3PLR – AGBETOBA V. FAFUNWA

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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AGBETOBA

V.

FAFUNWA

IN THE SUPREME COURT OF NIGERIA

7TH JUNE, 1991

APPEAL NO. SC. 195/1990

3PLR/1991/21 (SC)

 

OTHER CITATIONS

BEFORE THEIR LORDSHIPS

OBASEKI, J.S.C.

KARIBI-WHYTE, J.S.C.

KAWU, J.S.C.

BELGORE, J.S.C.

OLATAWURA, J.S.C.

OMO, J.S.C.

 

BETWEEN

1. ALHAJI SULE AGBETOBA
2. CHRISTOPHER ONIKOYI (for themselves and on behalf of M. Onikoyi family otherwise known as Onikoyi Chieftaincy Family.)

AND

THE LAGOS STATE EXECUTIVE COUNCIL

AND

1. MADAM KEHINDE FAFUNWA
2. IBIKUNLE FAFUNWA ONIKOYI (for and on behalf of Fafunwa branch of Onikoyi family)
3. IDOWU OLADIPO FAFUNWA

AND

1. MILITARY GOVERNOR OF LAGOS STATE
2. A.G. & COMMISSIONER FOR JUSTICE, LAGOS STATE
3. ADAMO FAGBEMI ONIKOYI

 

REPRESENTATION

CHIEF SOBO SOWEMIMO, S.A.N. (with him, Chief B. O. Benson, S.A.N., Alhaji Abdul Razaq, S_A.N. And Ola Animashaun), – for the Appellants

M.O. BIOSHOGUN, DIRECTOR OF CIVIL LITIGATION, MINISTRY OF JUSTICE LAGOS STATE – for the 1st – 3rd respondents

W.A. OSENI (with him L.B. LAWAL-AKAKPO) – for the 4th respondent

 

MAIN ISSUES

GOVERNMENT AND ADMINISTRATIVE LAW:- Non-approval and non-recognition of the nomination of a chief under the Oba and Chiefs of Lagos Edict of 1975 – Effect of – Nomination of Chief antedating its registration – Propriety of – Selection – Nomination and appointment of chief in Lagos State – Procedure therefor – Declaration of Chieftaincy – Delegation of – Whether ‘delegatus non potest delegares’ applies.

CONSTITUTIONAL LAW:- Acts done under repealed laws preserved by an extant law -Legal status of – The Oba and Chiefs law of Lagos State No. 6 of 1981 duly passed by the House of Assembly but not containing Governor’s assent by printing error – Constitutionality of – Validity of – Correction of by corrigendum – How treated

CUSTOMARY LAW CHIEFTAINCY MATTERS:- Selection, nomination and appointment of a Chief under the Oba and Chiefs of Lagos State law No. 6 of 1981 – Validity of – Succession to vacant chieftaincy position in Lagos State – How done – Onikoyi chieftaincy declaration of 2717177 unapproved by the Executive Council vis-a-vis Onikoyi Chieftaincy declaration of 20111181 approved by the Executive of Lagos State – Validity of – Effect of. The Onikoyi Chieftaincy family – Composition of – Supreme Court decision in Afolabi & Ors. v. Governor of Oyo State & Ors. (1985) 16 NSCC pt.II 1151 as to vesting or accrual of right -Applicability of to an unapproved chieftaincy declaration

CUSTOMARY LAW CHIEFTAINCY MATTERS:- Oba and Chiefs of Lagos State Law No.6 of 1981 – Validity of – Right – Vesting or accrual of

CUSTOMARY LAW CHIEFTAINCY MATTERS:- Declaration of Chieftaincy – Failure of declaration of Chieftaincy to comply with the provisions of an enabling law – Effect of

PRACTICE AND PROCEDURE – APPEALS:- Arguing grounds of appeal as opposed to issues for determination – Propriety of – Concurrent findings of lower courts attitude of appellate court thereto – Settlement of record of appeal – Need to involve counsel.

PRACTICE AND PROCEDURE – APPEALS:- Issues for determination – How formulated – Need to avoid prolixity -Essence of – Types of.

