Constitution of Nigeria

Court of Appeal
High Courts

Home Page

Law Reporting

Laws of the Federation of Nigeria
Legal Education
Q&A
Supreme Court
Jobs at Nigeria-law

 

In The Supreme Court of Nigeria

On Friday, the 8th day of December 1989

SC 5/1988

 

Before Their Lordships

 

 

 

Andrews Otutu Obaseki

......

Justice, Supreme Court

Muhammadu Lawal Uwais

......

Justice, Supreme Court

Saidu Kawu

......

Justice, Supreme Court

Abdul Ganiyu Olatunji Agbaje

......

Justice, Supreme Court

Philip Nnaemeka-Agu

......

Justice, Supreme Court

  

 

Between

 

Timothy Adeilo Adefulu &12 Ors.

.......

Appellants

 

And

 

Bello Oyesile & 3 Ors.

 (for themselves and the Agaigi Ruling House of Ilishan-Remo)

and 2 Ors.)

.......

Respondent

Attorney-General of Ogun State
Governor of Ogun State

 

Judgement of the Court

Delivered by

Muhammadu Lawal Uwais, J.S.C.

 

 

The 1st, 2nd, 3rd and 4th Respondents were the plaintiffs in the High Court of Ogun State. They instituted an action against all the appellants and the 5th and 6th Respondents, as Defendants, claiming in their writ of summons as follows

 

1.      A declaration that the appointment, the purported approval and the new installation of the first Defendant (herein 1st appellant) as the new Olofin of Illishan-Remo are irregular, unlawful and therefore, null and void as same were not done in accordance with the provisions of the Western Region (Ogun State) of Nigeria Chiefs Law and the relevant Chieftaincy Declaration in respect of succession to the stool of Olofin of Ilisan-Remo.

 

2.      Injunction restraining the first Defendant from parading himself as the Olofin of Ilishan-Remo and the other Defendants from recognising the said first Defendant as the Olofin of Ilisan-Remo.

 

In the trial court (Sofolahan, J.) the parties agreed on the following facts. The chieftaincy title of the Olofin of Ilishan-Remo in Ogun State became vacant. The Secretary to the Ijebu Remo Local Government, Mr. J. 1 Sholaja (P.W.1) by a notice (exhibit A) sent to the Agaigi Ruling House called for the nomination of a candidate or candidates for the consideration of the Kingmakers for appointment of a new Olofin of Ilisan-Remo. The notice reads:-

 

 

IJEBU REMO LOCAL GOVERNMENT

NOTICE

FILLING OF VACANCY OF OLOFIN OF ILISHAN

 

Pursuant to section ll(1)(a) of the Chiefs Law Cap. 19 NOTICE IS HEREBY GIVEN to AGAIGI RULING HOUSE, whose turn it is to provide a candidate for the vacant stool of Olofin of Ilisan to nominate within 14 (Fourteen) days of the date of this notice candidate or candidates for the consideration and selection by the Kingmakers.

 

2.      Persons who may be proposed as candidates to fill the vacancy must be -

 

(a)      Members of the Agaigi Ruling House;

 

(b)      Of the Male or Female line at will with a popular support.

 

3.      The Agaigi Ruling House shall nominate at a family meeting to be summoned by the Head of the family candidate/candidates for the Chieftaincy to be presented by the family head to the Kingmakers.

 

4.      If within the period of 14 days given above, the Agaigi Ruling House fails to submit the name or names of a candidate or candidates the next ruling house in order of rotation will be called upon to provide candidate for the vacancy in accordance with section 11(1)(c) of the Chief Law Cap. 19.

 

5.      The Secretary to Local Government will attend the meeting of both the Ruling House and the Kingmakers as an observer and he should be informed in good time of the date, time and place of the meetings to enable him to attend.

 

Made this 12th day of February, 1981.

 

 

(Sgd.) J. 1. Sholaja

Secretary

Ijebu Remo Local Government.

Our Ref No. IRLG. 779/247

Local Government Secretariat,

Private Mail Bag No.2015,

Sagamu.

 

On receipt of the notice by the Agaigi Ruling House a meeting of the members of the Agaigi Ruling House was called for the 25th day of February, 1981. At the meeting Bello Oyesile (1st Respondent) was appointed as the head of the Agaigi Ruling House and he thereby became a kingmaker. Nominations of candidates were made at the meeting for submission to the kingmakers for the purpose of appointing one of the nominated candidates as the next Olofin. The kingmakers, namely the 2nd to 13th appellants and the 1st Respondent, met on the 17th day of March, 1981. The kingmakers selected the 1st appellant as the next Olofin and the Governor of Ogun State (the 6th Respondent) approved the appointment of the 1st appellant as the Olofin of Ilisan-Remo.

 

The disagreement between the parties arose in respect of the following facts. The 1st, 2nd, 3rd and 4th Respondents' case is that at the meeting held on the 25th day of February, 1981 by the Agaigi Ruling House, four members of the Ruling House were jointly nominated and approved by votes as the candidates to be considered by the kingmakers. The four candidates were voted for en bloc by 82 of the 97 members of the Ruling House who were present at the meeting. After the voting, two other names were proposed as candidates also to be forwarded to the kingmakers. This proposal was opposed by some members of the Ruling House. As a result the proposal was put to vote and was defeated by 82 votes to 15. The 2nd Respondent, as member of the Ruling House acted as its Secretary at the meeting. 2nd Respondent took down the minutes of the meeting (exhibit "G") and prepared a certificate of nomination (exhibit "C"). Both exhibits "C" and "G" which were thumb-printed and signed by 1st and 2nd Respondents respectively, were sent to each of the kingmakers and the Secretary to Ijebu Remo Local Government (P.W.1). Apart from the 1st and 2nd Respondents four other members of the Ruling family signed or thumb-printed exhibit "C" which reads thus:

 

 

CERTIFICATE OF NOMINATION

 

It is hereby certified that as the family meeting of the Agaigi Ruling House held today 25th February, 1981 at the residence of Mr. Bello Oyesile, the Head of the family the following candidates were nominated for the vacant stool of Olofin of Ilisan for consideration and selection by the kingmakers.

 

1. 

Rabiu Fujamade

Male Line

2. 

Abel Olufemi Osude

Male Line

3.

Kola Ileke

Female Line

4. 

Lamina Ogun Fakoya

Female Line

 

SIGNED By:

 

1.      H.R.T.I. of Bello Oyesile. ( Family Head)

 

2.      (Sgd.) 0.0. Okulaja-Secretary

 

3.      (Sgd.) Alhaji B. S. Ladegbuwa

 

4.      (Sgd.) D. F. Sofola

 

5.      (Sgd.) ? ? ? Balogun

 

6.      H.R.T.I. of Alhaji Tijani Adebayo.

 

 

The Secretary to the Ijebu Remo Local Government (P.W.1) was present, as an official observer throughout the duration of the meeting held by the Agaigi family. He wrote down his observation at the meeting (exhibit "B") and then wrote a letter to the kingmakers. The letter (exhibit "Q") reads as follows -

 

IJEBU REMO LOCAL GOVERNMENT

LOCAL GOVERNMENT SECRETARIAT

P.M.B. 2015, SAGAMU.

 

Our Ref. No. IRLG. 779/9/265 6th March, 1981

 

To: ALL KINGMAKERS

        OLOFIN OF ILISAN

 

The Osugbos

 The Emos

1. 

 The Oliwo  

1. 

 The Olori Emo (Ademo)

2. 

The Apena 

2. 

Olori Ebi - (Iwaye)

3.

 Igbakeji Apena

3.

Olori Ebi - (Agaigi)

4.   

 Olotu Iware

4.   

Olori Ebi - (Isokun)

5. 

Igbakeji Olotu Iware

5. 

Olori Ebi - (Fesogboye)

6. 

Olotu Ijo 

6. 

Olori Ebi - (Kore gun)

7. 

 Igbakeji Olotu Ijo   

7. 

Olori Ebi - (Serolu)

8.  

 Olutu Igan

8.  

Olori Ebi - (Ladejobi)

 

Filling of Vacancy of Olofin of Ilisan

 

Following the meeting of the Agaigi Ruling House held on the 25th February, 1981, for the nomination of candidate/candidates on the above subject matter, I have been informed by the Agaigbi Family that the minutes of the meeting and the Certificate of Nomination have been forwarded to the kingmakers for consideration and selection.

 

2.      In accordance with section 11(i)(d) of the Chiefs Law Cap. 19, the kingmakers shall within and not more than seven (7) days of the submission of the names of candidates proceed to select the candidate to fill the vacancy at a meeting to hold at the Oliwo's House.

 

3.      As I am to attend the meeting of the kingmakers as an observer, I shall be grateful, if I can be informed in good time of the date, time and address of their meeting to enable me to attend.

(Sgd.) J. I. Sholaja

for Secretary

Ijebu Remo Local Government.

 

At the meeting of the kingmakers, which was held on the 17th day of March, 1981, and was attended by P.W. 1. again as an official observer, six candidates instead of the four forwarded by the Agaigi Ruling House were considered. Part of the minutes of the meeting held by the kingmakers (exhibit "'S") reads -

 

The purpose of the meeting was to select a candidate from the nominations before the kingmakers for the vacant stool of the Olofin of Ilisan Remo.

 

The Apena, Chief Banjo Onabiyi stated at the meeting that prior to this day, the Osugbo section of the kingmakers had held three meetings, two with the Emos, after receiving six nominations as recorded in the minutes held on the 25th of February, 1981. He stated that subsequently, and in accordance with traditional procedure for the exercise of selecting a choice from among nominated candidates, a Babalawo, (an Ifa priest) was called to find, by Ifa oracle, the best and suitable candidate from the six nominated candidates. He declared that consequently one of the candidates had been picked as suitable for the vacant throne of the Olofin of Ilisan.

 

The Secretary of Ijebu Remo Local Government, cut in to say that he received four nominated names after the meeting of 25th February, 1981 contrary to the six nominations made at that meeting: Namely:

 

1. 

Rabiyu Fujamade

nominated by Ladegbuwa Alhaji Salisu and supported by seventy-two votes.

2. 

 Mr. Abel Olu Osude

3.

Mr. Kola Odubawo

4. 

Mr. Lamina Fakoya

5.

Mr Timothy Adeilo Adefulu

nominated by Mr. Simeon Ifede and supported by thirteen votes.

6. 

Alhaji Rufai Awodein.

 

The secretary to Remo Local Government went further to say, at this meeting of 17th March, 1981 that qualification for the selection of a candidate lies entirely on the qualities and personal attributes of a candidate and not on the divination by Ifa oracle.

 

At this juncture, the Igbakeji Apena, Chief Sogbuyi Fagorala stated that the Osugbo members of the kingmakers had a list of the six nominated candidates as contained in the minutes of the Agaigi Ruling House held on the 25th February, 1981 at which the secretary was present before an Ifa priest was called to cast his oracle.

 

Then Mr. Bello Oyesile, the Head of Agaigi Ruling House said that he was not aware of the names of the candidates presented to the kingmakers. He said that all that happened was that Mr Rabiyu Fujamade made him to thumb print a paper while of course he (Rabiyu Fujamade) did not tell him that he was aspiring for the vacant stool.

 

Following this, the Secretary to Ijebu Remo Local Government read the minutes of the meeting of 25th February, 1981 as taken by him to remind Mr. Bello Oyesile the Head of Agaigi Ruling House of the fact that Chief Olulaja was the secretary for that meeting and not Mr. Rabiya Fujamade.

