviting the 4th defendant to a meeting of the kingmakers at the Onsa's compound.
The move to exclude the Ejemu, Chief J.O. Wojuola, seemed to have started from a petition dated 20th January, 1981 addressed to the Governor of Oyo State by 3 aggrieved persons (including the 3rd defendant herein) complaining about earlier appointment of the 1st Plaintiff as Baale of Ilora. One of the grounds of complaint was that
the candidate selected for the post of the Baale of Ilora comes from a family whose head is a member of the kingmaking body.
The petitioners requested the Governor to institute an Administrative Inquiry "to determine the validity of the statement of the fact that the canditate selected by the kingmakers is a member of the family whose head is one of the kingmakers." In this petition tendered in the proceedings as Exhibit D6, the name of this kingmaker who was head of the selected candidate's family was not mentioned. In a letter dated 24th March, 1981 and addressed to the Secretary, Oyo Local Government, Oyo, the Secretary to the Government of Oyo State wrote that following this petition, an Inquiry was held and its report had now been submitted to Government. He informed the Secretary Oyo Local Government that the Government had decided that the process for the selection of the Baale of Ilora be started de novo. The letter ended as follows:-
It has also been noted that since Chiefs Elemo and Ejemu are also heads of their ruling houses, they cannot be judges in their own case. In this pending action on the recommendation that the declaration should he amended to remove these two chiefs from the list of the kingmakers, they should not be allowed to take part in the present appointment exercise. In this case, since the stool of Elemo is at present vacant, the Ejemu who is in post should not be allowed to take part in the subsequent meeting of the kingmakers to select a new Baale of Ilora.
If an inquiry was indeed held to establish the fact that the candidate selected belonged to a family the head of which was one of the kingmakers, there is nothing on record to show that the Ejemu, Chief Wojuola gave evidence at such an inquiry. In any case, it is not suggested in the letter set down abeve that he was that kingmaker. The 1956 Declaration states that there are 4 Ruling Houses in Ilora. It is not stated which House the Ejemu was head. In any case it cannot be Okunla for it was in evidence that the head of that House at the time the 1st plaintiff was presented as a candidate for the Baaleship was Olanniba Ajala. After his death, Karimu Oyewole Aiki became head. It was agreed, and indeed it was not in dispute, that it was the turn of Okunla House to provide the next Baale. What then was the relevance of the Ejemu being excluded because he is also head of a Ruling. House and cannot be judge in his own cause? Absolutely none. In my view, the Ejemu was unjustifiably and illegally prevented from participating in the processes for the selection of the Baale. Indeed it was mentioned in the letter set down above that there was a recommendation that the Declaration be amended so as to remove him and the Elemo. The Declaration had not been amended. The Governor, in my judgment, had no power to remove the Ejemu Indeed, from the reasons given in the letter of 24th March. 1981 for his exclusion it is not difficult to see that his exclusion was certainly not in the interest of justice as claimed.
It would he strange in the extreme to hold that the Ejemu, who was illegally excluded from participating in the selection processes, and who insisted on his right to participate and was willing to carry out his traditional duties, can be said to have defaulted so as to attract the exercise of powers under Section 13(1) of the Chiefs Law. The Ejemu was entitled to resist an illegal deprivation of his vested right under the 1956 Declaration, and for clearly unjust reasons. He also had a duty to ensure that the customs of the people of Ilora were not unlawfully violated by his exclusion from the selection process.
The same can be said of the Onsa. He was supporting the Ejemu in an attempt to stop an unlawful exclusion of that Chief from participation in the selection process. This can be seen from the contents of Exhibit D9 - a report sent by the 4th defendant to the Secretary to the Government of Oyo State. From Exhibit P6, it cannot be said that the Onsa was not willing to discharge the responsibilities of his office. He was prepared to hold the meeting provided it was held in his compound and not at Jobele. If there were no ulterior motives, the proper course ought to have been to hold an inquiry, even if it is a muted one, to sort out this question of the venue of the selection and the exclusion of the Ejemu. The rush in assuming that the traditional king makers had defaulted in their duty, and the appointment of warrant kingmakers, could of course have been based on the recommendation of the 4th defendant that the ONSA be taught a lesson. In paragraph 4of Exhibit 9, he wrote as follows:-
I will like to say, and my Chairman strongly shares this view, that the persistent, recalcitrant and disobedient attitude of the ONSA Chief Ajibade Adesina should be rebuffed if only to teach him and people of his class a lesson that the Government no matter how remote is more powerful than an individual, and that all Government functionaries including chiefs who draw their salaries from Government funds should consider it as part of their responsibilities to comply with Government instructions as much as possible, and never to demonstrate the type of recklessness, insolence and deliberate disrespect of constituted authority as has characterised Chief Adesina's actions since the beginning of this Chieftaincy tussle.