INTERPRETATION OF STATUTES:- ‘Ut magis valeat quam pereat’ principle – Application of – Mischief rule -Application of

INTERPRETATION OF STATUTES:- Interpretation and Construction – The repealed Oba and Chiefs of Lagos State Edict No. 2 of 1975

WORDS AND PHRASES:- Corrigendum – Use of

 

 

MAIN JUDGEMENT

KARIBI-WHYTE, J.S.C. (Delivering the Lead Judgment):

Appellant, representing the Muti ruling house of the Onikoyi Chieftaincy family has again appealed to this court, challenging the dismissal by the Court of Appeal, Lagos Division of their appeal against the judgment of C.A. Johnson CJ, dated 23rd October, 1985.

 

In the High Court of Lagos State appellants as plaintiffs in two separates suits, ID/42M/81 and M/153/81 subsequently consolidated had asked for the following eleven reliefs from the defendants/respondents:

“(i)     A declaration that the declaration issued by the Lagos State Executive Council on the 27th day of July, 1977 and registered on the 1st August, 1977 under the Oba and Chiefs of Lagos Law 1975 is still effective and binding on the Lagos State Government;

(ii)     A declaration that the 3rd appellant was properly selected by the Muti Ruling House of the Onikoyi Chieftaincy Family to fill the vacant stool of Chief Onikoyi of Lagos.

(iii)    A declaration that the 3rd appellant’s appointment is entitled to be approved as the Chief Onikoyi of Lagos Elect by the Lagos State Executive Council pursuant to section 5(2) of the Oba and Chiefs of Lagos Law 1975.

(iv)    A declaration that the Lagos State Executive or any of the respondents have no right or power to amend the declaration of the 27th July, 1977 and registered on the 1st August, 1877;

(v)     That the Oba and Chiefs of Lagos State Law, 1981 is unconstitutional in that sections 6,7,8,9,10 11 and 12 thereof and all other sections relating to Customary law tantamount to the delegation of Legislative Powers to

the Chieftaincy Committee, Chiefs Council, the Commissioner responsible for Chieftaincy matters and the Governor, such delegation being contrary to the spirit and provisions of the Constitution of the Federal Republic of Nigeria, 1979;

(vi)    A declaration that the Oba and Chiefs of Lagos State Law, 1981 is unconstitutional in that it failed to satisfy the constitutional requirements for passing a law.

(vii)   That any declaration and particularly the Onikoyi Chieftaincy Declaration dated 20th November, 1981 made under the Oba and Chiefs of Lagos State Law, 1981 is null and void and of no effect;

(viii)   That the 3rd appellant having been selected by the Muti Ruling House under the declaration dated the 27th of July, 1977 is entitled to be considered and approved as the Chief Onikoyi of Lagos by the Lagos State Executive Council and/or the 1st respondent.

(ix)    That the selection of the 3rd appellant remains valid and unaffected by the purported Chieftaincy declaration dated the 20th day of November, 1981.

(x)     That the Chieftaincy declaration dated 20th November, 1981 and subsequent selection and approval of the 4th respondent (joined by the Order of Court) as Chief Onikoyi are premeditated, actuated and motivated by malice and as such the Declaration is null and void;

(xi)    That the selection and approval of appointment of the 4th respondent as Chief Onikoyi of Lagos by the 1st respondent is improper and irregular and of no effect.”

 

The claims which are inextricably tied to the question of the appointment and recognition of the 3rd plaintiff/appellant as the Chief Onikoyi of Lagos, and the claims of 1st-3rd plaintiff of the Muti Ruling House as the only Ruling House was originally against the 1st-3rd defendants/respondents. The 4th defendant/respondent, of the Dosunmu Ruling House claiming to have been approved as the Chief Onikoyi of Lagos by the Lagos State Executive Council applied and was joined as defendant in suit No. M/153/81. Thus the battle line between the two ruling houses who have been contesting the Chieftaincy since the death in 1966 of Edwin A. Bajulaiye the last Chief Onikoyi was drawn on the recognition by the Lagos State Government of the 4th defendant/respondent as the Chief Onikoyi of Lagos.