 

After this, Chief Banjo Onabiyi, the Apena, got up and said that all the kingmakers found from among the six nominated candidates Mr. Timothy Adeilo Adefulu as the suitable choice for the vacant stool of the Olofin of Ilisan Remo judging from his personal qualities and attributes.

 

The secretary to Ijebu Remo Local Government, Mr. Solaja then asked Mr. Bello Oyesile, the Head of Agaigi Ruling House if he listened to and heard what the Apena Chief Banjo Onabiyi said Mr. Bello Oyesile replied by saying that the kingmakers should pick the best candidate from the six nominations before them.

 

Following that, the Apena, Chief Banjo Onabiyi speaking for the kingmakers got up a second time and said that the kingmakers were making their choice by picking Mr. Timothy Adeilo Adefulu as the suitable candidates to fill the vacant stool of the Olofin of Ilisan Remo. At this point the Apena, facing all the members of the kingmakers thereby present, asked if he was expressing their choice. All of them present said, "Yes".

 

Finally, the secretary to Ijebu Remo Local Government asked all the members present if there was any contrary choice. Nobody said anything contrary to the unanimous choice.

 

Information about the decision of the kingmakers leaked to the members of the Agaigi Ruling House and they caused their solicitors to write to P.W. 1 and complain that the wrong procedure had been followed by the meeting of the kingmakers and that a candidate not nominated by the Agaigi Ruling House had been selected by the kingmakers as the next Olofin of Ilishan-Remo. Two letters (exhibits D and F) to that effect were written by the Solicitors to P.W.1 who did not bother to reply them. In addition two copies of Exhibits D and E were sent to the Deputy Governor of Ogun State who was then in charge of Chieftancy Affairs. A petition (exhibit H) on the same issue was sent to the Deputy Governor. Another petition (exhibit J) was also sent to the Governor of Ogun State (6th Respondent). All the protestations notwithstanding, there was a radio announcement that the selection of 1st appellant as the new Olofin had been approved by the Governor of Ogun State (6th Respondent). The same announcement was contained as news in the issues of the Nigerian Tribune and Sketch newspapers of the 20th April, 1981. A government gazette notice confirming the news was issued on the 14th day of May, 1981. The gazette notice (exhibit M) reads :-

 

 

OGUN STATE OF NIGERIA

GAZETTE NO.21 VOL.6, 14TH MAY, 1981

OGUN STATE NOTICE NO.88

The Chiefs Law (Cap. 19)

APPROVAL OF

APPOINTMENT OF RECOGNISED CHIEF

 

It is hereby notified for public information that in exercise of the powers conferred by sub-section (1) of section 16 of the Chiefs Law, Cap. 19 and by virtue of all other powers enabling in that behalf, the Deputy Governor of Ogun State of Nigeria has on the 13th day of April, 1981 approved the appointment of TIMOTHY ADEILO ADEFULU as the Olofin of Ilisan in the Irepodun Local Government Area.

 

Dr. A. Ogunleye,

Secretary to the Government of Ogun State Abeokuta, 21st April, 1981."

 

The case for the 1st appellant was that as a member of the Agaigi Ruling House, he was qualified to be nominated as a candidate for appointment as the Olofin of Ilisan-Remo. That he was, together with another, duly nominated at the meeting held on the 25th day of February, 1981 by 15 members of the Ruling House. The 1st appellant also contended that the procedure followed by the kingmakers was proper and not irregular.

In his considered judgment the learned trial Judge held that the 1st appellant was a member of Agaigi Ruling House and was therefore qualified to be nominated as a candidate for appointment as the Olofin of Ilisan-Remo in accordance with the provisions of section 14 subsection (1) of the Chiefs Law, Cap. 20 of the Laws of Ogun State of Nigeria, 1978 which reads:-

 

14     (1)      A person shall, unless he is disqualified, be qualified to be a candidate to fill a  vacancy in a recognised chieftaincy if -

 

(a)      he is proposed by the ruling house or the persons having the right to nominate the candidate according to customary law; and

 

 

(b)(i) he is a person whom the ruling house or the persons having the right to nominate candidates are entitled to propose according to customary law, as a candidate; 

 

(ii)    he is unanimously proposed as a candidate by the members of the ruling house or    the persons entitled to nominate candidates.

 

The learned trial Judge then considered the manner in which a ruling house should nominate or propose a candidate to fill a vacancy in a chieftaincy. He stated as follows –

 

The main question to consider therefore is the voting that took place at that meeting (of the Agaigi Ruling House) and its effect. The Law was silent as to the voting or non-voting. One could, in my opinion, take any view favourable to him (as both counsel have done) depending, of course on the circumstances of each case. I held the view in suit No. H.C.S./33/80 Mrs. Juliana Sokoya & Ors. v. Emmanuel Oyesanya & Ors. (unreported) that the best way to know the wishes of the family is by voting which is a worldwide accepted procedure of either eliminating or reducing (sic) unwanted candidate or candidates for official positions be it in a club or association, local, state or national elections. The reason why I held the view in that case was because it was clear that the family wanted to nominate only one candidate for the consideration of the kingmakers in accordance with section 14(1) (b) (ii) of the Chiefs Law; if I had found the position to be contrary voting would have been unnecessary. Even in that case there was an element of fraud. But, in a situation where it is free for all as in this case, and there are many contestants from different sections of the family, voting would be unnecessary. ............. Voting in this case was a futile exercise. In fact I consider the first voting on the four names as a mere camouflage because none of them was dropped. It appeared to me to be a design to achieve a particular goal. (Italics mine)

 

The learned trial Judge went on to reject the contents of the certificate of nomination (exhibit "C") which the Agaigi Ruling House sent inter alia to the kingmaker. He said -

 

It is therefore finally clear to me that exhibit "C" did not represent the true position as recorded in exhibit "B" (the observation of P.W.1 at the meeting of Agaigi Ruling House produced in writing) and "G". (official minutes of the meeting held by Agaigi Ruling House written by the 2nd Respondent). On the contrary exhibits "R" (observation of P.W. 1 at the meeting of the kingmakers made in writing) and exhibit "S" (official minutes of the meeting of the kingmakers) represent the true account of what transpired at the kingmakers' meeting of 17/3/81 ............................. On the above findings, I hold that the kingmakers had made valid appointment in the manner stipulated by the Law. (Parenthesis mine)

 

Consequently, the learned trial Judge refused to grant the declaration and the prayer for injunction sought by the 1st, 2nd, 3rd and 4th Respondents. He then dismissed the action.

 

Not satisfied with the decision of the High Court, the 1st, 2nd, 3rd and 4th Respondents appealed against it to the Court of Appeal. The decision of the learned trial Judge was reversed by the Court of Appeal which held that the learned trial Judge was wrong in holding that voting at the meeting held by the Agaigi Ruling House was a futile exercise and that the view held by the learned trial Judge in the unreported case of Mrs. Sokoya & Ors. V. Emmanuel Oyesanya & Ors., (supra) was the better view. The Court of Appeal (per Ogundare, J.C.A.) went on to consider the provisions of clause V of the Declaration of the Customary Law (exhibit "P" )regulating the selection of the Olofin of Ilisan chieftaincy. The clause reads –

 

(v)   The method of nomination by each ruling house is as follows:

 

        The ruling house whose turn it is to provide a candidate shall nominate at a family meeting to be summoned by the family head, a candidate for the chieftaincy to be presented by the family to the kingmakers.

 

The Court of Appeal stated as follows:

 

How is the ruling house to express its decision as to who is or are nominated? The answer to this question, in my view, is to be found in the provisions of section 52(a) of the Interpretation Law Cap. 51, Laws of Western Nigeria 1959 applicable to the interpretation of the Chiefs Law of Western Nigeria - the relevant Law at the time of the events leading to these proceedings (but now see section 53(a) of the Interpretation Law, Cap. 50 Laws of Ogun State, 1978 to which counsel's attention was drawn by the Court and which is, word for word, the same as section 52(a) of the Interpretation Law of Western Nigeria). Section 52(a) provides:

 

Save as may be otherwise expressly provided by any written law -

 

(a)     Whenever any act or thing is by any written law required to be done, or any decision taken by a body of persons consisting of no less than three, such act or thing may be done, or such decision taken, in the name of that body by a majority of those persons; .....................

 

Section 52(a) is clear and unambiguous and has to be given its natural interpretation. Applying it now to the matter on hand, the Agaigi ruling house is a body of persons consisting of not less than three and the act of nomination required of it to be done can only be done in the name of the ruling house by a majority of its members. And the only way to determine a majority of its members is to take note of those members present at the family meeting called for the purpose of nominating candidate or candidates. This was what the Agaigi ruling house did non 25/2/81 and as it is not in dispute that only four candidates had majority support, only these four are the persons validly nominated by the Agaigi ruling house. The 1st Defendant did not have majority support, he was therefore, not duly nominated by the ruling house even though proposed. ......................................

 

In view of the conclusion I have just reached, it must necessarily follow that the kingmakers could not, in law, consider the 1st Defendant for appointment." (Italics mine)

 

The Court of Appeal considered further the provisions of section 11(1)(b) and (e) of the Chiefs Law, Cap. 19, Laws of Western Nigeria, 1959, (which is in pari materia with section 15(1)(b) and (e) of the Chiefs Law, Cap. 20, Laws of Ogun State, 1978) and came to the following conclusion -

 

As the kingmakers have no power to consider for appointment any person not nominated by the ruling house, it follows that the appointment of the 1st Defendant by them is null and void and of no effect.

 

It consequently, reversed the decision of the High Court by allowing the appeal before it and granting the declaration and order of injunction sought by the 1st to 4th Respondents. Upon this, the appellants appealed to this Court.

The 1st appellant is represented by Chief Williams, S.A.N., while the rest of the appellants 2nd to 13th are represented by Professor Kasunmu, S.A N. In effect there are two appeals, namely by the 1st appellant and the other appellants respectively. In his brief the 1st appellant formulated the following issues for determination

 

(i)     Whether the plaintiffs have locus standi to maintain this action.

 

(ii)    Whether the court below was correct in holding that on proper    interpretation of the provisions of the Chiefs Law, a Ruling House Family can only put forward a candidate by voting."

 

The 2nd to 13th appellants in turn formulated three issues for determination. These are

 

(a)    Whether the Court of Appeal was right in its interpretation of the provisions of  the Chiefs Law and the Declaration when it came to the decision that the 1st defendant was not a nominated candidate for appointment by the kingmakers as the Olofin of Ilisan.

 

(b)    Was the Court of Appeal right in validating the appointment of the 1st Defendant on the ground that the kingmakers consulted the Ifa Oracle and also because the decision to appoint the 1st Defendant was put to a vote by the kingmakers?

 

(c)     Have the plaintiffs the locus standi to prosecute this action?

