ADESINA v. BANKOLE & ORS (2018)

In The Court of Appeal of Nigeria

On Tuesday, the 13th day of February, 2018

CA/IB/227/2011

Before Their Lordships

MONICA BOLNA’AN DONGBAN-MENSEM  Justice of The Court of Appeal of Nigeria
HARUNA SIMON TSAMMANI  Justice of The Court of Appeal of Nigeria
NONYEREM OKORONKWO  Justice of The Court of Appeal of Nigeria


Between

DANIEL TAIWO ADESINA-Appellant

AND

1. JOSEPH BANKOLE
2. ABIODUN AFOLABI
3. ANTHONY FABIYI
4. S.A. FAFUNMI
(For themselves and on behalf of Alaigbo Ajaro Ruling House of
Idomogun Quarters, Ibatefin)
5. COMM. FOR LOCAL GOVT. &
CHIEFTAINCY, OGUN STATE
6. ATTORNEY GENERAL OF OGUN STATE-Respondents

…………………….A…………………….

NONYEREM OKORONKWO, J.C.A. (Delivering the Leading Judgment): By the Judgment of the Ogun State High Court delivered on 10th June 2011 at Ilaro division thereof Per Onafowokan J, the Court granted the reliefs sought by the respondents who, against the appellants claimed as follows:-
(i) A declaration that the defendant is not a member of Alaigbo Ajaro Ruling House of Ibatefin Town in the Ipokia Local Government Area of Ogun State.
(ii) A further declaration that the defendant not being a member of Alaigbo Ajaro Ruling House, the setting aside of the defendant’s appointment as a Baale of Ibatefin is valid, final in accordance with the custom and tradition of the Baaleship of Ibatefin Town in the Ipokia Local Government Area of Ogun State.
(iii) A declaration that the purported installation of the 1st defendant by the 2nd defendant as the Baale of Ibatefin on 10th November, 2007 is irregular, null, void and contrary to native law and custom of Ibatefin community.
(iv) Injunction restraining the defendant from acting performing and parades himself as the Baale of Ibatefin.

A terse account of the facts of the case giving rise to this appeal is as narrated by the trial court which record as follows:-
This case relates to the vacant stool of the Baale of Ibatefin in the Ipokia Local Government Area of Ogun state. Upon the death of Sala Idowu the last Baale in Ibatefin, there arose the need to fill the stool. It is a common ground that there is a registered Chieftaincy Declaration exhibit G for the stool which provides for two Ruling Houses to wit: Onimasunu and Alaigbo Ajaro. The immediate past occupant of the stool was from Onimasunu Ruling House. It is now the turn of Alaigbo Ajaro Ruling House to produce a candidate for the stool. By Exhibit G, the persons who may be proposed as candidates by the ruling house entitled to provide candidates to fill a vacancy in the chieftaincy shall be members of the ruling house. The claimants and the 1st defendant are however at issue on who between them properly belongs to Alaigbo Ajaro, Ruling House. The claimants who sued as representatives of Alaigbo Ajaro Ruling Family alleged that the founder of Ibatefin was their ancestor, Alaigbo Ajaro, a migrant from Benin. According to him, Alaigbo was the first Baale of Ibatefin while one of his children Olapo was the third Baale. They alleged that in 2004 when the stool became vacant, the family nominated the 3rd claimant as Baale elect and forwarded his name to the Onipokia of Ipokia the prescribed authority. They alleged that rather than for the Onipokia to consent to the nomination of the 3rd claimant, he installed the 1st defendant, a member of Ipadi-Adesi family as Baale. They alleged that based on their protestation, the Onipokia later withdrew the appointment of the 1st defendant but nonetheless the 1st defendant still parades himself as the Baale of Ibatefin.
On the other hand, the 1st defendant who admitted that he is a member of Ipadi-Adesi family claimed that Ibatefin was founded by one Iyanda a hunter and farmer from Benin. He alledged that his ancestor one Lasilo begat his father. He alleged that he and not the claimants is the true Alaigbo Ajaro. He however alleged that no Baale has ever reigned from Alaigbo Ajaro Ruling House either before or after the registration of the chieftaincy declaration.
In his Judgment, the trial Court preferred the case of the respondents who were claimants and rejected the defence of the respondent and the associated counter claim.
Being dissatisfied, the defendant as appellant lodged this appeal on 14th June 2011 on a sole ground of appeal with particulars which reads thus:-
1. The learned trial judge erred in law when he held that the 1st defendant only established that he belongs to the Ajaro Alaigbo family and not the Alaigbo Ajaro which family is indicated in the Chieftaincy Declaration.
Particulars
(a) The distinction between the two names identified by the Learned Judge is a distinction without a difference.
2. The learned trial judge erred in law when he preferred the Traditional evidence of the Claimants to that of the 1st defendant on very wrong consideration.
a. The learned trial judge laid too much emphasis on the evidence of the 1st defendant that none of his progenitors was a Baale ignoring the evidence of the 1st defendant as to why and how Baaleship came to replace kingship.
b. The Claimants themselves led evidence that no one from Alaigbo Ajaro has ever been a Baale since the Chieftaincy Declaration came into effect.