 

The background facts leading to this litigation is somewhat confused, although not really complicated. In brief it could be stated to be as follows:

Chief Onikoyi of Lagos is one of the very important land-owing Chiefs of Lagos. It has an ancestry going back to before the cession of Lagos to the British in 1861. But what concerns us here, are the competing claims by the plaintiffs/appellants that there is only one ruling house, i.e. the Muti Ruling House; as against the claim by the defendants who maintain that there are two ruling houses, i.e. the Dosunmu House being the second. This is the root cause of this long drawn acrimonious litigation.

 

The issue came into focus on the death in 1966 of Chief E. A. Bajulaiye, the incumbent Onikoyi. As a result of protracted disagreement and petitions to the Lagos State Government members of the Onikoyi Chieftaincy family, the Military Government of Lagos State in 1973 in a letter C.B. 217/25 dated 3/12/73 requested the Chieftaincy Committee of Lagos Island Local Government to prepare and submit in writing a Declaration in respect of the Onikoyi Chieftaincy family.

 

The effort by the Oba-in-Council, headed by Oba Oyekan II to settle the dispute ended in the inability of the two ruling houses to agree on a single declaration. Oba Oyekan II, then set up Committee of Idejo Chiefs to reconcile the differences in the position of the two ruling houses. Although the Idejo Chiefs met and agreed that there are two ruling houses, the Muti branch of the Onikoyi Chieftaincy family could not be reconciled to accept the idea.

 

The matter was reported to the Governor who referred the issue to a standing Tribunal of inquiry in 1976. The Tribunal found that there were two ruling houses in the Onikoyi Chieftaincy family namely Muti and Dosunmu.

 

In 1977 the State Executive council considered and rejected the report of the standing Tribunal. Following this, and the refusal of the Chieftaincy Committee of the Lagos Island Local Government to make a declaration that there was only one ruling house, the Executive Council in 1977 made the declaration in respect of the Onikoyi Chieftaincy. This is Exhibit 4 in these proceedings.

 

Following this declaration, plaintiffs/appellants submitted the name of the 3rd appellant to the Government for appointment as Chief Onikoyi. The nomination was not approved by the Executive Council as required by law.

 

In 1978 following several petitions complaining about the state of the Onikoyi Chieftaincy, the Military Governor directed the matter to be taken before the Executive Council, and that all actions towards filling the position be suspended.

 

This was the position when the civilian administration assumed office in 1979. The new administration reviewed the situation and rejected the declaration dated 27th July, 1977, i.e. Exhibit 4. On the other hand the Governor considered and accepted the recommendations of the Report of the Standing Tribunal of Inquiry which found that there were two ruling houses in the Onikoyi Chieftaincy family, namely the Muti and Dosunmu Ruling Houses. The Chieftaincy Committee of the Lagos Island Local Government was directed to make a new declaration in respect of the Onikoyi Chieftaincy.

 

The new declaration made by the Lagos Island Local Government Chieftaincy Committee was approved and registered in accordance with the provision of the Oba and Chiefs of Lagos State Law, 1981. These are Exhibits “9” and “9A” in these proceedings. The Dosunmu ruling house was invited to nominate the candidate to fill the vacant chieftaincy of Onikoyi of Ikoyi – see Exhibit 19 in this proceeding. Accordingly, the 4th defendant/respondent was presented as the new Chief Onikoyi of Lagos. His appointment was approved by the Lagos State Government on the 31st December, 1981. The appointment was published in the Gazette by Lagos State Legal Notice No.2 of 1982 Exhibit 34.

 

Although several legal arguments have been put forward in respect of the eleven reliefs claimed, the central issues in the litigation between the two ruling Houses of Muti and Dosunmu in the Onikoyi Chieftaincy family is whether Muti Ruling House is the only Ruling House, and that the Dosunmu Ruling House is not. And whether the 3rd appellant Idowu O. Fafunwa, or the 4th respondent, Adamo Fagbemi Onikoyi, should succeed to the vacant Onikoyi Chieftaincy. The issues relating to the validity of Declarations Exhibit 9 though crucial and relevant are merely to support the Chief contention.