 

It will be observed from the foregoing that issue no (i) formulated by the 1st appellant and issue (c) formulated by the other appellants are the same. I, therefore, propose to consider together those issues first. Arguing both in his brief and orally, Chief Williams submitted, relying on the decision in Oloriode V. Oyebi, [1984J I S.C.N.L.R. 390 at pp.401, 406 and 407, that although the point on locus standi was not raised in the courts below, it can be taken in this Court. He argued that a plaintiff suing on behalf of a ruling house has no locus standi to maintain an action instituted to challenge the validity of the appointment of a candidate to a chieftaincy title; and cited in support of the argument the case of Momoh V. Olotu (1970)1 All N.L.R. 117 at p.123, where Ademola, C.J.N., made the following observation -

 

Now, what is the averment in paragraph 1 (of the statement of claim)? The plaintiff says that he is a member of the Olukare family. The question may be asked, is it enough for the plaintiff to state that he is a member of the family? Surely, not every member of a chieftaincy family as such has interest in the chieftaincy title. We are of the view that it is not enough for the plaintiff to state that he is a member of the family; he has to state further that he has an interest in the chieftaincy title, and furthermore, state in his statement of claim how his interest in the chieftaincy title arose. It is difficult to say on the pleadings filed that the plaintiff has any locus in the matter. (Parenthesis and italics mine)

 

Chief Williams relied further on the decision in Thomas V. Olufosoye (1986) 1 N.W.L.R. (Pt. 18) 669 at p. 685para. F to p. 688 para. B per Obaseki,J.S.C. He stated that in the case on hand the plaintiffs (1st to 4th Respondents) sued on behalf of the Agaigi Ruling House and argued that only candidate nominated by the ruling house can sue since on the authority of Momoh's case (supra) the entire ruling house cannot sue.

 

Professor Kasunmu, adopted the argument advanced by Chief Williams on the issue of locus standi. Mrs. Y.A. Kuforiji, learned Senior State Counsel who appeared for the 5th and 6th Respondents did not advert to the point in either the Respondents' brief of argument or her oral argument since she merely adopted the 5th and 6th Respondents' brief.

 

In reply, Mr. Sofola, S.A.N.,for the 1st to 4th Respondents canvassed both orally and in the Respondents' brief of argument that the issue of locus standi does not arise in this case because the plaintiffs (1st to 4th Respondents) brought the action for themselves and on behalf of the Agaigi Ruling House. Therefore, unless it is argued that the whole of Agaigi Ruling House has no locus to bring the action the argument of the appellants cannot succeed. He argued that the relevant Rules of court make provision for one or more persons to sue on behalf of numerous persons who have the same interest in a cause or matter and that no leave of the trial court is necessary before an action in representative capacity can be brought. Learned Senior Advocate submitted that the case of Momoh V. Olotu (sup ra) was not a representative action and therefore the decision therein cannot apply to the present case which is a representative action. He argued in the alternative that even if the present action was not shown in the writ to have been brought in a representative capacity, the appellants cannot reply on that procedural defect since on the authority of the decision in Divisional Chief Gbolulu of Vakpo V. Head Chief of Anfoego Akukome 7 W.A. C.A. 165 the defect can be cured by this Court once it is clear, as indeed it is,on the evidence that the plaintiffs brought the action on behalf of themselves and other members of their family.

 

I am satisfied that the argument advanced by Mr. Sofola is well grounded and tenable. Order 8 rule 9 of the High Court (Civil Procedure) Rules Cap. 44, Laws of Ogun State, 1978 which is applicable here provides -

 

where there are numerous persons having the same interest in one cause or matter, one or more such persons may sue or be sued, or may be authorised by the Court or a Judge to defend in such cause or matter, on behalf or for the benefit of all persons so interested.

 

Now, it is clear that to bring a representative action under Order 8 rule 9, it is essential that the representative in the action must have the same interest as the persons that he claims to represent. If the interest as well as the grievance are common, a representative action would be in order, provided that the relief sought in the action is in its nature beneficial to those whom the plaintiff represents. The question therefore is: have the plaintiffs in this case common interest with the members of the Agaigi Ruling House which they represent? In my opinion the answer will be found in paragraphs 1, 6, 7, 8, 9, 12 and 20 of the Amended Statement of Claim filed by the plaintiffs. The said paragraphs read -

 

1.     The plaintiffs are accredited representatives and members of Agaigi Ruling House of Ilisan-Remo and they all reside at Ilisan-Remo.

 

6.      Following the demise of Oba Onasoga, the late Olofin of IlisanRemo, the Secretary of  Ijebu Remo Local Government sent Notice to Agaigi Ruling House to nominate candidate or candidates to fill the vacant stool.

 

7.      Consequent upon the receipt of the said Notice Agaigi Family held a meeting on the 25th day of February, 1981, at which the Secretary of Ijebu Remo Local Government and his staff were present.

 

8.      At that meeting the names of the following members of Agaigi Ruling House - Rabiu Fujamade, Abel Olufemi Osude, Kola Ileke and Lamina Ogunkoya were recommended to  be forwarded to the kingmakers of Ilisan-Remo after each of them had been validly selected, nominated and approved by overwhelming majority of the members of the family present at the meeting.

 

9.      The plaintiffs aver that the names of the 1st Defendant and another person were later mentioned after the family had taken a firm decision on the nomination of candidates but  both the 1st Defendant and the other person were overwhelmingly rejected by the        members of the family there present.

 

12.   The plaintiffs further aver that notwithstanding the rejection of the nomination of the 1st Defendant by the family; the kingmakers who are hundred percent illiterates were manipulated to approve the nomination of 1st Defendant even before the Secretary Ijebu Remo Local Government had met with them to consider the Agaigi Family nomination."

 

20    The plaintiffs aver that Timothy Adeilo Adefulu is not a member of the Agaigi Ruling House and therefore is not entitled to be made an Oba from Agaigi Ruling House and that the family did not select him for consideration of the kingmakers."

 

From the foregoing it will be seen that the members of the Agaigi Ruling House selected four candidates for appointment as Olofin of Ilisan-Remo. The kingmakers of Ilisan-Remo considered other candidates not nominated by the Agaigi Ruling House and not only that, they (the kingmakers) went further to select one of the non-nominated candidates to be appointed, and was appointed, as the Olofin. Surely, the common interest of the members of the Agaigi Ruling House is to see that one of the candidates nominated by the Ruling House becomes the Olofin. All the plaintiffs and other members of the Ruling House that approved the nomination of the four candidates have common interest in that respect. They all share a common grievance in that their accredited nominees were rejected by the kingmakers for a candidate that was never nominated by the majority of the members of the Agaigi Ruling House. The remedy sought by the plaintiffs is a declaration that the appointment of the non-nominated candidate be declared null and void and of no effect and for an order of injunction to restrain the non-nominated candidate from parading himself as the Olofin of Ilisan-Remo. If the remedy is granted it would certainly be of benefit to the majority of the members of Agaigi Ruling House, that the plaintiffs represent. In my opinion, therefore, the plaintiffs have satisfied the provisions of Order 8 rule 9 of the Ogun State High Court (Civil Procedure) Rules, Cap. 44.

 

The next question is whether the present case is on all fours with Momoh's case (supra) and Thomas v. Olufosoye (supra). I think there is a marked distinction between the facts of the present case and those of the former cases. This will be seen vividly from examination of the averments in the statement of claim in each case. In Momoh's case, paragraphs (1) to (8) of the plaintiff's statement of claim read -

 

(1)    The plaintiff is a member of Owalukare ruling house of Okela Quarters, Ikare.

 

(2)    The plaintiff brings this action on behalf of members of Owalukare ruling house.

 

(3)    The first Defendant was in 1955 and 1956 the Chairman of the Ikare District Council.

 

(4)    The first Defendant is the present Olukare of Ikare and claims to be the direct son of previous Olukare.

 

(6)    Sometimes in 1956, a declaration was made and signed by the first Defendant as Chairman of the Ikare District Council stating that the correct custom for the succession to the Olukare Chietaincy is that the 'eldest son (of a reigning Olukare) succeeds to the title.

 

(7)      The said declaration was accepted by the Ministry of Chieftaincy Affairs as the correct  native law and custom regulating the succession to the Olukare Chieftaincy.

 

(8)      The plaintiff avers that the said declaration is not in accordance with the native law and custom of the Ikare people and has not been published in any gazette and is of no effect or validity.

 

It can be seen from the averments that neither the plaintiff nor the people he represented took any part in drafting or making the declaration and the plaintiff, apart from alleging that he was a member of Olukare family, did not state his interest in the Chieftaincy nor state how his interest in the Chieftaincy title arose.

 

In the case of Thomas V. Olufosoye the plaintiff's claim was -

 

1.      A declaration that the appointment of Adetiloye as the new Bishop of Lagos is irregular, unconstitutional and therefore null and void;

 

2.      A declaration that the Synod of Lagos be convened immediately to elect a new advisory committee to advice the Defendant on the new Bishop of Lagos.

 

3.      An injunction restraining the Defendant, the Bishop under him, his agents, servants or privies or otherwise however from enthroning, installing or translating the said Adetiloye to the See of Lagos."

 

The following averments were made by the plaintiffs in their statement of claim in support of the claim -

 

1.     The plaintiffs are all communicants of the Anglican Communion within the Diocese of  Lagos. They sue by themselves and as representatives of the Laity of the Anglican  Communion within the Diocese of Lagos.

 

2.      The Defendant is the Archbishop of the Church of the province of Nigeria, Primate of Nigeria and Metropolitan of the Anglican Communion in Nigeria. The Bishops Court is at Arigidi Street, Bodija Ibadan, Oyo State of Nigeria.

 

3.      On 29.6.85 the Newspapers and the Electronic media carried the news of the   Appointment  of Very Reverend Joseph Abiodun Adetiloye (hereinafter  referred to as Adetiloye) as the new Bishop of Lagos.

 

4.      This was confirmed on 30.6.85 when a notice of election under the hand of the Defendant was pasted on the door of the Cathedral Church of Christ, Lagos.

 

5.      On 22nd August, 1985 and in their issue of that date, the Daily Sketch Newspaper again carried the news that the enthronement and or translation of the said Adetiloye to the See of Lagos will take place on the 31st day of August, 1985.

 

6.      The appointment of Adetiloye was made contrary to the provisions of Article IV Church of Nigeria (Anglican Communion) Constitution of 1979 (hereinafter referred to as the Constitution). The said Article IV reads as follows:

 

There shall be in each Diocese of the Province an advisory committee to be appointed by the synod of the Diocese to advise the Archbishop on the appointment of a Diocesan Bishop when a vacancy occurs in the Diocesan Bishopric.

 

The Committee shall consist of four clerical and five lay members of the Synod of the Diocese. The lay members shall include at least one woman and also the Chancellor of the Diocese who shall be the Chairman of the Committee. It shall be the duty of the Bishop of each Diocese after every Synod to inform the Archbishop of the name and address of the Chairman of the Advisory Committee of his Synod.

 

7.     In breach of this clear provision of the Constitution, the Synod for 1984 did not meet. No advisory Committee of the Synod have therefore been appointed. With the exception of the Chancellor, all the other members of the so-called advisory committee who advised the Defendant were hand-picked by the former Bishop of Lagos, Reverend F. 0. Segun.

 

8.      On 30.5.85 a letter under the hand of the Chancellor of the diocese was dispatched to the Defendant, enclosing as it were, the committee's views on the vacant post of a Bishop in the Lagos Diocese.

 

9.      Under Canon IV Chapter IV of the Constitution the committee are supposed to submit  'a list of not more than three persons who, in their opinion, possess those qualifications for the consideration of the House of Bishops.'

 

10.    In clear breach of the provisions of this cannon, the views submitted to the Defendant by the advisory committee did not contain a list of not more than 3 persons who are qualified to be Bishop.

 

11.     In the notice of election referred to in paragraph 4 herein, the Defendant wrote thus:

 

if anyone can show any cause or just impediment why the said Right Reverend Joseph Abiodun Adetiloye should not be translated to that See or can offer any canonical objection to the election or form therefore let him signify the same to me in writing delivered by hand or registered post within fourteen days from this date.