My only further comment on 4th defendant's letter is that it would be a sad day when our traditional authorities are reduced to such subservience that they cannot even protest when their traditional customs are being desecrated. In all the circumstances, the facts do not justify the conclusion reached by the learned trial Judge that the traditional kingmakers defaulted in doing their duties. He was clearly in error. The Court of Appeal which supported the learned trial Judge's refusal to grant a declaration that the present kingmakers are the only persons entitled to select a Baale of Ilora elect did so without even dealing with the so-called exclusion of the Ejemu, alleged default and appointment of warrant kingmakers. Its reason for so supporting the trial Judge was that -
this contention (that the Declaration is subject to the Chiefs Law) was eventually resolved in favour of the respondent. It is therefore not possible for the trial Judge in any event to have granted the declaration sought as framed.
The Court of Appeal did not deal with the exclusion of the Ejemu, it did not consider the learned trial Judge's reasons for supporting the appointment of traditional kingmakers. The Court was, with all respect, in error too.
It is my firm view that it accords with law and sound public policy to give section 13 of the Chiefs Law a strict construction, for otherwise, a Governor may at the slightest provocation, claim that the traditional kingmakers have defaulted in their duties and then proceed to appoint his nominees as warrant kingmakers. Such a development would make nonsense of the registered Declarations on Chieftaincy matters apart from seriously undermining the traditions and customs of the various cominunities in the matter of which Chiefs are to select their Baales, Obas etc.
The conclusions I have reached are therefore, first, that the Ejemu was improperly and unlawfully excluded from participating in the selection the Baale. Since under the unamended 1956 Declaration the Ejemu is one of the traditional Chiefs vested with the right to select the Baale elect, any selection in which the Ejemu has not participated is necessarily null and void. Further, any appointment of warrant kingmakers which does not include him is an exercise in futility. Second, there was no default in the performance of their traditional kingmakers within the meaning of Section 13(1) of the Chiefs Law, 1959. Accordingly, the purported appointment of warrant kingmakers by the Oyo State Government on 11th January1982 as per Exhibit D10 is null and void and of no effect. Equally the purported selection of the 3rd defendant/respondent on 13/1/82 as Baale of Ilora by the so-called warrant kingmakers is void and of no effect for nothing can be foisted on something which is void. See MacFoy v. U.A C. Ltd. (1961)3 All E.R. 1169.
This appeal must therefore succeed and I allow it. The judgments of the High Court of Oyo State, Oyo Judicial Division, dated 2nd June, 1982 as well as the judgment of the Court of Appeal, Ibadan Judicial Division dated 28th November, 1984 are hereby set aside. For the avoidance of doubt, I hereby grant the following reliefs:
1. A Declaration that the 1956 Baale of Ilora Chieftaincy Declaration is the only valid declaration in respect of the Baale of Ilora Chieftaincy and that the present Kingmakers are the only per sons entitled to select a Baale of Ilora elect.
2. A Declaration that the Secretary of Oyo South Local Government's Circular letter reference No. OYLSG535/Vol. 11/394 of 11th January, 1982 appointing warrant kingmakers and inviting such appointees to consider list of candidates for the purpose of filling the vacancy in the Baale of Ilora Chieftaincy is improper, invalid and of no effect.
3. The purported selection of the 3rd defendanti respondent by the warrant kingmakers on 13/1/82 as the Baale elect of Ilora is null and void and of no effect.
4. The purported appointment of the 3rd defendant/respondent as the Baale of Ilora by the Oyo State Governor as per the letter reference No. CB.1411 38118IVol.111644 of 11th February, 1982 is null and void and of no effect.
5. An injunction restraining the 3rd defendant/respondent from further participation in any processes for his installation as the Baale of Ilora, and if already installed, from further parading himself as the Baale of Ilora.