 

The contention of the defendants is that there are two ruling houses, and the Dosunmu Ruling House is one of them. They also contend that the 1977 Onikoyi Chieftaincy Declaration i.e. Exhibit 4 was defective and not made by the prescribed authority. It was contended that the Oba and Chiefs of Lagos State Law, 1981 was passed into law on the 18th day of November, 1981 and received the assent of the Governor on the same date.

 

The trial judge, Johnson, J., dismissed the action, having rejected all the claims by the plaintiffs. In dismissing the claims the learned judge held that:

there were two Ruling Houses in the Onikoyi Chieftaincy family, namely, the Muti Ruling House and the Dosunmu Ruling House.

(ii)     3rd appellant was not properly selected by the Muti Ruling House and that having not complied with the provisions of the Oba and Chiefs of Lagos Edict No. 2 of 1975 S. 5(2), was not entitled to be approved as the Chief Onikoyi of Lagos Elect.

(iii)    It was held 3rd appellant had no vested right from the selection of appointment which should be preserved.

(iv)    He also held that there was power in the Lagos State Executive Council to amend the 1977 declaration. And that the Oba and Chiefs of Lagos State Law, 1981 was not unconstitutional.

 

The trial judge held that the selection and approval of the appointment of the 4th respondent was proper and regular.

 

Plaintiffs appealed to the Court of Appeal alleging 14 grounds of error against the judgment of the trial judge.

 

Learned counsel formulated ten issues from the grounds of appeal. These are:

1. Whether or not the Onikoyi Chieftaincy Declaration is still effective and binding on the Lagos State Government.
2. Whether or not silence by the Lagos State Executive Council could rightly be interpreted to mean refusal to approve the candidature and selection of the 3rd appellant in all the circumstances of this case.
3. Whether or not the 3rd appellant has a vested right which ought to be considered fully before any other nomination to fill the vacant stool and in view of the Supreme Court’s judgment in S. Afolabi & Ors. v Governor of Oyo State & Ors. (1985)2 N.W.L.R. 734, and S. 15 of the Obas and Chief Law.
4. Whether or not the Onikoyi Chieftaincy Declaration 1981 was valid and proper.
5. How many branches are in the Onikoyi Chieftaincy Family?
6. Whether or not the Dosunmu branch of the Onikoyi Chieftaincy family are Alabagbe or Omo-Oye?
7. Whether or not the 4th respondent is a blood member of the Onikoyi chieftaincy family and entitled to become a Chief of Onikoyi?
8. Whether or not the selection and approval of the 4th respondent as chief Onikoyi by the 1st respondent was proper and valid.
9. Whether or not (in view of the material contradictions in the evidence of the defence witnesses as to categories of membership in the Onikoyi Chieftaincy Family at various times) the court is entitled to come to the conclusion it did in its judgment being appealed against.
10. The Constitutionality of the Obas and Chiefs of Lagos State Law, 1981.

 

Learned counsel to the respondents adopted in their argument the issues formulated by learned counsel to the appellants. In the judgment dismissing the appeal, the court below held that Exhibit 4 purporting to be a Chieftaincy declaration, under the Chiefs’ Law in 1975 cannot be so regarded. The court gave two reasons. First, to be approved as a declaration, it must have been passed by a committee designated under the Oba and Chiefs Law 1975, and the declaration should have been so endorsed. This was not so in exhibit 4. Secondly, the declaration was purported to have been made under a Law which had nothing to do with the Oba and Chiefs Law of 1975 of Lagos State.

 

The court below held that the inference drawn by the learned judge from the refusal of the Lagos State Government to approve the nomination of the 3rd appellant was right.

 

On the question whether the 3rd appellant had by his selection acquired a vested right to preclude the nomination of any other person as Chief Onikoyi of Lagos, the Court of Appeal held that the judgment of this court in Afolabi & Ors. v Governor of Oyo State & Ors. (supra) relied upon by the appellant was not applicable. It was held that Exhibit 4 not being a valid declaration under the Oba and Chiefs Edicts, 1975 of Lagos State, 3rd appellant did not acquire any right which vested under the instrument which was in any event defective.