 

12.    In compliance with the wish of the Defendant objections were raised against the appointment but all of them were summarily dismissed as anonymous and those he considered threatening the Defendant claimed to have referred to the police and the NSO, whatever that means.

 

13.     At the trial of this suit, the plaintiffs will contend "that they are not interested in any particular candidate rather that in the appointment of a new Bishop for Lagos," the procedure laid down by the constitution must be followed to the letter.

 

14.     The plaintiffs will further contend that the Defendant had no opportunity to have considered the many petitions against the appointment of Adetiloye in that shortly after issuing the notice of election he left the country on religious preferment and did not arrive in the country until 14 days after.

 

15.    The plaintiffs will further contend that the views of the so-called advisory committee circulated to the House of Bishops have no legal backing in that the signatories to the views with the exception of the Chancellor of the Diocese, are not elected by the Synod as provided for in the Constitution.

 

16.     The plaintiffs, at the trial of this suit, will found on the following documents namely:

 

i.      The Church of Nigeria (Anglican Communion) Constitution of 1979;

 

ii.      Letter dated 29th June, 1985 titled "notice of election" and signed by the Defendant;

 

iii.     Letter dated 30th May, 1985 addressed to the Defendant and signed by the Chancellor of the Diocese and enclosing the view of the advisory committee;

 

iv.    Letter dated 2nd July, 1985 addressed to the Defendant and signed by eleven  representatives of the Concerned Anglican Communion Christians. The letter was neither acknowledged nor the members invited for an interview even though they gave a forwarding address.

 

v.      Letter dated 6th July, 1985 addressed to the Defendant by one Francis Adekoya Arewa objecting to the appointment on canonical ground.

 

vi.     Letter dated 20th July, 1985 under the hand of the Defendant confirming the election of the new Bishop of Lagos, the said Adetiloye."

 

Here again it is clear that the plaintiffs were simply communicants and had no role nor did they play any role in the appointment of the bishop. They were not members of the Committee which was to advise the Archbishop nor were they members of the Synod of the Diocese. They were mere busy bodies with no common interest with the laity they claimed to represent.

 

This, therefore, distinguishes the present case from the cases of Momoh and Thomas V. Olufosoye in both of which it was held that the respective plaintiffs had no locus standi. It was held by the Federal Supreme Court in Otuguor Ogamioba & Ors V. Chief Oghene & Ors. (1961) All N.L.R. 59 that the representative in a representative suit was to be in order; and the relief sought must in nature be beneficial to all those whom the representative claims to bring the action on their behalf. If there is no common interest the representative cannot therefore bring the action on behalf of those he claims to represent-see Oragbaide V. Onitiju (1962) W.N.L.R. 21.

 

From all the aforesaid I hold that the plaintiffs are not busy bodies and that in the case on hand they had locus to institute the action.

 

Issue for determination no (ii) in the brief argument of the 1st appellant is similar to issue (a) in the brief argument of the 2nd to 13th Respondents. However, it seems that the letter goes further than the former since it does not only refer to the Chiefs Law but also makes mention of the Chieftaincy Declaration (exhibit P).

 

In arguing issue no (ii) Chief Williams referred to the provisions of section 14(1) of the Chiefs Law, Cap. 20, Laws of Ogun State, 1978 and submitted that the interpretation given to the section by the learned trial Judge will ensure its smooth working and avoid all difficulties and possible absurdities. He referred to the word ''nominate" as contained in section 314(1) of the Chiefs Law, Cap. 20 and gave it the meaning ascribed to it by the 2nd Edition of Oxford English Dictionary, which is -

 

to propose or formally enter (one) as a proper person or candidate for election.

 

and submitted that although the declaration of customary law (exhibit '~P") provides that the nomination of a candidate is to be made by the ruling house it is to be noted that section 14(1)(a) of the Chiefs Law, Cap. 20 requires that a qualified person must be - "proposed by the ruling house ... according to the customary law as a candidate." He submitted further that the finding of the Court of Appeal that the proposal of the 1st appellant was not in accordance with the provisions of section 52 of the Interpretation Law, Cap. 51, Laws of Western Nigeria, 1959 was irrelevant since the power of the ruling house to nominate derives from customary law and not from any statute. He canvassed that it follows that the provisions of the Interpretation Law, Cap. 51 do not apply to the manner or procedure in which a ruling house is expected to perform its function according to customary law. In his oral argument Chief Williams submitted that in the absence of a unanimous candidate, any member of the ruling house proposed by more than one person, as opposed to proposal by the majority of the members of the ruling house, is a qualified candidate for appointment as Olofin of Ilisan-Remo. He concluded his argument by stating that the 1st appellant was validly nominated and properly appointed by the kingmakers.

 

In his argument, Professor Kasunmu said that the Court of Appeal in invalidating the appointment of the 1st appellant was not nominated by the Agaigi Ruling House since the issue of nomination by the ruling House had to be determined by voting by the members of the Ruling House, having regard to the provisions of section 52 of the Interpretation Law, Cap. 51 of the Laws of Western Nigeria, 1959. He said that the Court of Appeal justified its decision on the need of voting by referring to a provision in the Declaration of Customary law (exhibit P) which made reference to the candidate so nominated to be one having popular support within the ruling family. Learned Senior Advocate referred to the provisions of section 11 of the Chiefs Law, Cap. 19 and the provisions of paragraphs III, IV of the Chieftaincy Declaration (Exhibit "P"). He canvassed that by virtue of the provisions of section 11 of the Chiefs Law, Cap. 19 the right to put forward to the kingmakers a candidate or candidates for appointment is vested in the members of the ruling house as an identifiable group and not the ruling house. He submitted that exhibit ''P" is a subsidiary legislation made pursuant to section 4 of the Chiefs Law, Cap. 19 and as such it cannot derogate from or take away a right given to a person under the Chiefs Law Cap. 19. He contended that if the provisions of exhibit "P" are inconsistent with those of the Chiefs law they will be void to the extent of the inconsistency. Therefore, if the decision of the Court of Appeal were to be correct, it would have the effect of divesting the members of the ruling house the right vested in them by the Chiefs Law Cap. 19 and giving the right to the ruling house. The reference by the Court of Appeal to the provisions of section 52 of the Interpretation Law, can only be justified if the Court of Appeal was right in its view that the right to nominate candidate or candidates is vested in the ruling house and not members of the ruling house. Learned Senior Advocate then submitted that paragraph V of exhibit P is void to the extent that it states that it is the ruling house not the members of the ruling house that could nominate.

 

Arguing in the alternative, Professor Kasunmu referred to provisions of section 10 of the Chiefs Law Cap. 19 and said that where more than one candidate is proposed, there would obviously be more than one nomination. To insist or demand voting on the nominations would not make sense for regardless of the votes scored the two or more nominations must be forwarded to the kingmakers as candidates for consideration. In other words all proposals for nomination made by members at the meeting of the ruling house must be sent to the kingmakers who would use the popularity of the candidates in the community as a yardstick for their approval.

 

Learned Senior State Counsel, Mrs. Kuforiji supported the argument that any candidate proposed by a member of the ruling house and the proposal having been seconded by another member of the ruling house is deemed to have been nominated in accordance with the Chiefs Law. Therefore, the learned Justices of the Court of Appeal were wrong in holding that it was only by voting that a member can rightly be nominated. She argued that the kingmakers have validly appointed the 1st appellant and submitted that the Government of Ogun State acted rightly in approving the said appointment.

 

Mr. Sofola, S.A.N., began his reply by conceding that the right to submit the name of a candidate or names of candidates to the kingmakers is vested in the members of the ruling house; but argued that it is difficult to appreciate the distinction being made by Professor Kasunmu between the members of the ruling house and the ruling house itself. He submitted that the views of the majority of the members of the ruling house must be held to be the views of the ruling house; and that the easiest way to arrive at the view of the majority is either by acclamation or voting conducted in a fair manner.

 

Learned Senior Advocate also conceded that the chieftaincy Declaration (exhibit ''P") is a subsidiary legislation made pursuant to the provisions of the Chiefs Law and therefore, he said it cannot derogate from the rights given by the enabling statute. However, he submitted that it is the Chiefs Law in section 11 thereof that provides that the members of the ruling house acting in accordance with exhibit P that shall submit name or names of a candidate or candidates to the kingmakers. Consequently, the members of the ruling house must act in accordance with exhibit P and not contrary to it. He submitted that the ruling house is not a human being and therefore it cannot by itself nominate candidates. It is the members of the ruling house who constitute the ruling house that are legally in a position to make nomination. Learned Senior Advocate submitted that the Court of Appeal was right in applying the provisions of sections 52 of the Interpretation Law.

 

It seems to me that the crux of the contention here is the interpretation of specific provisions of the Chiefs Laws vis-a-vis the provisions of the Chieftaincy Declaration (Exhibit ''P"). Before examining these provisions I think it is apposite to state that in general the procedure for the appointment of a chief is governed by customary usage or customary law. However, the appropriate Chiefs Law normally provides for the codification of such customary law. Once the codification is made it becomes the recognised or prescribed procedure or customary law for making the appointment.

 

In the present case section 4(1) of the Chiefs Law, Cap. 19 provides -

 

4(1)      subject to the provisions of this Law, a committee of a competent council -

 

(a)     may; and

 

(b)    shall, if required by the Commissioner, make a declaration in writing stating the customary law which regulates the selection of a person to be a holder of a recognised chieftaincy."

 

And section 9 of the Chiefs Law Cap. 19 states -

 

9.      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 sub-section (2) of section 4) shall 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."

 

In effect the Chiefs Law is the enabling statute by virtue of which the Chieftaincy Declaration (exhibit "P"), which falls for interpretation in the present case, was made. Consequently, exhibit "P" is a subsidiary legislation and is by virtue of section 9 the only valid customary law pertaining to the Chieftaincy by Ilisan-Remo.

 

Now by section 10 subsection (1) of the Chiefs Law, Cap. 19 (which is the same as section 14(1) of the Chiefs Law Cap. 20 Laws of Ogun State 1978) -

 

"10. (1)     A person shall, unless he is disqualified, be qualified to be a candidate to fill a vacancy in a recognised chieftaincy if -

 

(a)     he is proposed by the ruling house or the persons having the right to nominate the candidate according to customary law; and

 

(b)

(i)     he is a person which the ruling house or the persons having the right to nominate candidates are entitled to propose, according to customary law, as a candidate, or

 

(ii)    he is unanimously proposed as a candidate by the members of the ruling house or the persons entitled to nominate candidates."

 

The word "propose" as used in this section is defined in Websters New Twentieth Century Dictionary - 2nd Edition to mean - "to put forth for consideration or acceptance; to nominate (someone) for membership, office etc." and by the shorter Oxford English Dictionary to mean - "to put forward for consideration, discussion, solution etc." The proposal is to be made either by the "ruling house or persons having the right to nominate candidates." It appears to me that the words, "ruling house" could mean all the members of the family that constitute the ruling house, all its members, without exception, should participate in the decision, but in the circumstances of life and the scheme of things this is not always possible. There may be instances of illness, traveling, emergency and so on. In order, therefore, not to stultify the taking of a decision by the ruling house the expression or persons having the right to nominate candidates" were, in my opinion, added after the words "ruling house" in section 2 of the Chiefs Law, which reads -

 

ruling house in relation to a chieftaincy means the descendants of a lineal ancestor entitled in accordance with customary law to provide from amongst their own number a candidate or candidates for appointment by the kingmakers as holder of that chieftaincy.