6. The Oyo State Government as a matter of extreme urgency is to set in motion the processes for the selection, appointment and installation of a new Baale of Ilora.
There will be costs against the respondents and in favour of the appellants jointly which I assess as follows:-
the High Court
Judgment delivered by
I have read the judgment of my learned brother Nnamani J.S.C. in this appeal. I am in entire agreement with the reasoning therein and the conclusion that this appeal be allowed.
My learned brother Nnamani, J.S.C. has dealt exhaustively with the issues in this appeal. I need only comment on a very narrow aspect concerning, the validity of the appointment of the 3rd Defendant which is affected by the Declarations sought in 1, 2, and 3. In a general sense this is the matter involved in the issues 1-5 to be determined in this appeal.
The facts giving rise to this appeal and the history of the litigation, the grounds of appeal, the issues to be determined, have been set out in considerable detail in the judgment of my learned brother Nnamani, J S C. It is unnecessary to repeat them. I adopt them. It is however pertinent for my purposes to state that there is no dispute as it is common ground that there was at the time the 1956 Baale of Ilora Chieftaincy Declaration - Exhibit P13. It 15 accepted that the 1956 Baale of Ilora Chieftaincy Declaration remained the only valid declaration in respect of the Baale of Ilora Chieftaincy.
The Baale of Ilora Chieftaincy Declaration 1956 has prescribed the ruling houses and their order of rotation. It also named the 8 chiefs entitled to select the holder of the Chieftaincy which are as follows:-
2. The Odofin
3. The Jagun
4. The Balogun
6. The Elemo
7. The Otunba
8. The Iyalode.
These are the persons entitled to select the person to succeed to the Baaleship of Ilora in the event of a vacancy.
The Declaration consists of the observance of the customary law relating to the filling of the vacancy in the chieftaincy. It also indicates the number of the ruling houses, the order of rotation, the number and identity of the kingmakers, etc.
The Declaration which is made under and by virtue of the exercise of powers under section 3(1) of the Chiefs' Law Cap. 19 Laws of Western Region 1959, is subject to that law. Hence the submission of Mr. Olanipekun for the appellants that the Declaration cannot be altered is unsound. For instance where there has been a default in the exercise of their duties by the persons entitled to select, other persons may be appointed to carry out the exercise of the function - see section 13(1) of the Chiefs Law; 1959, now s.17 Chiefs Law of Oyo State, Cap. 21, 1978. Again there is provision to amend the Declaration where the declaration made is discovered to be defective as not accurately representing the customary law of the relevant Chieftaincy -See s. 9A Chiefs (Amendment) Law No.14 of 1968. Thus by section 9A(3) the Declaration could be amended where the competent Chieftaincy Committee refuses to act. But section 9(b)(1) stipulates that such amended Declaration shall be reregistered or registered as the case may be. It is of crucial importance to observe that the 1956 Baale of Ilora Chieftaincy Declaration has not been amended. Indeed there is no process in motion to effect an amendment.
Thus those entitled to select the Baale of Ilora remain those persons indicated in the 1956 Declaration. Until the Declaration of 1956 is altered or set aside, no other persons are in law entitled to select the Baale of Ilora.
The Governor of Oyo State thought otherwise. Relying on a petition against the choice of 1st plaintiff, as the Baale of Ilora, the Governor instituted an administrative inquiry 'to determine the validity of the statement of the fact that the candidate selected by the kingmakers is a member of the family whose head is one of the Kingmakers." After the inquiry in which none of the kingmakers, at least, not the Ejemu, consequently excluded from participating in the selection of a candidate, was invited, the Secretary of the Oyo South Local Government was directed inter alia as follows
It has also been noted that since Chiefs Elemo and Ejemu are also heads of their ruling houses, they cannot be judges in their own case. In this pending action on the recommendation that the declaration should be amended to remove these two chiefs from the list of kingmakers, they should not be allowed to take part in the present appointment exercise. In this case, since the stool of Elemo is at present vacant, the Ejemu who is in post should not be allowed to take part in the subsequent meeting of the Kingmakers to select a new Baale of Ilora.
Thus without amending the 1956 Declaration, the Governor proceeded to exclude a member entitled to select the Baale from exercising a right vested in such member by law. The reason for excluding the Ejemu, does not fall within the ground provided in section 13(1)(a), namely failure to discharge the function conferred on him, i.e. to fill vacancy in a ruling house. The exclusion of the Ejemu from participating in the selection of the Baale of Ilora was Illegal and contrary to the provisions of the Chiefs Law.