 

Referring to the constitutionality of the Oba and Chiefs of Lagos Law 1981 which is Exhibit 17, and Exhibits 9 and 9A made thereunder, the court below observed that the attack was not on the vires to make the law. The challenge was a to its validity on the ground of lack of assent on the face of the law. The court below held that the law was assented to having gone through the normal legislative procedure. It was also held that Exhibit 9A is also validly made under the Oba and Chiefs of Lagos Law, 1981. The court conceded that Exhibit 9 made under the repealed section 2(2) of the Oba and Chiefs of Lagos Edict, 1975 was invalid. The Judgment considered together issues 5,6,7,8 and 9 concerning the position of the 4th appellant relation to the issue of the Chief Onikoyi of Ikoyi which is the subject matter of this protracted litigation. It was held that Exhibit 4, the Declaration made under the new repealed Oba and Chiefs of Lagos Edict 1975, Exhibits 5 and 5(a) as to what constitutes branches of the Onikoyi of Ikoyi Chieftaincy family were irrelevant. The true customary law on the Onikoyi Chieftaincy family is as stated in Exhibit 9(a) duly made under the Oba and Chiefs of Lagos, Law 1981. The court held that the 4th respondent having on the evidence been found to be the grandson of Chief Dosunmu Onikoyi, a former Onikoyi of Lagos between 1860 – 1891, his selection and approval was proper and valid.

 

Appellants have filed five grounds of appeal against the judgment of the Court of Appeal. The grounds of appeal excluding their particulars are as follows:

(i)      The Court of Appeal (in the judgment of Hon. Justice A. Ademola J.C.A.), erred in law when it held as follows:

 

My view of the matter so far on issues 1 and 2 is that exhibit 4, though purporting to be a Chieftaincy Declaration under the Chiefs Law of 1975 of Lagos State cannot really be regarded as such. Before it can be approved, it must have been passed by a committee designated by the Obas and Chiefs 1975 Law to do so. There must be such endorsement on the declaration.

 

This is not so on Exhibit 4.”

(ii)     The Court of Appeal (in the judgment of Hon. Justice A. Ademola, J.C.A.), erred and misdirected themselves and or failed to properly direct themselves in law when they held as follows:

“Another defect as pointed out by Mr. Oseni is that the power of approval was made under the law which has nothing to do with the Obas and Chiefs Law of 1975 of Lagos State. The defects are so important in my view that they might have been contributory to the Government’s inaction in not giving approval to the purported nomination of the 3rd appellant.”

(iii)    The Court of Appeal (in the judgment of Hon. Justice A. Ademola, J.C.A.), erred in law when considering the distinction between this case and that of Afolabi & Ors. v. Governor of Oyo State (1985) 2 N.W.L.R. p. 734.

“I am of the view that the issue here is quite different from the issue in the S. Afolabi & Ors. case (supra)

“I cannot say that the Declaration earlier made under the Obas and Chiefs Law of Lagos State 1975 whereas, the Declaration earlier made in 1957 in the Afolabi’s case was conceded in that case to be still valid and subsisting side by side with the one made in 1982.” “Could it be said that Exhibit 4 had been validly made under the Obas and Chiefs Law of 1975?

and held:

“I have come to the conclusion that Exhibit 4 cannot be regarded as a valid Declaration under the then Obas and Chiefs Law of Lagos State 1975, in so far as the purported approval given to it was not made under the correct Law by the Executive Council of Lagos State.”

“It follows, therefore, in my view that no vested right can be acquired under the instrument which in my own view is defective in many forms and substances as pointed out in the argument and the brief of the respondents.”

(v)     The Court of Appeal erred in law (in the judgment of Hon. Justice E. O. I. Akpata,J.C.A.) when they held that

“In effect, the qualification of the 4th respondent and the method by which he was nominated was not altered by Exhibit 9A. His nomination therefore accords with the requirements of Exhibit 9A which was promulgated.”