 

Now, in the case in hand, the persons who may be proposed as candidates are as spelt out in paragraph (III) of the Chieftaincy Declaration (exhibit "P") which provides -

 

(ii)     The persons who may be proposed as candidates by a ruling house entitled to fill a vacancy in the chieftaincy shall be:

 

(a)      members of the ruling house

 

(b)     of male or female line at will with a popular support."

 

and paragraph V of exhibit "P" provides -

 

(V)     The method of nomination by each ruling house is as follows:

 

         The ruling house whose turn it is to provide a candidate shall nominate at a family meeting to be summoned by the family head, a candidate for the chieftaincy to be presented by the family head to the kingmakers.

 

It is to be observed that while section 10(1) of the Chiefs Law employs the word "propose" paragraph (V) of exhibit "P" uses the word "nominate." Is there any difference in meaning between these two words in the context in which they have been expressed? From the dictionary definition given above to the word "propose", I think both words have the same meaning and are interchangeable. The next question is: how can a candidate be proposed or be nominated by a ruling house? The appellants say that mere mentioning of a name by a member of the ruling house if seconded by another member is sufficient. But 1st to 4th Respondents supported the decision of the Court of Appeal that after the name has been mentioned by a member of the ruling house and seconded by another member of the ruling house, then a vote must be taken in order to ascertain the popularity of the candidature, amongst the members of the ruling house, of the person named.

 

I prefer the submission made by the 1st to 4th Respondents and I think the Court of Appeal was right when it adverted to the provisions of section 52 of the Interpretation Law Cap. 51 to determine whether or not there should be voting at the meeting of the Agaigi Ruling House. It is to be noted that Agaigi Ruling House is a body of persons defined by section 2 of the Chiefs Law, Cap.19. By section 52(a) of the Interpretation Law, Cap.51 -

 

Save as may be otherwise expressly provided by any written law -

 

(a)     whenever any actor thing is by any written law required to be done, or any decision taken, by a body of persons consisting of not less than three such act or thing may be done, or such decision taken, in the name of that body by a majority of those persons.

 

There is evidence that the membership of the Agaigi Ruling House is made up of at least 97 persons. Exhibit ''P" is, by virtue of the provisions of section 4(1) of the Chiefs Law and the definition in section 2 of the Interpretation Law, Cap. 51, a subsidiary legislation and therefore a written law. Both the Chiefs Law (in sections 10(1) and 11(1)(b) thereof) and the Chieftaincy Declaration (exhibit "P") (in paragraph V thereof) provide the procedure by which the Agaigi Ruling House is to select a candidate or candidates for appointment as Olofin of Ilisan-Remo. I, therefore, agree with the Court of Appeal that in view of the provisions of section 52(a) of the Interpretation Law, which is applicable to this case, the Agaigi Ruling House acted rightly in accepting the majority vote at its meeting to decide on the nomination of the candidates to be forwarded to the kingmakers. In the result, I hold that the nomination of the 1st appellant, which was challenged by the 1st to 4th Respondents, was invalid since it was not supported by the majority of the 97 members of the Agaigi Ruling House who were present and voted at the meeting held.

 

With regard to issue (b) in the brief of the 2nd to 13th appellants, the appellants contest that the Court of Appeal was wrong in invalidating the appointment of the 1st appellant on the ground that the kingmakers consulted Ifa Oracle and that their decision to appoint the 1st appellant was not put to a vote. In view of the decision which I have just reached in the preceding paragraph it is not necessary to consider the issue raised here. For if the 1st appellant was not nominated by the Agaigi Ruling House, as I hold, then the kingmakers could not have even validly considered his candidature amongst the four candidates proposed by the Agaigi Ruling House and still less to appoint the 1st appellant as the Olofin of Ilisan-Remo. Suffice, it to stress that neither the declared customary law (exhibit "P") for the appointment of the Olofin, nor the provisions of the Chiefs Law leave any rooln whatsoever for the kingmakers to consult Ifa Oracle in deciding which candidate they were to appoint - See Oredoyin V. Arowolo (1989) 4 N.W.L.R. (Pt.114) 172; (1989) 7 S.C.N.J. 60. Where a valid nomination or nominations have been made to the kingmakers they are expressly enjoined to take decision on the nomination by vote. Section 11 sub-section (1)(e) provide as follows -

 

11.      (1)     Where a vacancy occurs in a ruling house chieftaincy and a declaration has effect with respect to that chieftaincy -

 

(e)

(i)    if the name of only one candidate is submitted who appears to the kingmakers to be qualified and not disqualified in accordance with section 10, they shall declare him to be appointed;

 

(ii)    if the names of more than one candidate are submitted who appears to the kingmakers to be qualified and not disqualified in accordance with section 10, the names of those candidates shall be submitted to the vote of the kingmakers and the candidate who obtains the majority of the votes of the kingmakers present and voting shall be declared appointed.

 

On the whole, therefore, the appeals by all the appellants have failed.

 

This however is not the end of this case for there is another appeal by the 1st to 4th Respondents in which all the appellants herein and the 5th and 6th Respondents are joined as Respondents. The appeal arose from an application made to the Court of Appeal by the 1st appellant after that Court gave its judgment in favour of the 1st to 4th Respondents. One of the prayers in the application was for -

 

 Stay of injunction granted in the judgment of this Honourable Court given on Thursday the 25th of June, 1987 pending the determination of the appeal in the same to the Supreme Court of Nigeria.

 

The panel of the Court of Appeal that heard the appeal and allowed it was constituted by Uche Omo, Ogundare and Onu, JJ.C.A. But the panel which heard the subsequent application for stay was made up of Kutigi, Omololu-Thomas and Sulu-Gambari, JJ.C.A. The Court of Appeal (Omololu- Thomas and Sulu-Gambari, JJ.C.A. and with Kutigi, J.C.A. dissenting) granted the application on the ground (per Sulu-Gambari, J.C.A.) that the judgment of the Supreme Court in the case of Adeyeye & Anor. V. Ajiboye & Ors., (1987) 3 N.W.L.R. (Pt.61) 432 

 

..... seems to be on all fours with the case under review and since the applicant had been performing six years before the decision of this court, the slightest likelihood of a new appointment being made, mid-stream, will have the slightest rendering (sic the ending appeal nugatory. I do therefore come to the conclusion that such special circumstances had been evinced so as to justify, in the interest of justice, that the application be granted. The stay for order of injunction ought therefore to be and is hereby made pending the determination of the appeal to the Supreme Court.

 

In his brief of argument, Mr. Sofola, S.A.N., stated that the only issue f6r determination is -

 

Whether the majority of the Court of Appeal were right to have made an order of stay of the order of injunction previously granted by the Court of Appeal differently constituted.

 

Learned Senior Advocate then listed five grounds on which the 1st to 4th Respondents herein challenged the ruling of the majority, to wit -

 

(a)      First, with all due respect of SuIu-Gambari, J.C.A. it is a total misconception for the learned Justice to hold that it was agreed that if another candidate was installed as the Olofin, that course may lead to the multiplication of action to get any candidate so installed removed from the office and may undoubtedly render the appeal nugatory if the appeal of the applicant succeeded.

 

(b)     Secondly, it is also, with all due respect erroneous for the majority of the Justices of the Court of Appeal to have based their decision on the fact that the 1st Defendant had been on the throne since April, 20, 1981, and in effect that it would be inequitable to dethrone him, and that in any event there was no breakdown of law and order during that period.

 

 

(c)    Thirdly, it was, with respect, a total misconception on behalf of the learned Justices not to have appreciated the distinction between the case of Adeyeye & Anor. V. Ajiboye & Ors. (1987) 3 N.W.L.R. (Pt.61) 432 and the present case.

 

 

(d)     Fourthly, with the greatest respect to the majority of the Court of Appeal, they wrongly applied the principles for the granting of an order of stay of injunction.

 

 

(e)     Fifthly, the learned Justices of the Court of Appeal in the majority, with all due respect, failed to appreciate that the stay they were granting was in effect a review of the judgment of the same court, although differently constituted.

 

As it can be seen the interlocutory appeal by the 1st to 4th Respondents herein raises very interesting points but, alas, it was to be appreciated that the order granted by the Court of Appeal was made pending the determination of the substantive appeal. The substantive appeal has now been determined. In effect the interlocutory order now has automatically become discharged. If the interlocutory appeal had come before us in advance of the substantive appeal it would have been appropriate for us to consider and make a decision u p on it. But as the position stands now the interlocutory appeal has been overtaken by the substantive appeal and the order of stay granted is discharged. It will, therefore, be a futile and an academic exercise to deal with the interlocutory appeal since the interlocutory order has, so to say, been executed and the lis in the interlocutory appeal ceases to exist. Consequently, the appeal by the 1st to 4th Respondents herein against the interlocutory order abates.

 

In conclusion, the appeals by the 1st to 13th appellants are hereby dismissed. The decision of the Court of Appeal is confirmed.

 

Accordingly, it is hereby -

 

1.      Declared that the appointment and purported approval and installation of the 1st appellant as the Olofin of Ilisan-Remo are irregular, unlawful and therefore null and void and of no effect as same were not done in accordance with the provisions of the Western Region (Ogun State) of Nigeria Chiefs Law and the relevant Chieftaincy Declaration in respect of the succession to the stool of Olofin of Ilisan-Remo; and

 

2.      Ordered that the 1st appellant is restrained from parading himself as the Olofin of Ilisan-Remo and that the 2nd to 13th appellants as well as the 5th and 6th Respondents are restrained from recognising the 1st appellant as the Olofin of Ilisan-Remo.

 

The 1st to 4th Respondents are hereby awarded costs assessed at N500.00 against the 1st appellant and another N500.00 against the 2nd to 13th appellants.

 

 

Judgement delivered by

Obaseki. J.S.C.

 

 

I have had the advantage of a preview of the judgment just delivered by my learned brother, Uwais, J.S.C., and I am of the same opinion as he on all the issues for determination raised in this appeal and I hereby agree with him that the appeal fails and should be dismissed.

 

This appeal deals with a chieftaincy matter as is disclosed from the endorsement on the writ of summons filed in the High Court wherein the 1st to 4th plaintiffs/Respondents claimed against all the appellants and 5th and 6th Respondents -

 

1.      A declaration that the appointment, the purported approval and the installation of the first Defendant (herein 1st appellant) as the new Olofin of Ilisan-Remo are irregular, unlawful and therefore null and void as same were not done in accordance with the provisions of the Western Region (Ogun State) of Nigeria Chiefs Law and the relevant Chieftaincy Declaration in respect of succession to the stool of Ilishan-Remo;

 

2.      Injunction restraining the 1st Defendant from parading himself as the Olofin of Ilishan-Remo and the other Defendants from recognising the said first Defendant as the Olofin of Ilisan-Remo.

 

Pleadings were filed and served and the issues for trial were heard and determined by the learned trial Judge Sofolahan, J. who in his judgment dismissed the plaintiffs' claims in toto. The plaintiffs were dissatisfied and appealed to the Court of Appeal. The Court of Appeal, after considering the submissions of counsel, made orally and in writing in their briefs, gave a considered judgment allowing the appeal and reversing the decision of the High Court.

 

The Defendants were dissatisfied with the decision and have brought this appeal against that decision of the Court of Appeal. The facts of the case and the highlights of the judgments of the High Court and the Court of Appeal have been set out in the lead judgment of my learned brother, Uwais, J.S.C., and I shall not repeat them here.