…………………….B…………………….

Pursuant to leave of Court, additional grounds of appeal were filed whereby the following grounds (shorn of particulars) were filed:
1. The learned trial judge erred in law when he held that the 1st defendant only established that he belonged to the Ajaro Alaigbo family and not the Alaigbo Ajaro which family is indicated in the Chieftaincy Declaration.
2. The learned trial judge erred in law when he preferred the traditional evidence of the Claimant to that of the 1st defendant on very wrong consideration.
3. The learned trial judge erred in law when he dismissed leg (b) of the Appellants, counter claim and granted leg (ii) of the Claimants claim when it was apparent from the facts before the Court that the powers of the prescribed Authority and the Commissioner in charge of Chieftaincy setting aside the installation of the Appellant were not validly exercised according to law.
4. The learned trial judge erred in law in entertaining and granting reliefs (iii) and (iv) contained in the Claimants amended statement of claim dated the 23rd December, 2009 when the Court lacks jurisdiction.

From the four grounds of appeal, the appellant in his brief raised three (3) issues for determination thus:
(a) Whether the claimants complied with the mandatory provisions of Section 22 of the Chiefs Law of Ogun State, 2006 before instituting this action (Ground 4).
(b) Whether the revocation of Appellants appointment as Baale of Ibatefin followed laid down procedure in the Chief Law of Ogun State, 2006. (Ground 3).
(c) Whether the 1st to 4th Respondents successfully proved that their progenitor was the one referred to in the chieftaincy Declaration of Exhibit G having regarded to evidence that several families and individuals have been Baale before the Chieftaincy Declaration. (Grounds 1 and 2)
The 1 ??? 4th respondents is respondents in their brief formulated three (3) issues as follows:-
(1) Whether the 1st Defendant i.e. Taiwo Adesina is a member of Alaigbo Ajaro Ruling House.
(2) Whether the purported installation of the 1st Defendant by the 2nd Defendant as Baale of Ibatefin on the 10th day of November, 2007 is regular and in accordance with the Native law and custom of Ibatefin community and the chiefs law of Ogun State 2006.
(3) Whether the claimants complied with the mandatory provision of Section 25 of the Chiefs Law of Ogun State 2006 before instituting this action.
The 5th and 6th respondent also filed a brief in which these official respondents identified three (3) issues namely.
1. Whether the trial Court has jurisdiction to entertain this suit.
2. Whether the learned trail judge was right when he held that the Appellant is not a descendant of Alaigbo Ajaro family referred to in the Declaration.

A close appraisal of the briefs will show that issue No. 1 of the appellants and No. 3 of the 1st -4th respondents and No.1 of the 5th and 6th respondents are related or coincidental and would be argued together.
In arguing the issue as their number 1, the appellant asked whether there was compliance with Section 22 of the Chiefs Law of Ogun State 2006 before the action was instituted. In effect appellants argue that by virtue of Section 22 of the Chiefs Law of Ogun State 2006, a person aggrieved by a decision of prescribed Authority in approving or refusing to approve an appointment under the Law shall make a representation to the commissioner in charge of Chieftaincy for the review of the decision within 21 days legal authorities relied on include Aribisala vs. Ogunyemi 2005 21 NSCQR 133; Eguamwense vs. Amaghizemwen 1993 (pt.315) 1 at 126; Adesola vs. Abidoye & Anor (1999) 14 NWLR (pt. 63) 28 at 69.

In the case leading to this appeal, appellant contend that the respondents case was time barred in that their complaint to the 5th respondent was Statute barred and that the action was therefore incompetent having not first exhausted the administrative remedies afforded by the Law aforementioned.
For the 1st – 4th respondent, in their response of issue No. 2 of their brief, it was contended that appellants reference to Section 22 of the Chiefs Law is misconceived and that the Law dealing with approval or otherwise of a minor chieftaincy is Section 25 of the Chiefs Law which was set out as follows:
Where a person is appointed, whether before or after the commencement of this law to fill a vacancy in the office of a minor chief by those entitled by customary law so to appoint and in accordance with customary law,the prescribed authority may approve the appointment.