 

Learned counsel filed briefs of argument which they adopted and relied upon in argument before us. Learned counsel to the appellant seems to have reproduced the ten issues for determination he formulated as arising from the grounds of appeal in the court below. On his part learned counsel to the 4th respondent has formulated 13 issues in reply to the arguments of learned counsel to the appellant. In addition, he has formulated four other issues which could be argued within the issues formulated by learned counsel to appellants and the separate issues formulated by learned counsel to the 1st – 3rd respondents. This is to say the least a fairly complex method of determining the issues at stake in the same appeal. It seems to me that although the grounds of appeal were before counsel, they have not been united in what the grounds are challenging. This attitude leaves the court in an invidious situation of settling for the parties from the grounds of appeal what the issues at stake are. It is both unfortunate and embarrassing for the court to find itself in such a situation.

 

This court has consistently and in several decisions advised counsel formulating issues for determination arising from grounds of appeal, to avoid prolixity and keep closely within the confines of the grounds of appeal relied upon. The ideal is to formulate an issue as encompassing more than one ground of appeal. It is not only undesirable, but also confusing to split a ground of appeal into more than one issues. The practice of splitting grounds of appeal is likely to confuse consideration of principal issues with subsidiary issues. Whereas the principal issues are essential for the determination of the case, the subsidiary Issues are formulations towards the elucidation of the principal issues. They cannot justifiably be regarded as issues for determination. In the instant case, the principal issues for determination relate to the validity of Exhibit 4, on which the 3rd appellant relies, for the vested right claimed, and the validity of exhibits 17, 9 and 9A, the documents on which 4th respondent relies which are based on the Oba and Chiefs of Lagos Law, 1981. The real issue is whether the 3rd appellant has been validly excluded from the race for the Onikoyi of Lagos Chieftaincy, as against whether the 4th respondent has been validly appointed the Chief Onikoyi of Lagos.

 

I consider the formulation of the issues for determination by learned counsel to the 1st – 3rd respondents more consonant with the grounds of appeal filed, and consistent with the principles for formulating issues. I will therefore adopt them in this judgment.

 

The issues for determination therefore are as follows:

Whether the Court of Appeal was right when it held that no vested right can be acquired under the instrument, that is, Onikoyi Chieftaincy Declaration Exhibit ‘4’ purported to have been made under the Chiefs Edict of Lagos 1975, which is defective in many forms and substance. Consequently, the claim of the 3rd appellant under Exhibit “4” cannot be sustained.

2. Whether the Court of Appeal was right in its view that the Supreme Court decision in the case of S. Afolabi & Ors. v. Governor of Oyo State & Ors. (1985) 2 N.W L.R. 734 could not be of assistance to the appellants.
3. Whether the Court of Appeal was right when it held that the Obas and Chiefs Law, 1981 Exhibit 17, went through the normal legislative process in its enactment undersection 94 of the 1979 Constitution of the Federation of Nigeria and that there is nothing unconstitutional in exhibits 9 and 9(A).
4. Whether the Court of Appeal was right when it held that the true Customary Law on the Onikoyi Chieftaincy Family is as stated in Exhibit 9(A) duly made under the Obas and Chiefs of Lagos State Law, 1981 and that various inquiries conducted by the Lagos State Government showed that the Chieftaincy Family consists of two branches namely, Muti and Dosunmu, and that the selection and approval of the 4th respondent as the Onikoyi, being the grandson of the Chief Dosunmu Onikoyi a former Onikoyi of Lagos between 1860 – 1891 is proper and valid.
5. Whether the Court of Appeal was right when it dismissed the appeal of the appellants and confirmed the judgment of Johnson C.J., of Lagos State.

 

I am satisfied the above issues have adequately taken into account all the grounds of appeal filed and argued.

 

Before I discuss the submissions of learned counsel in this appeal, I wish to touch on a preliminary point relating to some irregularity in the approach adopted by Chief Benson, S.A.N., in his brief of argument. After his formulation of issues for determination based on the grounds of appeal, learned Senior counsel reverted to argue the grounds of appeal from which the issues were formulated. The essence of formulating Issues is to sieve and distill the real and principal from the secondary or subsidiary Issues. The principal issues are those essential for the determination of the decision of the action litigated by the parties. The subsidiary Issues are generally of assistance in the determination of the principal Issues but are not essential for the decision of the case between the parties.

 

The grounds of appeal having been subsumed in the issues formulated, counsel should only argue the appeal on the issues as formulated. Arguing the issues as formulated is Invariably arguing the grounds of appeal from which they were formulated.