 

The issues raised in the appeal before us here in the Supreme Court are:

 

(1)      Whether the plaintiffs have locus standi to maintain this action;

 

(ii)    Whether the court below was correct in holding that on a proper interpretation of the provisions of the Chiefs Law a Ruling Housing Family can only put forward a candidate by voting;

 

These two issues were raised in the brief of the 1st appellant. The 2nd to the 13th appellants in addition raised the issues -

 

(a)    whether the Court of Appeal was right in its interpretation of the provisions of the Chiefs Law and the Declaration when it came to the decision that the 1st Defendant was not a nominated candidate for appointment by the kingmakers as the Olofin of Ilisan;

 

(b)   was the Court of Appeal right in invalidating the appointment of the 1st appellant on the ground that the kingmakers consulted the Ifa oracle and also because the decision to appoint the 1st Defendant was put to a vote by the kingmakers?

 

I shall deal with the issue of locus standi by way of emphasis on the opinions expressed by my learned brother, Uwais, J.S.C., which I have already adopted.

 

The issue of Locus Standi

The importance of this issue in our jurisprudence cannot be underrated and is traceable to the fact that the origin of the requirement in any judicial process is section 6(6)(b) of the Constitution of the Federal Republic of Nigeria 1979. To remind ourselves of the exact text of the sub-section in this judgment, I will set it out in full immediately below. It reads:

 

(6)      The judicial powers vested in accordance with the foregoing provisions of this section

 

(b)     shall extend to all matters between government or authority and any person in     Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person.

 

What are the civil rights and obligations of the Respondents that have been allegedly violated by the appellants? and have to be determined? If there are, the Respondents have locus standi. If there is none, they have no locus standi.

 

The submission of Chief F. R. A. Williams, S.A.N., learned counsel for the 1st appellant and Professor A. B. Kasunmu, S.A.N., learned counsel for the 2nd to the 13th appellants that the Respondents have no locus standi to institute the action and initiate the proceedings in the High Court which led to the appeal to the Court of Appeal and thence to this Court is a denial of the existence of the rights and obligations of the Respondents which have been violated by them.

 

That, therefore, leads me to a closer examination of the pleadings, evidence and the judgment of the Court of Appeal and the findings of fact by the High Court and the Court of Appeal. I observe that the issue of locus standi was not raised before the High Court or before the Court of Appeal. In view of the fact that it is an indirect questioning of court's jurisdiction to adjudicate on the matters, it can be raised at any time in the course of trial or on appeal; (see Oloriode V. Oyebi [1984] 1 S.C.N.L.R. 390) and examined by the court. The conclusion of the judgment of the Court of Appeal per Ogundere, J.C.A., which reads:-

 

As the kingmakers have no power to consider for appointment any person not nominated by the ruling house, it follows that the appointment of the 1st Defendant by them is null and void.

 

makes a good starting point. From this finding, it is clear that there is a right to nominate a candidate for appointment vested in the Agaigi Ruling House and recognised by law and the government. Pursuant to the recognition of this right, Exhibit "A" a notice was sent to Agaigi Ruling House calling on the Ruling House for nomination of a candidate or candidates for the consideration of the kingmakers for appointment of a new Olofin of Ilisan-Remo. Paragraphs 1, 2 and 3 of the Notice are relevant and important for the resolution of the point at issue. These three paragraphs of the notice read:

 

 

IJEBU REMO LOCAL GOVERNMENT

NOTICE FILLING OF VACANCY

OF OLOFIN OF ILISAN

 

Pursuant to section 11(1) of the Chiefs Law Cap. 19 Notice is hereby given to AGAIGI RULING HOUSE, whose turn it is to provide a candidate for the vacant stool of Olofin of Ilisan to nominate within 14 (fourteen) days of the date of this Notice candidate or candidates for the consideration and selection by the kingmakers.

 

2.     Persons who may be proposed as candidates to fill the vacancy must be

 

(a)    members of the Agaigi Ruling House

 

(b)    of the male or female line at will with a popular support

 

3.      The AGAIGI Ruling House shall nominate at a family meeting to be summoned by the Head of the Family candidate/candidates for the Chieftaincy to be presented by the family head to the kingmakers."

 

Having been called upon to exercise their right, the Agaigi Ruling Rouse at a meeting of its members by vote of 82 to 15 nominated

 

 

1. 

Rabiu Fujamade

Male Line

2. 

Abel Olufemi Osude

Male Line

3.

Kola Ileke

Female Line

4. 

Lamina Ogun Fakoya

Female Line

 

and a certificate Exhibit "C" issued to that effect. The certificate was signed by the Read of the Family, Chief Bello Oyesile by affixing his right thumb impression, the Secretary, Mr. V.0. Okulaja; Alhaji B. S. Ladegbuwa; Mr. 0. P. Sofola; Mr. Balogun (by appending their signatures) and Alhaji Tijani Adebayo by appending his right thumb impression.

 

The 1st appellant was not one of the 4 candidates nominated by the ruling house.

 

In ascertaining whether the plaintiffs in an action have locus standi, the pleadings, i.e. the statement of claim must disclose a cause of action vested in the plaintiffs. Thomas V. Olufosoye (1986)1 N.W.L.R. (Pt. 18) 669 at 685 to 688 para. B. The averment in the pleadings will disclose the rights and obligations or interests of the plaintiffs which have been violated. Momoh V. Olotu (1970)1 All N.L.R. 117; Oloriode V. Oyebi [198411 S.C.N.L.R. 390 at 401, 406 and 407.

 

This action was filed in the High Court by the 1st, 2nd, 3rd and 4th Respondents in a representative capacity for themselves and the Agaigi Ruling Rouse of Ilisan-Remo.

 

The above facts were pleaded in paragraphs 1, 6, 7, 8, 9 and 12 of the statement of claim. In paragraph 20 it was further pleaded that the 1st appellant was not a member of the Agaigi Ruling Rouse. If, as happened, a candidate not nominated by the Agaigi Ruling Rouse was appointed by the kingmakers and approved by the government, the rights of the Agaigi Ruling Rouse to have its nominee considered and appointed to the throne of Olofin of Ilisan-Remo has been violated and the Agaigi Ruling Rouse has the right and duty to take legal action to protect that right from being violated and trampled upon by the appellants and 5th and 6th Respondents. To this end Agaigi Ruling Rouse has the right and duty to invoke the judicial powers of' the High Court for the determination of its civil rights and obligations and therefore has locus standi in these proceedings. See Senator Adesanya V. The President and Anor. (1981) 2 N.C.L.R. 358; (1981) N.S.C.C. 146; (1981) 5 S.C. 112.

 

It is this right and duty to invoke the judicial powers of the court to determine their civil right and obligations that give the 1st, 2nd, 3rd and 4th plaintiffs/Respondents locus standi. This right to be given a fair hearing by a court or other tribunal established by law is recognised and guaranteed by section 33(1) of the Constitution of the Federal Republic of Nigeria 1979.

 

The issue of the words "shall be entitled to a fair hearing" is very important and I far reaching especially when it is for the "determination of civil rights and obligations" by a court.

The issue of locus standi raised by the appellants is therefore not well founded. I agree with the submission of learned counsel for the plaintiffs/ Respondents, Mr. Kehinde Sofola S.A.N., that it lacks merit.

 

I hold that the plaintiffs/Respondents have locus standi to institute the action and bring the claim for the reliefs sought. The Court of Appeal therefore has jurisdiction to grant the reliefs.

 

On the issue of the procedure for nomination, I agree with my learned brother, Uwais, J.S.C., that the Court of Appeal was right in its interpretation of the relevant provisions of the Chiefs Law and the Declaration of Customary Law relating to the nomination and appointment of the Olofin of Ilisan-Remo. The Agaigi Ruling House as a body entitled to nominate candidates for appointment to the stool of Olofin of Ilisan-Remo can, in my opinion, only act or perform that function through a majority of its members and not through a minority of its members. Our society being a democratic society, it cannot be said that a legislation requiring such a body to perform an act is complied with if a minority of the members of the body performs the act unless the legislation expressly so provide. In a democratic society, it is the intention or will of the majority that prevails. That intention is adequately expressed by section 52 of the Interpretation Law, Cap. 51, Laws of Ogun State. I therefore agree with the learned Justices of the Court of Appeal that the 1st appellant was not nominated by the Agaigi Ruling House.

 

For the above reasons and the reasons fully set out in the judgment of my learned brother, Uwais, J S.C., I too hereby dismiss the appeal and endorse the order as to costs made by my learned brother, Uwais, J S .C. In other words, the 1st to 4th Respondents shall have costs in this appeal assessed at N500 .00 against the 1st appellant and N500.00 against the 2nd to 13th appellants.

 

Judgment delivered by

Kawu, J.S.C.:

 

I have had the preview in draft of the judgment in this case which has just been delivered by my learned brother, Uwais, J.S.C. I agree completely with his reasoning and his conclusion that the appeal should be dismissed. I have nothing further to add.

 

 

Judgment delivered by

Agbaje, J.S.C.:

 

I have had the opportunity of reading in draft the lead judgment of my learned brother Uwais, J.S.C. I agree with him and the reasons he gave that this appeal lacks merit. It is in fact only to emphasise the correctness of his decision, in my view, that I make the following short contribution to it.

 

The facts giving rise to the case now on appeal before us have been set down in the lead judgment. I need not go over them here in any detail. The plaintiff, Bello Oyesile and three others sued for themselves and the Agaigi Ruling Rouse of Ilisan-Remo, the 1st Defendant, Timothy Adeilo Adefulu & 15 others for the following reliefs:-

 

1.      The plaintiffs' claim is a declaration that the appointment, the purported approval and the installation of the first Defendant as the new Olofin of Ilisan-Remo are irregular, unlawful and therefore null and void as same were not done in accordance with the provisions of the Western Region (Ogun State) of Nigeria Chiefs Law and the relevant Chieftaincy Declaration in respect of succession to the stool of Olofin of Ilisan-Remo.

 

2.      Injunction restraining the first Defendant from parading himself as the Olofin of Ilisan-Remo and the other Defendants from recognising the said first Defendant as the Olofin of Ilisan-Remo.

 

None of the named plaintiffs though members of Agaigi Ruling House at all times material to this case vied for the Chieftaincy title of Olofin of Ilisan-Remo when it became vacant. It is, however, common ground that Agaigi Ruling House of Ilisan-Remo is the Ruling House whose turn it is to nominate the successor to the office of Olofin of Ilisan. The plaintiffs, as I have said above, sued for themselves and on behalf of Agaigi Ruling House of Olofin of Ilisan-Remo. It is in these circumstances that counsel for the 1st Defendant, Chief F. R. A. Williams, S.A.N., and counsel for the 4th-lSth Defendants, Professor A. B. Kasunmu, S.A.N., have submitted to us that the plaintiffs have no locus standi to maintain the present action, seeing that none of them was a candidate for the vacant Chieftaincy title, the fact that the plaintiffs sued on behalf of the Ruling House whose turn it is to nominate a candidate for the vacant chieftaincy title notwithstanding. Reliance was placed heavily by both counsel for their submission in this regard on the decision of this Court in Momoh V. Olotu (1970)1 All N.L.R. 117. The relevant passages from the judgment as per Ademola, C.J.N., are at pages 12~124 and they are as follows:-

 

In regard to paragraph 1 of the Statement of Claim and the point raised that the plaintiff has no locus standi in the matter, the learned trial Judge ruled that as this paragraph has not been denied, the plaintiff cannot be said to have no interest. Now, what is the averment in paragraph 1? The plaintiff says that he is a member of the Olukare family. The question may be asked, is it enough for the plaintiff to state that he is a member of the family? Has he not got to state that he has an interest in the chieftaincy? Surely not every member of a chieftaincy family as such has interest in the chieftaincy title.