The second declaration questions the validity of the appointment of warrant Kingmakers for the purpose of filling the vacancy in the Baale of Ilora Chieftaincy. There is no doubt that section 13(1) of the Chiefs Law Cap. 19 empowers the Governor to remove, on grounds of default, any of the Chiefs named in the Declaration, and to appoint other persons to perform their functions in place of the chiefs named in the declaration who are alleged to have been in default.
Section 13(1) in pari material with s.17 of the Chiefs' Law Cap.21, Laws of Oyo State provides as follows
(a) the Secretary of the competent Council or the Kingmakers fail to discharge any function conferred upon them by section 11 within the time required; or
(b) in the case of a recognised chieftaincy, other than a ruling house chieftaincy, any persons entitled to nominate, select or appoint to a vacancy fail to exercise their powers within such time as appears reasonable to the Minister, the Minister, (now the Governor) may appoint such persons to exercise and perform those powers and duties as he may think fit, in place of the secretary, Kingmakers or other persons in default.
Section 13(1) is the applicable law at the time.
The Governor is entitled to exercise powers under section J3(1) in cases of default of any person or persons entitled to nominate, select or appoint to a vacancy. Both the trial Judge and the Court of Appeal found that the traditional Kingmakers defaulted in their duties. It is curious that in coming to this conclusion the courts ignored the fact that the Ejemu was excluded from participation in the selection process, when he was willing and ready to exercise his legal duty. There was evidence before the trial Judge that the Onsa who was the head of the Kingmakers was willing to convene and indeed convened a meeting of the Kingmakers. The meeting so convened could not hold because of the insistence of the 4th Defendant, Secretary of the South Oyo Local Government on the exclusion of the Ejemu, and the insistence of the Ejemu, Chief J.O. Wojuola, to participate and the support of the Onsa that the Ejemu be allowed to exercise his right. It is difficult in the circumstances to comprehend how such a situation could be regarded as default on the part of these persons, or the Kingmakers as a whole, to perform their functions. There was no basis therefore for the finding that the Kingmakers were in default in the performance of their functions.
It is well settled and in favour of presumption of correctness of findings of facts by Court below, this court will not lightly interfere with concurrent findings of facts made by two courts below - See Henry Stephens Eng. Ltd. v. Complete Home Enterprises Ltd. (1987)1 NWLR (Pt.47) 40 S.C. The rationale for the view that concurrent findings of facts in two lower courts ought to be invariably accepted is that the courts are presumed to have considered all the facts necessary for their coming to such findings. Where however sufficient reasons can be adduced demonstrating that the findings were founded on erroneous considerations, or there have been omission of relevant facts, this court is perfectly entitled to interfere and to reverse such findings - See Ogbodu v. State (1987)2 NWLR (pt .54)20. In Olujinle v. Adeagbo (1988) 2 NWLR (pt.75) at p.255 Nnaemeka-Agu JSC. stated the attitude of
Court as follows
For the avoidance of doubt, I should make it clear that this court does not make it a habit to upset concurrent findings of fact and concurrent judgment by two or three lower courts. But once the complaint is that the approach made by the trial court and confirmed by the intermediate courts of appeal to the evidence called at the trial is erroneous or some other special circumstances are said to exist, after due leave this court goes into the matter and finds the point well taken, it will not hesitate to interfere in the interest of justice. This is the result of the leading cases on the point including Mogo Chinwendu & Ors. v. Nwangbo Mbamali & anor. (1980) 3-4 SC. 31; George Onubruchere & Anor. v. Ivwromoebo Eseigne & anor. (1986)1 NWLR (part 19) 799. Mohammed Ojomu V. Salawu Ajao (1983) 9 SC. 22 at p.53.
(Italics mine for emphasis).