…………………….C…………………….

(3)Where there is a dispute whether a person has been appointed in accordance with customary law to minor chieftaincy the prescribed authority may determine the dispute.
(4) The decision of the prescribed authority
(a) To approve or not to approve an appointment to a minor chieftaincy; or
(b) Determining a dispute in accordance with Subsection (3) of this section shall be final and shall not be questioned in any Court.
(5) Any person aggrieved by the decision of the prescribed authority in exercise of the powers conferred on the prescribed authority by Subsection (2) (3) and (4) of this Section may, within twenty one days from the date of the decision of the prescribed authority, make representation to the commission to whom responsibility for chieftaincy affairs is assigned that the decision be set aside and the commissioner may after considering the representation, confirm or set aside the decision.
For the 1-4th respondents, it was argued that the evidence of Abiodun Afolabi in Exhibit J at page 14023 of the record show the sufficient level of compliance these appellants made in compliance with the law. Reference was also made of Exhibit A and Exhibit D and Exhibit L being representation to the commissioner.
Concerning the prescribed authority, the 1st -4th appellants argue that by reason of their compliance with the Section 25 of the Chiefs Law, the prescribed Authority had done his duty by revoking the appointment of the appellant as directed by the commissioner and the action was only taken to stop appellant parading himself illegally as Baale citing Owoseni vs. Faloye (2005) (Pt.284) 220 at 235 -236.

The 5th -6th respondents brief on the same issue argued at paragraph 4.2 and 4.3 of 5-6 respondents brief thus:-
It is further submitted that where an enabling law has provided or made provisions for certain steps to be taken before an action is instituted in Court. It would be premature or a litigant to institute an action where he has not complied with the stated procedure in the law and the Court will be robbed off jurisdiction to entertain the matter. Bamisile v. Osasuyi & ors (2007)9 NWLR pt 1042 pg 225. Owoseni v. Faloye (2005) 10-11 SCM 300, Okomalu v. Akinbode (2006) 5 SCM 144 @ 158. Aribisala v. Ogunyemi (2001) FWLR pt 31 pg 2869 @ 2879.
Section 22 of the Chiefs Law quoted in the Appellant’s brief is not applicable here. The relevant law here is Section 25 of the Chiefs Law of Ogun State 2006. A recourse must therefore be made to the provisions of Section 25 of the Chiefs Law of Ogun State 2006 in order to determine whether or not there are steps to be followed before an action can be filed.

It was also contended for the 5th -6th respondent that appellant did not make the issue of 5th respondents (prescribed Authority) an issue at the Court below. In deed at paragraph 4.4 of their brief it was argue that:
It was not disputed in the lower Court that the 1st -4th Respondents made the required representation to the 5th Respondent that the approval granted to the Appellant as Baale of Ibatefin be set aside. The argument of the Appellant was that same was not done within 21 days as required by law. In order to determine whether or not the representation was made within twenty one days as required by law, one has to determine when the prescribed authority took the decision and when the representation was made.
In my view, the answer to the question raised in this issue differently couched by the parties is to be found inSub-section 5 of the Chief’s Law of Ogun State. It provides:
Any person aggrieved by the decision of the prescribed authority in exercise of the powers conferred on the prescribed authority by Subsection (2) (3) and (4) of this section may, within twenty one days from the date of the decision of the prescribed authority, make representation to the commission to whom responsibility for chieftaincy affairs is assigned that the decision be set aside and the commissioner may after considering the representation, confirm or set aside the decision.
The evidence in the case shows that the 5th respondent Prescribed Authority revoked the approval purportedly accorded the appellant whereupon recognition was bestowed on the 3rd respondent this was long before the respondent’s action or suit which gave rise to this appeal. The question of the respondent being aggrieved by the approval of the appellant does not arise as it was overtaken by the subsequent withdrawal of approval. There was no reason for the respondents to be

…………………….D…………………….