 

We are of the view that it is not enough for the plaintiff to state that he is a member of the family; he has to state further that he has an interest in the chieftaincy title, and furthermore, state in his statement of claim how his interest in the chieftaincy title arose. It is difficult to say on the pleadings filed that the plaintiff has any locus in the matter. We now turn to other aspects of the matter. The plaintiff brought this action in his personal capacity, but paragraph 2 of his statement of claim reads:

 

2.     The plaintiff brings this action on behalf of himself and other members of Owalukare ruling house.

 

The court below, rightly in our view, took no notice of paragraph 2 and treated the action as a personal action. This brings us to the question of the position of the plaintiff in this matter. Plaintiff has not claimed that he has a standing in this matter which entitles him to bring an action; or that he is representing a certain ruling family in this matter whose interests are affected and who are to be benefitted by the declaration sought in the writ, or that his existing right or his family's existing right has been infringed. See Lawani Odusanya and others W.A.C.A. 3016 (Cyclostyled reports) decided 19th October, 1949.

Mr. Ayoola for the plaintiff a greed before us that sin ce the section (sic) was not instituted as representative action, the court cannot take notice of paragraph 2 of the statement of claim and that this is purely a personal action. On that score, we fail to see the position of the plaintiff, who cannot say, and has not alleged, that his personal rights have been infringed." (Italics mine)

 

Unlike the position in Momoh V. Olotu (supra) the plaintiffs in this case have sued not only in their personal capacities but also in a representative capacity as representing the Ruling House, Agaigi Ruling House of IlisanRemo, whose turn admittedly it is to nominate the successor to the office of Olofin of Ilisan which is vacant. Paragraph 1 of the plaintiffs' statement of claim also pleads the latter.

 

It cannot be gain-said that the interests of Agaigi Ruling House will be affected by any appointment to the office of Olofin of Ilisan which purports to by-pass the nomination of a successor or successors to the office made by the Ruling House. The locus standi of Agaigi Ruling House, even on the authority of Momoh V. Olotu (supra), to challenge in a court action such a purported appointment cannot, in my judgment, be disputed.

 

A Ruling House will ordinarily consist of numerous persons. So, Agaigi Ruling House can eminently take advantage of the representatives' action procedure in the relevant rules of court as it has done here.

 

In my judgment, the decision of Momoh V. Olotu (supra) supports the contention of counsel for the plaintiffs that since the plaintiffs are also suing in a representative capacity that is on behalf of the Ruling House which is to nominate a successor or successors to the chieftaincy title in question, they, the plaintiffs have the locus standi to maintain and prosecute the present action. I therefore reject the contention of counsel for the Defendants/appellants that they, the plaintiffs, have no locus standi in this case.

 

The provisions of the Chiefs Law and the Chieftaincy Declarations relevant to the case in hand have been set down in the lead judgment. I will refer to the following provisions of the Chiefs Law:

 

11.      (1)     Where a vacancy occurs in a ruling house chieftaincy and a declaration has effect with respect to that chieftaincy:

 

(a)   The secretary of the competent council shall announce the name of the ruling house entitled according to customary law to provide a candidate or candidates, as the case may be, to fill that vacancy

 

(b)     not later than fourteen days after the announcement by the secretary, the members of the ruling house, acting in accordance with the declaration, shall submit the name of a candidate or the names of candidates, as the case may be, to the kingmakers. (italics mine)

 

The ruling house being not a natural person but a body of persons must necessarily act through agencies which, more often than not, are natural persons who are themselves members of that ruling house. It is perhaps in realisation of this that the farmers of the Chiefs Law in their wisdom say in section 11 ( l)(a) of that Law that the secretary of the competent council shall announce the name of the ruling house entitled according to customary law to provide a candidate or candidates as the case may be, to fill the vacancy that has occurred. But when it comes to dealing with how the ruling house shall act in this regard, it is said in section 11(1)(b) that it is the members of the ruling house who, acting in accordance with the chieftaincy declaration, shall submit the name of a candidate or the names of candidates as the case may be, to the kingmakers.

 

So in the context of the Chiefs Law, it can be said that a ruling house, a body of persons, a juridical personality recognised by that law act through members of that ruling house.

 

It is therefore wrong, in my judgment, as suggested by counsel for the 4th-15th Defendants, Professor Kasunmu, S.A.N., that the right to put forward a candidate or candidates is vested in the members of the ruling house under the Chiefs Law and not in the ruling house as an identifiable group. The said right is in my judgment vested in the ruling house as section 11(1)(a) of the Chiefs Law evidently shows. But, as I have just said, the ruling house will act in this regard through members of the ruling house (See sec. 1 1(1)(b) of Chiefs Law).

 

Clause V of the Chieftaincy Declaration (Exh. "P.") says as follows: 

The method of nomination by each ruling house is as follows:

 

The ruling house whose turn it is to provide a candidate shall nominate at a family meeting to be summoned by the family head, a candidate for the chieftaincy to be presented by the family head to the kingmakers.

 

A family meeting in Clause V of the Chieftaincy Declaration can only mean a meeting of the members of the ruling house. The purpose of this meeting is clearly for the ruling house, through members of the family, to nominate candidate or candidates to be presented to the kingmakers, in view of the provisions of section 11(1)(a) and (b) of the Chiefs Law, which I have copied above, and what I have said about them, I fail to see how this clause of the Chieftaincy Declaration can be said to be inconsistent with the provisions of the Chiefs Law. The Court of Appeal, in my judgment, rightly took the view that the right to nominate candidate or candidates for a vacant chieftaincy title is vested under the Chiefs Law and the Chieftaincy Declaration in the ruling house acting through members of the ruling house.

 

There is no evidence in the record of the proceedings in this case that the 1st Defendant was ever presented or submitted by the Agaigi ruling house to the kingmakers as a candidate for the office of Olofin of Ilisan.

 

The 1st plaintiff/witness, Mr. Julius Ishola Solaja, secretary to Ijebu Remo Local Government Council at all times material to this case said as regards the nomination of candidates made by Agaigi ruling house for the vacant chieftaincy title in ~uestion as follows:

 

When the stool of Olofin of Ilisan became vacant, I was still in this jurisdiction. As the Secretary to Local Government, I published notices inviting the relevant ruling house to present candidate or candidates for the consideration of the Kingmakers...............................

 

The family responded to my call, I attended the meeting of the family as an observer, minutes were taken ..............

 

I made my official observation in writing. This is a copy of the official observation .......................

 

Following that meeting, I obtained a certificate of nomination in my capacity as Secretary to the Local Government ....................

 

I now have the nomination certificate sent to me by the ruling family, I seek to tender ...........................

 

Tendered as exhibit "C", I forwarded the certificate of nomination (Exh. "C") and the minutes of the meeting to the Kingmakers for consideration. I asked the kingmakers to act within Statutory period of 7 days.

 

The Kingmakers acted on my letter about the nomination. They invited members of the kingmakers to a meeting and met on 17/3/81 to select the candidate. I was present at the meeting. After the kingmakers meeting, I received a protest letter even though I had received a letter before the meeting ...........................

 

Cross-Examination: ........................ Exhibit "C" (Certificate of nomination) did not contain all the names of those nominated at that meeting Page 2 of exhibit "B" read, only the 1st four names therein were contained in exhibit "C". In fact, 6 names (which included that of the 1st Defendant) were nominated that day e.g. that of the 1st Defendant and Awodein were not included in exhibit "C" (despite the fact that they were nominated) Members of Agaigi present were not supposed to vote at the ruling house meeting. Once a name is nominated and supported, that name must go to the kingmakers ....................................

 

On the 17/3/81 at the kingmakers meeting at which I was present, the 6 names were considered by the kingmakers present, the six names were the 4 names in exhibit "C" together with the two additional names I read at page 2 of exhibit "B", 14 kingmakers out of the 16 were present at the meeting .......................................

 

My observations contained in exhibit "B" is not consistent with exhibit "C" (Certificate of Nomination). (italics mine)

 

It is clear from the above evidence, that rightly or wrongly the name of 1st Defendant was not among the names of candidates submitted by the Agaigi ruling house to the Kingmakers for the vacant stool of Olofin of Ilisan.

 

The provisions of the Chiefs Law are equally clear. The Kingmakers can only, under that law, consider for appointment to the vacant stool of Olofin of Ilisan, candidate or candidates submitted to them by the ruling house in question, that is to say, the candidates in Exh. "C." See section 11(1)(d) & (e) of the Chiefs Law.

 

If it comes to the knowledge of the Kingmakers that Exh. "C" is defective in that it does not contain all the names of the candidates, there is no jurisdiction in the Kingmakers under the Chiefs Law to correct that defect by injecting into it the names of the missing candidates in Exh. "C" and then proceed with their deliberations on Exh. "C" as amended by them. The course open to the King-makers in the circumstance would appear to me to be for them to stop further deliberations of Exh. "C", after they had become aware of the defect in it for the:

good reason that the names of the candidates submitted to them by the ruling house do not appear to them, the Kingmakers, to be all the names of the candidates qualified and selected by the ruling house to fill the vacant chieftaincy title in question. Whereupon the Kingmakers will make the necessary machinery under the Chiefs Law to fill de novo the vacancy in question, so as to get the names of all nominated candidates, presented to the Kingmakers.

 

For the above reasons and the fuller reasons given in the lead judgment of my learned brother Uwais, J.S.C. I agree that the decision of the Court of Appeal, Ibadan Division, that the 1st Defendant/appellant was not duly nominated and presented to the Kingmakers, and in consequence, his purported appointment by the latter was erroneous, is correct.

 

In the result, I too, dismiss the appeals of all the appellants. I abide by all the consequential orders in the lead judgment.

 

 

 

Judgment delivered by

Nnaemeka-Agu, J.S.C.:

 

The appellant was the 1st Defendant in a proceeding before Sofolahan, J., in a contest for the stool of Olofin of IlisanRemo. The plaintiffs/Respondents had, for themselves and on behalf of the Agaigi-Ruling House of Ilisan-Remo, in the High Court, unsuccessfully challenged the appellant's appointment to the stool by the 4th to the 15th Defendants/Respondents and its approval by the 2nd and 3rd Respondents. But the Court of Appeal, coram Uche Omo, Ogundare and Onu, JJ.C.A., reversed the High Court decision and nullified the appointment and approval of the appellant as the Olofin of Ilisan-Remo.

 

The appellant has now appealed to this Court. Learned Senior Advocate for the appellant, 2nd and 3rd Defendants/Respondents, 4th to 15th Defendants/ Respondents each filed their respective briefs of argument and addressed us orally. The issues for determination have been set in the lead judgment of my learned brother, Uwais, J.S.C.

 

Before I proceed to express some opinion on some aspects of the main issues, I wish to say something on some important procedural points. The first is the position taken in this appeal by learned counsel for the 2nd and 3rd Respondents, Mrs. Kuforiji. Her clients are Respondents in the appeal. They did not file any cross-appeal. Yet learned counsel on their behalf filed a brief in which she argued that the appeal should be allowed. This Court has stated it in so many cases that the traditional role of a Respondent to an appeal is to defend the judgment appealed against. If he wants to depart from this role by attacking the said judgment in any way, he is obliged by the rules to file across-appeal. See on this -

 

Lagos City Council V. Ajayi (1970)1 All N.L.R. 291

Eliochin (Nig.) Ltd. & Ors. V. Victor Ngozi Mbadiwe (1986)1 N.W.L.R. (Pt. 14)47.