On the above principle, the finding of the trial Judge that the Kingmakers were in default in the performance of their functions, and its affirmation by the Court of Appeal were based on inadequate and erroneous considerations of the facts requisite for the making of such findings. The Kingmakers were not in default in the performance of their functions. Accordingly there was 110 basis for the Governor's exercise of powers under section 13(1) of the Chiefs Law, Cap. 19 Laws of Western Region 1959 to appoint Warrant Kingmakers. It follows therefore that the appointment of Warrant kingmakers in Exh. D10 whilst the Declaration of 1956 was still unamended and valid, and whilst the Kingmakers named in the Declaration of 1956 had lot defaulted in the performance of their functions, is illegal, null and void. A fortiori, the purported selection of the 3rd Defendant/Respondent on 18/ 1/82 as the Baale of Ilora is void and of no effect.
For the reasons 1 have given above and for the much fuller reasons in the judgment of my learned brother Nnamani JSC, this appeal therefore succeeds. The judgment of the High Court of Oyo State, Oyo Judicial Division dated 2nd June, 1982 as well as the judgment of the Court of Appeal, Ibadan Judicial Division. dated 28th November, 1984 are hereby set aside.
The following reliefs are hereby granted.
1. The 1st and 2nd Declarations sought for.
2. The purported selection of tite 3rd Defendant/Respondent by the Warrant Kingmakers as the Baale elect of Ilora is null and void.
3. The purported appointment of the 3rd Defendant/Respondent by the Oyo State Governor as the Baale of Ilora is null and void.
4. Injunction restraining the 3rd Defendant/Respondent from further participation in any processes for his installation as the Baale of Ilora, and if already installed from further parading himself as the Baale of Ilora.
5. The Oyo State Government to urgently set in motion the processes for the section . appointment and installation of a new Baale of Ilora.
shall pay cost to the appellants as follows - In the High Court
Judgment delivered by
I have read the judgment of my learned brother Nnamani, J.S.C. in this appeal. I am in entire agreement with the reasoning therein and the conclusion that this appeal be allowed.
Judgment delivered by
I have had the opportunity of reading in draft the lead judgment of my learned brother, Nnamani, J.S.C. I agree entirely with him that the appellants' appeal has merit and must succeed. It is just to emphasise the latter that I intend to contribute the following to the lead judgment:
The facts leading up to the claims of the appellants against the respondents have been admirably set down in the lead judgment. The claims are as follows:
1. Declaration that the 1956 Baale of Ilora chieftaincy declaration is the only valid declaration in respect of the Baale of Ilora chieftaincy and that the present kingmakers are the only persons entitled to select a Baale of Ilora-elect.
2. Declaration that the Secretary of Oyo South Local Government's circular letter reference No.OYLSG. 5351vo1.111394 of 11th January, 1982 appointing warrant kingmakers and inviting such appointees to consider list of candidates for the purposes of filing (sic) the vacancy in the Bale of Ilora chieftaincy is improper, invalid and of no effect.
3. Declaration that the purported meeting of the warrant kingmakers held at Jobele on Wednesday 13th January, 1982 and the selection of a candidate for the filing (sic) of Baale of Ilora chieftaincy is against the customs and traditions of Ilora, unconstitutional, invalid, improper and of no effect.
4. Declaration that the 1st plaintiff is the only candidate validly elected as Baale of Ilora-elect.
5. Injunction restraining the 3rd defendant from further participation in the processes (as Bale-elect) appointment and installation of the Baale of Ilora and from parading himself as Baale elect of Ilora.
6. Injunction restraining the 1st defendant from approving the 3rd defendant or any other candidate that the 4th defendant may submit to him as Baale elect of Ilora and subsequently installing any such candidate as Baale of Ilora.
7. Injunction restraining the 4th defendant from further participating in any exercise connected with the processes of the approval and installation of the 3rd defendant as Baale elect of Ilora.
I do not state all over again the facts giving rise to the present action. Suffice it for me to say for this contribution I am making to the lead judgment the following are common grounds:
(a) There was in 1956 a Baale of Ilora chieftaincy declaration which declaration at all times material to this case has not been revoked or amended;
(b) that under the said 1956 chieftaincy declaration the kingmakers for the purposes of appointing a Baale of Ilora elect in case of a vacancy in that chieftaincy are 8 and they are designated by reference to their titles. They are:
2. The Odofin
4. The Balogun
6. The Elemo
7. The Otunba
8. The lyalode.
(c) there was a vacancy in the Baale of Ilora chieftaincy in March 1979 and pursuant to an invitation by the Secretary to the Oyo South Local Government to the kingmakers to select a new Baale of Ilora elect, the kingmakers who were alive among the 8 kingmakers only met on 15th January, 1981 with the secretary, to the Oyo South Local Government in attendance and elected the 1st appellant as the Baale of Ilora elect. The living kingmakers who were 5 included the holders of the chieftaincy titles of the Onsa and The Ejemu;
(d) upon the decision in (c) above being communicated to the 1st respondent, the then Governor of Oyo State and following petition against the said appointment the first respondent set aside the appointment, and directed that the whole exercise should start de novo with the further directive that the Ejemu be excluded from taking part in the new exercise;
(e) the whole exercise was in fact commenced by the kingmakers but the Ejemu with the support of the Onsa insisted vehemently on taking part physically in the deliberations, a move which was equally opposed at the meeting. Hence there was a stalemate at the new exercise;
(f) the 1st respondent interpreted the impasse at the new exercise in the circumstances in which it concurred as a default by the kingmakers in the performance of their duty in the case of a vacancy in the Baale of Ilora chieftaincy to select a Baale elect, having been duly required to do so;
(g) consequent upon (f) above, the 1st respondent appointed warrant kingmakers to do the duty entrusted to the kingmakers in the chieftaincy declaration;
(h) the warrant kingmakers met and appointed the 3rd respondent as the Baale of Ilora elect which appointment was approved by the first respondent.
As 1 have said earlier on in this judgment there is no dispute that the 1956 Baale of Ilora chieftaincy declaration was applicable when a vacancy existed in the chieftaincy in March 1979. No amendment was at any time material to this case, made to the list of kingmakers contained in the chieftaincy declaration. The chieftaincy declaration is no doubt an instrument which has a constitutional status in that it was made under a law which was duly passed in the manner provided for by the constitution of this country. So the kingmakers in the chieftaincy declaration, each and all of them have a constitutional right to take part in the selection or appointment of Baale of Ilora elect in case of vacancy in that chieftaincy. So The Ejemu being a kingmaker under the declaration has a constitutional right to take part in such an exercise.
It is not seriously contested before us that the 1st respondent, the then Governor of Oyo State, could lawfully under the Chiefs Law of Oyo State appoint warrant kingmakers to perform the duties of the kingmakers in the 1956 chieftaincy declaration if the latter defaulted in performing any of their duties. So the important point, in the final analysis in this case, for determination is whether the 1st respondent was right or not in coming to the conclusion that in the circumstances of this case about which there is little or no dispute, the kingmakers defaulted in performing their duty to select a Baale of Ilora elect when required to do so. Central to these circumstances it must be remembered, is the fact of the directive from the 1st respondent forbidding the Ejemu, a kingmaker, from performing his constitutional right of taking part in the selection or appointment of the Baale elect which led to the deadlock in the exercise for the selection or appointment.
In Re Young and Harston's Contract (1886) 31 Ch.D. 168 at 174, Bowen, L.J. said, as regards the term wilful default in a contract with which the case before him was concerned:
The term "wilful default" though one in common use in such contracts is not a term of art, and to pursue authorities with a view to defining for all time what is its meaning in a contract like this appears to me to press citation far beyond the point at which it ceases to be useful. Default is a purely relative term, just like negligence. It means nothing more, nothing less, than not doing what is reasonable under the circumstances, not doing something which you ought to do, having regard to the relations which you occupy towards the other persons interested in the transaction. The other word which it is sought to define is "wilful." That is a word of familiar use in every branch of law, and although in some branches of the law it may have a special meaning, it generally, as used in courts of law implies nothing blameable, but merely that the person of whose action or default the expression is used, is a free agent, and that what has been done arises from the spontaneous action of his will. It amounts to nothing more than this, that he knows what he is doing, and intends to do what he is doing, and is a free agent.
Since we are here concerned with the word "default" simpliciter, it will be best to limit ourselves to the definition of "default" in the above passage, which I am adopting for the purpose of what I am now going to say.
Can it be said that the Ejemu with the assistance of the Onsa by insisting that he would exercise his constitutional right has done anything which is unreasonable in the circumstances of this case? I think the answer is "no"
In view of what I am going to say presently, I have to say a word or two more on what I said above that each of the kingmakers in the 1956 Baale of Ilora Chieftaincy Declaration had a constitutional right to take part in the appointment of a Baale of Ilora. In Section 2 of the Chiefs Law of Oyo the word "kingmakers" is defined as follows:-
"Kingmakers" in relation to a chieftaincy means the persons entitled in accordance with customary law to appoint a person to be the holder of that chieftaincy.
