In The Supreme Court of Nigeria
On Friday, the 6th day of April 1990
M.A. Eleso ...... Appellant
The Government of Ogun State ....... Respondents
The Attorney-General and Commissioner for Justice of Ogun State
Oba Oyebade Lipede I
The Alake of Egbaland
Chief Toye Coker
The Apena of Egba
Chief F.A. Oyalowo
Judgement of the Court
The relevant facts of this case which is on appeal to this court are not in contest. The plaintiff, Chief F.A. Oyalowo and the 4th defendant, E.A. Eleso, both belong to the Oke Idiroko section of Ijaiye. There are three sections, to wit, Abese, Adebakin and Oke Idiroko and by Ex. C, which is a resolution that the appointment to the Balogun chieftaincy should be in rotation, indicate the plaintiffs and the 4th defendant's section as the one to produce a candidate at the material time.
The Alake [3rd defendant] was the Prescribed Authority pursuant to section 22(1) of the Chiefs Law, Laws of Ogun State of Nigeria 1978, Cap.20.
The plaintiff in his pleadings and evidence had in court claimed that he had been nominated by the people of Oke-Idiroko and that he was presented to the community at large and was installed by the lyalode who placed the Akoko leaves on his head and that he was later presented to the Alake who accepted and approved his appointment. He was not invited to any inquiry or settlement of dispute by the 1st to 3rd defendants that the 3rd defendant has no right to appoint any Balogun for Ijaiye. The 4th defendant on the other hand, gave his own account to the effect that he was in fact nominated in absentia by the people of Oke Idiroko and the presentation to the community was also done in absentia. When he later saw the chiefs, his nomination was confirmed and he gave his consent to serve.
The account of the meetings of the Chiefs, who met to consider the nominations of both candidates, was given by the 4th defendant. And that was that the Chiefs were four in number. They were equally divided in their votes for the two candidates. The Prescribed Authority, the Alake of Egbaland however refused to react to the voting, that is, failed to use a casting vote, which he believed to be bad. The Alake referred the matter to the Government and the Government resolved the matter in favour of the 4th defendant.
The trial court accepted the evidence of the plaintiff only in regard to his nomination. He disbelieved his evidence that he was presented to the Alake and approved by him. He held that, on the evidence, the plaintiff could not rightly claim to be the Balogun of Ijaiye and Are Egba.
How about the other candidate - the 4th defendant? The trial court held that the four chiefs were not Kingmakers as they were presumed to have been, the Alake had no casting vote. The 1st defendant, the Government wrongly assumed the power of the Prescribed Authority. The effect is that the appointment of the 4th defendant was also not valid.
I have taken pains to examine the sections of the Chiefs Law dealing with this case and (sic) I am with the relevant sections which are sections 18 and 20, 21 and 22 with other sub-sections of the chiefs law which are relating to this case have not been complied with. There is no doubt that the chieftaincies involved in this action are minor chieftaincies and they do not require any recognised and approved Registered Declaration showing that kingmakers are essential in the appointment.
After a very careful consideration of the evidence before the court and the submission of counsel on points of law, I have come to conclusion that the plaintiff has failed to prove his case satisfactorily but there is no doubt that the plaintiff has an interest to protect and his case has not failed in toto. I have also found that the method of appointment of the 4th defendant was not proper and it will be difficult to enter judgment in favour of the 4th defendant. The 4th defendant is certainly not having a claim before the court and it is only the duty of the court to point out that such appointment should not be allowed to stand in interest of justice without making any reference to the irregularities involved in the making of the appointment.
In conclusion, I have found that both the plaintiff and the 4th defendant are not entitled to judgment it becomes necessary to consider the proper order to be made in the circumstances. I would therefore request counsel to address me briefly on the proper order to make in the circumstance.
And the learned Judge called for argument on the order to make. He concluded
After a very careful consideration of the circumstances of this case I have decided to enter a non-suit against the plaintiffs claims on its entirety.
The plaintiff appealed to the Court of Appeal. The 4th defendant also cross-appealed.
Briefs were filed in that court and arguments were presented. In a well considered judgment by; the court Ogwuegbu. J.C.A.. Akanbi and Omololu-Thomas, JJ.C.A., concurring, the learned Justice of the Court of Appeal agreed with the following findings of the learned trial Judge
1. That it was a mistake by the 1st, 2nd and 3rd defendants to have regarded the four chiefs they invited for the purpose of the selection and appointment as kingmakers and also the Alake as Chairman of the Kingmakers with a casting vote. That it was with this false premise that the 1st defendant proceeded to carry out the duty of the Alake as the prescribed authority and consequently approved the appointment of the 4th defendant.
2. That as 1st defendant assumed the powers of the 3rd defendant (the Alake of Egbaland) the effect of the exercise is that the appointment and approval of the 4th defendant cannot be regarded as valid.
3. That both plaintiff and the 4th defendant are not entitled to judgment.
The court however went on non-suit
Having found that the procedure adopted by the 1st defendant and/or 3rd defendant was improper and irregular and held the appointment and approval of the 4th defendant invalid, the road was left wide open for the trial Judge to consider the claims sought by the plaintiff in the light of his findings. It is my humble view that a non-suit should not have been the proper order in the circumstances. He was in error in non-suiting the plaintiff.
The learned Justice of the Court of Appeal went on
Claims one and two of the plaintiff as endorsed on the writ of summons speak for themselves. They are based on the regularity, legality and/or propriety of the appointment of the 4th defendant by the 1st defendant and/or the 3rd defendant. The learned trial Judge having found that it was irregular and invalid, should have granted the first two prayers.
The stool of Balogun of ljaiye is a minor chieftaincy, which is governed by S. 18 of Cap. 19 Laws of Western Nigeria, 1959 or 5.22 Cap. 20 Laws of Ogun State, 1978. It is not a recognised chieftaincy under part 2 of either law. Both the governor and the 3rd defendant were under misapprehension of their powers under S.22(3) and S18 respectively of the Chiefs law Cap. 19 Laws of W.N 1959.
It is therefore my firm conclusion that the learned trial Judge should have granted declarations one and two in the plaintiff's claim endorsed in the writ of summons.
The court allowed the appeal. The two claimed which the Court of Appeal said should have been granted ,and allowed to be granted are:
(1) A declaration that the purported appointment of the 4th defendant by the 1st defendant and/or 3rd defendant as the Balogun of ljaiye is irregular, illegal, unconstitutional not being in accordance with the custom and tradition of ljaiye and therefore null and void.
(2) A declaration that the purported appointment of the 4th defendant by the 1st defendant and/or the 3rd defendant as the Are of Egba is irregular, illegal, unconstitutional not being in accordance with the custom and tradition of Egbaland and therefore null and void.
The 4th defendant has now appealed to this court. His grounds of appeal are subsumed in the issues for determination, as stated in the Brief of his learned counsel. The issues are
(1) Has the plaintiff sufficient interest in the office of Balogun of Ijaiye which is not a hereditary title and to which no specified family is entitled, before an approval by the Prescribed Authority, to make him a competent disputant?
(2) Is the Governor of the State as Chief Executive not empowered and authorised under the Chiefs Law for the peace order and good government of the State to resolve a stalemate in favour of one of two or several contestants as in this case and in so doing to approve his appointment as a minor chief.
(3) Does the Court of Appeal accord to an appellant the entrenched right of fair hearing if it considers only one ground of appeal out of fiv