aggrieved. As indicated in the brief of the 1st-4th appellant, the action of the 1st -4th respondent is move to stop the illegal parading of the appellant as Baale of Ibatefin than a complaint against the prescribed Authority the issue is misconceived and is resolved against the appellant.
The next issue of the appellant is formulated as issue 2 which is whether the revocation of the Appellants appointment as Baale of Ibatefin followed laid down procedure in the Chiefs Law of Ogun State 2006 which is similar to 1st-4th respondents issue No. 2 whether the purported installation of 1st defendant (herein appellant) as Baale of Ibatefin on 10th day of November 2007 is regular and in accordance with the Native law and custom of Ibatefin community and the Chiefs Law of Ogun State 2006 which same issue was framed by 5th & 6th respondent as whether the learned trial judge was right when he held that the revocation of the approval of appointment of the appellant was valid.
Arguing this issue, appellant relies on Section 22 (6) of the Chief Law and the power of the Commissioner to confirm and set aside the approval. Referring to Subsection 6 thereof, Appellant argues that the commissioner May as the Law provides cause an inquiry to be held. Appellant interpreting the word May to mean shall argues that the commissioner failing to hold any such inquiry ran afoul of Section 36 of the Constitution and thereby failed to hear all sides.
Appellant also accused the 5th respondent prescribed Authority for setting aside the appointment of appellant without any form of inquiry on hearing contrary to Section 22 (6) of the Law.
Against the judge, appellant argued that the lower Court Simply dismissed the leg of appellants counter claim challenging his removal because the appointment was void ab initio. Appellants contends that the removal was null and void 
1st – 4th respondent in response to this issue referred to Exhibit G the registered declaration governing the appointment of Baale of Ibatefin which provides for two Ruling Houses namely Onimasunu and Alaigbo Ajaro to fill any vacancy in the stool of Baale. It is not in dispute that it is the turn of Alaigbo Ajaro to fill the vacancy, for an applicant to qualify such applicant must be from Alaigbo Ajaro. Evidence was led which showed that appellant was not from Alaigbo Ajaro. The trial judge accepted the evidence. There was also evidence they argued that the Yewa Traditional council Exhibit C, Exhibit , from the Alaigbo Ruling House, Exhibit F and Exhibit G which provides for the two Ruling Houses to fill vacancy to the stool.
Of particular interest is Exhibit L1 which is a letter of the commissioner to the prescribed Authority Oba R.O.A Adeole which reads thus:
CHM.3/71/T/8 3rd March, 2008
Kabiyesi Alayeluwa,
Oba R.O.A Adeole,
Onipokia of Onipokia,
Aafin Onipokia,
Ipokia.
Kabiyesi,
RE: BAALE OF IBATEFIN CHIEFTAINCY TUSSLE IN IPOKIA LOCAL GOVERNMENT.
I am directed to inform Kabiyesi that the Honourable Commissioner for Local Government and Chieftaincy affairs has considered series of petitions and protest letters received on the Ibatefin Baaleship tussle and the recommendation of Yewa Traditional Council thereon and in line with Section 25 (i) of the Chiefs Law, Laws of Ogun State of Nigeria, 2006 has directed that the appointment of Daniel Taiwo Adeshina as Baale of Ibatefin should be set aside because the appointment is not in order as it does not conform with the declaration of the said chieftaincy.
2. Consequent upon the above, lam to advise Kabiyesi to strictly adhere to the provisions in the declaration of Baale Ibatefin in the process of selecting a new Baale for Ibatefin.
3. Kabiyesi Alayeluwa.
E.O. Sofile
For Permanent Secretary

For this issue, the 5th and 6th respondent in their brief argued thus:
The lower Court after giving both parties fair hearing and based on the evidence before it find the traditional evidence of the 1st -4th Respondents more cogent, reliable and probable than that of the Appellant. The lower Court is satisfied that the 1st -4th Respondents by their evidence that their ancestor and his third son were Baale in Ibatefin before the Chieftaincy declaration (Exhibit G) established a factual connection to the Alaigbo Ajaro Ruling House as opposed to the evidence of the Appellant that none of his Ruling House as opposed to the evidence of the Appellant that none of his ancestors had ever

…………………….E…………………….