Section 4 of the same law provides for the making of a chieftaincy declaration by a committee of a competent council, section 7 provides inter alia for its approval by the Executive Council and section 8 for its registration. And in respect of a registered declaration, as 1956 Baale of Ilora chieftaincy declaration undisputedly is, section 9 of the same law provides:
Where a declaration in respect of a recognised chieftaincy is registered under this Part, the matters therein stated (including any recommendation under paragraph (b) of subsection (2) of section 4) shall be deemed 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 rule.
Sections 10 and 11 of the Chiefs Law provide for the amendment and re-registration of a registered declaration. It however goes without saying that until a registered declaration is amended in the manner so provided in sections 10 and I I of the Chiefs Law, the provisions of S.9 of the Chiefs Law will continue to apply to it. So, the kingmakers in the 1956 Baale of Ilora Chieftaincy Declaration because of section 9 of the Chiefs Law are the persons entitled in accordance with customary law to appoint a person to be the holder of the Baale of Ilora Chieftaincy to the exclusion of any other customary usage or rule. It is accordingly their statutory or constitutional right to do so.
In the letter from the Secretary to the Government of Oyo State of 24th March 1981 to the secretary, Oyo Local Government excluding the Ejemu from participating in the meeting of the kingmakers to select a new Baale of Ilora it was stated in para. 4 thereof as follows:-
It has also been noted that since Chiefs Elemo and Ejemu are also heads of their ruling houses, they cannot at the same time function as kingmakers because they cannot be judges in their own case. In this regard, pending action on the recommendation that the declaration should be amended to remove these two chiefs from the list of the kingmakers, they should not be allowed to take part in the present appointment exercise. In this case, since the stool of Elemo is at present vacant, the Ejemu who is in g post should not be allowed to take part in the subsequent meeting of the kingmakers to select a new Baale of Ilora.
In view of the position of the law as I have stated it above the directive excluding the Ejemu from taking part in the exercise for the appointment of a new Baale of Ilora, for the dubious reason that he would otherwise he a judge in his own cause, because the stool of Elemo was also vacant, pending the amendment to the 1956 Baale of Ilora Chieftaincy Declaration, was contrary to the law and therefore illegal, null and of no effect. I will further add that the exclusion of the Ejemu from the exercise for any reason pending the amendment would be unlawful. The proper way to achieve the intended re suit would be to amend the Declaration by removing the name of the Ejemu from the list of kingmakers before embarking on the exercise for the selection or appointment of a new Baale of Ilora.
It was the unlawful directive from the secretary to the Oyo Government which the Onsa and the Ejemu opposed which created the crisis as a result of which the kingmakers in the 1956 Baale of Ilora Chieftaincy could not per form their statutory or constitutional duty. The opposition of the Onsa and the Ejemu to such an unconstitutional act should in my judgment not affect the kingmakers adversely.
To put it tersely, it was the Government of Oyo State, which unlawfully frustrated the kingmakers in the discharge of their duty under the 1956 Baale of Ilora Chieftaincy Declaration. In my judgment therefore, the Government of Oyo State of which the 1st respondent was the Chief Executive can not be heard to say that the kingmakers defaulted in the performance of their duties and then proceed on that untenable hypothesis to appoint warrant kingmakers to perform their function under S.17 of the Chiefs Law.
In effect the statutory condition precedent for the appointment of war-it kingmakers, namely, failure or default by the kingmakers in the performance of their duty, has never occurred in this case.
In my judgment both the trial court and the lower court were wrong in holding otherwise.
For the above reasons and the fuller reasons given in the lead judgment lord Nnamani, J.S.C., I allow the appellant's appeal. I abide by all consequential orders made in the lead judgment including the order as to costs.
Judgment delivered by
I have had the privilege of reading in advance the lead I of my learned brother, Nnamani, J.S.C., with which I entirely the reasons so comprehensively stated in the judgment, I agree that there is merit in the appeal and it should succeed. It is accordingly allowed. The judgments and orders of the trial court and the Court of Appeal are hereby set aside and in place thereof I adopt the reliefs granted in the lead judgment. I also abide by the consequential orders as to costs.