 

Without a cross-appeal, they are incompetent to play the role they have assumed in this appeal: that is the role of an appellant.

 

Also the learned Senior Advocate for the 4th to 15th Respondents, Professor Kasunmu, has taken objection to the part of the Respondents' brief titled "Further Argument." His contention is that there is no valid notice of cross-appeal to support it, and so this Court ought not to look at it at all. Mr. Sofola, S.A.N., for the Respondents' reply is that there is a notice of cross-appeal by the Respondents at pages 405 to 407 of the record. In my respectful view, this answer does not quite meet the fundamental vice raised by the objection. For as Professor Kasunmu points out, the grounds of appeal comprised in that notice of appeal are grounds of mixed law and fact. This was impliedly conceded by learned counsel on behalf of the Respondents when by a motion dated 5th September, 1987, he applied in the Court of Appeal under section 213(3) of the Constitution of 1979 for leave to appeal on grounds other than those of law. But then this application, evidently caught by affluxion of time, was withdrawn and struck out on the 1st of December, 1988. No similar application was filed or pursued in this Court. This Court has stated it a number of times that this Court is, by the Constitution, a court of law, not of fact, in the sense that an intending appellant can only appeal to this Court as of right on grounds of law. That leave must be obtained before an appeal on grounds other than those of law, such as in the Respondents' in this case, is an issue which goes to the vires of the court. Without leave, any purported appeal on grounds of fact or mixed law and fact is incompetent. I therefore, agree that the Respondents' purported cross-appeal is incompetent. There is one other point. Even if the Respondents had obtained leave and validly appealed, it is not proper practice to bring in argument thereon as "Further Argument." The Respondents while, correctly, combining the argument on the cross-appeal with that for the main appeal, were obliged to have clearly stated in their brief what part of the argument was in respect of the cross-appeal: See on this Order 6 rule 6(2) of the Supreme Court Rules, 1985. It appears to me to be the clear intendment of Order 6 rule 6(2) of the Supreme Court Rules, 1985, that whereas it is not necessary for a Respondent to file two separate briefs, one for the main appeal of which he is the Respondent and the other for the cross-appeal of which he is the appellant, he must clearly alert the appellant that his brief also contains the argument for the cross-appeal, so that if the appellant wishes to file a reply to the argument raised in the cross-appeal, he may do so. The intention of the law may not be met if the argument for the cross-appeal is simply slipped in as a further argument in the main appeal. For the above reasons, I shall not deal with all the points raised in the cross-appeal.

 

Two main issues in the appeal on which I wish to express an opinion are:

 

(i)      whether the plaintiffs/Respondents had locus standi to institute this suit; and

 

(ii)      whether the appellant was duly nominated as a candidate for the stool of Olofin of Ilisan-Remo.

 

Chief Williams, for the appellant and Professor Kasunmu for the 4th to 15th Respondents, who are also cross-appellants, have submitted that they had no locus standi to maintain the suit.

 

Both senior counsel relied heavily on the decision of this Court, per Ademola, C.J.N., in Momoh V. Olotu (1970)1 All N.L.R. 117, at p.123. The gist of their arguments is that, as the plaintiffs/Respondents brought the action for themselves and on behalf of Agaigi ruling house, but the house is not claiming to succeed to the stool, they have no locus standi to maintain the action. Only a person claiming to have the right to be a candidate could have had a locus or standing.

 

There can now be little doubt as to what is the implication of the term locus standi. It literally means a "place to stand"; hence a "standing to sue." In law, it denotes the "legal capacity to institute proceedings in a court of law": Thomas v. Olufosoye (1986)1 N.W.L.R. (Pt.18) 669, at p.685. It is, in Nigeria, a constitutional requirement in order to enable a person to maintain an action and is limited to the prosecution of matters relating to the civil rights and obligations of the plaintiff, be that plaintiff a person or persons, a group of persons, a statutory body, a government, an authority or any other juristic person (See section 6(6)(b) of the Constitution of the Federal Republic 1979.) That paragraph of the sub-section of the Constitution provides:

 

6.     (6)     The judicial powers vested in accordance with the foregoing provisions of  this section -

 

(a)     XXXXXXXXXXXXXXXXXXXXXXXXXXXXX

 

(b)   shall extend to all matters between persons, or between government or authority and any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person;

 

See also Senator A. Adesanya V. President of the Federal Republic of Nigeria & Anor. (1981)1 All N.L.R. 1. Thus in Nigeria the requirement of locus standi is constitutionally defined in civil cases by reference to the criterion that only the person or persons whose civil rights or obligations are in issue can institute any particular suit. It is thus a threshold issue in that the facts showing that right of the plaintiff to sue must be disclosed in the statement of claim: Amusa Momoh V. Jimo Olotu (1970)1 All N.L.R. 117. So, it can be said that on the general statement of the law, the learned senior counsel for the appellant and the Defendants/Respondents are correct.

 

It is noteworthy that a careful reading of Momoh's case shows that it recognizes the fact that in a chieftaincy case, such as this, the right to sue can be vested in a ruling house. For the honourable Chief Justice Ademola stated: at page 124:

 

Plaintiff has not claimed that he has a standing in this matter which entitles him to bring an action; or that he is representing a certain ruling family in this matter whose interests are affected and who are to be benefited by the declaration sought in the writ or his family 's existing right has been infringed. See Lawani Odusanya & Ors. v. Bakare Adefodurin and others W.A.C.A. 3016. (Cyclostyled Reports) decided 19th October, 1949. (Italics mine for emphasis)

 

In the instant case the four plaintiffs/Respondents brought the action "For themselves and the Agaigi ruling house of Ilisan-Remo." And the gist of the action is that the selection of the appellant as the Olofin of Ilisan-Remo was done in such a way as to constitute a violation of the rights of Agaigi ruling house to nominate a person or persons of their choice as a candidate or candidates for the chieftaincy selection by the Kingmakers. It is therefore the corporate right of the family, not that of any particular individual member of the family, that is in issue. It was a different situation in Momoh's case (supra) in which the plaintiff sued personally and was asserting his personal right. As observed by the learned Chief Justice, although he averred in paragraph 2 of the statement of claim that he was representing the chieftaincy family, that averment was ignored in view of the personal capacity in which he sued and prosecuted the action. I am, therefore, satisfied that it is the Agaigi ruling house in a representative action, and not any particular individuals thereof, that had the standing to sue and prosecute the action. I must therefore resolve the issue of locus standi against the appellant and the Defendants/Respondents.

 

The issue as to whether or not the appellant was nominated as a candidate for the stool of Olofin of Ilisan-Remo depends on the meaning of ''nomination" within the meaning of the Chiefs Law of Ogun State. For, it must be recognized that "nomination" is to a great extent a word of rather wide import. In ordinary parlance, it means simply "the act of mentioning by name." See Shorter Oxford Dictionary (Revised Ed.) Vol. 2 p. 1409; Wharton's Law Lexicon (14th Edn.) p.692. As a term of art, it means the action of appointing a person by name to some office or duty or as a candidate to an elective post. Its precise meaning in the instant case depends on the correct interpretation of sections 10 and 11 of the Chiefs Law of Ogun State (i.e. Chiefs Amendment Edict No.1 of 1971) read together with the Chieftaincy Declaration. The relevant provision of section 10 runs as follows:

 

(1)      A person shall unless he is disqualified, be qualified to be a candidate to fill a vacancy in a recognized chieftaincy if -

 

(a)     he is proposed by the ruling house or the persons having the right to nominate the candidate according to customary law; and

 

(b)

(i)     he is a person whom the ruling house or the persons having the right to nominate candidates are entitled to propose, according to customary law, as a candidate; or

 

(ii)    he is unanimously proposed as a candidate by the members of the ruling house or the persons entitled to nominate candidates.

 

These provisions require that a person or persons to be candidates must not only be qualified so to be but also must be "proposed by the ruling house." No question of unanimity on a sole candidate under 5. 1O(b)(ii) arises in this case: so the life question is how do they get nominated? How do they get proposed by the ruling house? The clues to the answer are provided by paragraphs (iii) and (v) of the Chieftaincy Declaration, which was tendered as Exh. "P". They state:

 

(iii)  The persons who may be proposed by a ruling house entitled to fill a vacancy in the chieftaincy shall be:

 

(a)      members of the ruling house;

 

(b)     of the male or female line at will with a popular support.

           xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

 

(v)    The method of nomination by each ruling house is as follows:

 

The ruling house whose turn it is to provide a candidate shall nominate at a family meeting to be summoned by the family head, a candidate for the chieftaincy to be presented by the family bead to the kingmakers. (Italics mine)

 

Implicit to the provision that the person or persons to be proposed or nominated to fill the vacancy shall be "with a popular support" is the fact that such a person or persons must command the support of the majority of the members of the ruling house. This conclusion is in accord with the provisions of section 53(a) of the Interpretation Law of Ogun State, Cap. 50, Laws of Ogun State, 1978, which provides:

 

(a)    Whenever any act or thing is by any written law required to be done, or any decision taken, by a body of persons consisting of not less than three, such act or thing may be done, or such decision taken, in the name of that body, by a majority of those persons.

 

From all these, it appears to me that nomination within the meaning of the Laws of Ogun State i.e. Chiefs (Amendment) Edict No.1 of 1971 and the Declaration made under section 4(2) thereof with respect to the selection of the Olofin of Ilisan-Remo is a selection, by members of the ruling house, entitled to select a candidate, of a candidate or candidates who command the support of a majority of members of the ruling house for submission by the ruling house through its head of the family to the kingmakers. A person is not nominated under the Law and the Declaration by simply being mentioned by name even if such a mention is supported by another member, as the appellant has argued. In the instant case, it is of material significance that after the candidacy of the appellant had been proposed and seconded, the matter was put to the vote of 97 members of the ruling house but was defeated by 82 votes against and 15 in favour. Clearly from what I have said, he was not duly nominated. As a valid nomination by the ruling house in a sine qua non for either valid submission for selection by the kingmakers or its approval by the Governor, it follows that any purported selection by the Kingmakers or its approval by the Governor was an exercise in futility. The maxim is: ex nihili nihil fit.

 

For the above reasons, and the fuller reasons contained in the judgment of my learned brother, Uwais, J.S.C., I entirely agree with the Court of Appeal that the learned trial Judge was in error to have dismissed the plaintiff/Respondents' case. I therefore dismiss the appeal and endorse the orders as to costs and otherwise, as made in the lead judgment.

 

I agree with my learned brother that the appeal against the order of the stay or execution granted by the Court of Appeal has been over-taken by the disposal of the main appeal. This Court has stated it several times that it will not waste its time proffering opinions on hypothetical issues or deciding abstract and academic issues. I would therefore strike out the appeal: it is hereby struck out.

 

Counsel

 

Chief F.R.A. Williams, S.A.N.

(with him, Chief D. K. Solesi)

  ........

For the 1st Appellant

Professor A. B. Kasunmu, S.A.N.

(with him, L. A. Adeniyi) for 

  ........

For the 2nd to 13th appellants

K. Sofola, S.A.N.

(with him, O. A. Obaseki (Miss) and B. D. Soetan)

  ........

For the 1st to 4th Respondents

Y. A. Kuforiji (Mrs.)

Senior State Counsel, Ogun State Ministry of Justice

  ........

For the 5th & 6th Respondents