been Baale of Ibatefin before the Chieftaincy declaration.
It is humbly submitted that the learned trial judge came to the right conclusion when he held that the Appellant is a descendant of Ajaro Alaigbo and not a descendant of Alaigbo Ajaro or a member of the ruling house.
How did the trial Court resolve the issue when similarly arose there at. I respectfully quote part of the judgment of the trial Court at pages 140 & 141 of the record where the trial Court found and held as follows:
A registered declaration is a conclusive evidence of the customary law regulating the selection of a person and to a recognized chieftaincy. In the circumstance, I believe the traditional evidence of the claimants, un-contradicted as it were and find it more cogent, reliable and probable than the 1st defendant???s which is as incredible as it is spurious. I am satisfied that the claimants by their evidence that their ancestor and his third son were Baales in Ibatefin before Exhibit G established a factual connection to Alaigbo Ajaro Ruling House, while the 1st defendant, to use his evidence, is a pretender to the lineage and or dynasty of Alaigbo Ajaro as he is by no way related to the dynasty. I so hold. On the totality of the evidence led in this case, I find and hold that the claimants are the true and bona fide descendants of Alaigbo Ajaro and members of Alaigbo Ruling House. I find and hold that the 1st defendant is a descendant of Ajaro Alaigbo and not descendant of Alaigbo Ajaro or a member of the Ruling House. He is an impostor and a usurper. He is not in any way entitled to the office of Baale of Ibatefin and any purported appointment and or installation of the 1st defendant as Baale of Ibatefin was void ab initio. I so hold. See: Oduntan v. Akibu (2000) 7 SC (pt.2) 106. In the premises, I find claims I, ii, iii and iv of the claimants proved. I allow them. On the same premise, 1st defendant’s counter-claim (a) fails and it is dismissed. Counter-claim (b) also fails due to (a) my earlier finding that his purported appointment was void ab initio; and (b) his evidence of appointment- exhibit T was unsigned and as a consequence of no evidence value.
This issue deals with qualification for candidacy of the persons seeking to be Baale. From the evidence considered and accepted by the trial Court, the appellant is not from the Alaigbo Ajaro Ruling House and so even the purported appointment initially made by the 5th respondent was a nullity. If a nullity it was of no effect. See: Gbaniyi Osafile & Anor vs. Paul Odi (1990) 5 SC (Pt. 11)1.
If is not difficult to agree entirely with the trial judge on the evaluation and acceptance of the evidence. The issue raised as appellants No.2 is without Merit and is resolved against the appellant.
The last issue to be considered is the appellants issue No.1 which is whether the 1st defendant (appellant) is a member of the Alaigbo Ruling House?
The trial judge had answered this question when he held that 1st defendant, on the evidence, ???is not a descendant of Alaigbo Ajaro or a member of the Ruling House.??? See Page 140 of the record.
This issue has similarly been considered in the treatment of other issue.
In the final analysis, all the issues raised from the grounds of appeal filed in this appeal fail as being unmeritorious. Appeal accordingly is dismissed.
MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A.: It is crystal clear from the pleadings at the trial Court, the decision of the trial Court and the issues raised for the determination of this Court, that two factors stand out. There are the well documented legislated traditional rules on the subject matter and the role of the established ruling houses.
Being so, the issues revolve around the evaluation of evidence and the adduction of value to the evidence in the light of the guiding rules and regulations.
The Judgment of the learned trial Court, extracts of which were reproduced in the lead Judgment prepared by my learned brother Nonyerem Okoronkwo JCA, display a masterly application of all the requisite adjudicatory skills in the management of facts and the application of law thereto. I too find no compelling reason to upset the decision of the learned trial Court.
I too hereby dismiss the appeal as lacking in merit.
HARUNA SIMON TSAMMANI, J.C.A.: I had the benefit of reading in advance the judgment delivered by my learned brother, Nonyerem Okoronkwo, JCA.
My learned brother considered the germane issues in this appeal and came to the conclusion that the appeal lacks merit. Indeed, the central issue resolved at the trial Court was whether the Appellant qualifies as a member of the Alaigbo Ajaro Ruling House, whose turn it was to provide the Baale. The evidence adduced at the hearing, and which facts were not controverted, nor were they discredited, that the Appellant does not belong to the Alaigbo Ruling House. Indeed his installation as the Baale had been withdrawn on that ground. The Appellant was unable to rebut the evidence grounding the withdrawal of his installation as Baale.
For the above reason and the further reasons adumbrated in the lead judgment, I agree that the appeal lacks merit. It is hereby dismissed.

Appearances

A.A. Omoniyi, Esq.For Appellant

AND

Olusegun Emehin, Esq. with him, Ogunsola A. Babatunde Esq. for the 1st-4th Respondents.

Mrs. I.N. Ajide-Bello (PSC, Ogun State M.O.J.) with, I.A. Ogunkeye (S.C. Ogun State M.O.J.) for the 5th-6th Respondents.-For Respondents.

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