 

I shall first consider issues 1 and 2. These issues are concerned with the validity of Exhibit 4, and the question whether the 3rd. appellant had by his selection acquired a vested right to be appointed the Onikoyi of Lagos.

 

Exhibit “4” is the Onikoyi Declaration 1977 made under section 2(2) of the Oba and Chiefs of Lagos Edict 1975. I have already stated the findings of the court below.

 

Chief Benson, S.A.N., for the appellants submitted in his brief of argument and in oral expatiation of same before us that “Exhibit 4” the Declaration on which the 3rd appellant was selected was valid and the selection and nomination were validly made according to the Oba and Chiefs of Lagos Edict No. 3 of 1975.

 

Learned senior counsel argued that the Court of Appeal was wrong to hold that Exhibit 4, did not emanate from a committee under the Oba and Chiefs Law, and therefore was not an existing law. In his submission section 2(2) of the Oba and Chiefs of Lagos State (Amendment) Edict No. 5 of 1976 or Edict No. 18 is clear on the point that it is an existing law. The criticism of Exhibit 4′ and what the court below decided, was that the declaration was made by the Executive Council, and not as required by S.2(1) of the law, by a committee of Chiefs and approved by the Executive Council. In this case the Executive Council made the declaration after rejecting the Report of a Tribunal of Inquiry which it considered unfavourable. Learned counsel submitted that the declaration was valid. He argued that since the declaration was registered it was saved by section 43 of the Obas and Chiefs of Lagos Law No. 6 of 1981 even though 3rd appellant was not appointed to a recognised chieftaincy under the Obas and Chiefs Edicts 1975.

 

It was further submitted that section 44 of the Oba and Chiefs Law, 1981 was intended to save appointments under the Oba and Chiefs Edict, No. 2 of 1975. The court below was therefore wrong to have considered that the nomination and appointment of 3rd appellant to give him a vested right must have been made under the Oba and Chiefs Edict, 1975. The law intended two circumstances. There should be a registered declaration by section 43, and a nomination under it, and (2) an appointment. It was submitted that the existence of one without the other did not vitiate the declaration, and nomination of 3rd appellant under it. Both exist and are saved exclusively independent of each other by sections 43 and 44 of the Oba and Chiefs Law 1981.

 

Accordingly both the nomination of 3rd appellant founded on “Exhibit 4”, and “Exhibit 4 “ itself are valid.

 

Learned senior counsel then argued that in the circumstance it was erroneous for the court below to conclude that the silence of Government to act was indicative of the rejection of the nomination and therefore a refusal to appoint the 3rd appellant.

 

Finally, relying on Afolabi & Ors. v Governor of Oyo State & Ors. (supra), it was submitted that since the nomination of 3rd appellant remained expectant, no other nomination could be made until the 3rd appellant had been properly considered and decided upon. Accordingly the nomination and appointment of the 4th respondent by virtue of Exhibits 9 and 9A are illegal, null and void!

There seems to me a misunderstanding of the reasons given by the courts below for rejecting the declaration of Customary Law made under the Oba and Chiefs of Lagos Edict, 1975, i.e. Exhibit 4 and for holding that 3rd appellant had not by his selection by the Muti Ruling House acquired a vested right.

 

Learned counsel to the respondents, relying on section 5 of the Oba and Chiefs of Lagos State Edict, 1975, submitted that Exhibit 4 relied upon by appellants was defective having neither been made, nor been approved in compliance with the provisions of sections 1, 2(11), 5(2) & (3), 7 of the Oba and Chiefs of Lagos Edict, 1975. It was submitted that 3rd appellant’s claim to nomination and appointment did not go beyond the stage of selection by the Muti Ruling House. It was also submitted that appellants had relied on a non existing law for the validity of the declaration. The Edict No. 5 of 1976 which was cited as amending the Oba and Chiefs Law of Lagos State is a Forestry Law which could not have such effect. I think a better appreciation, a clearer picture and understanding of the issue raised can be heard from analysis of the statutory provision enabling the selection, nomination and appointment of Chiefs under the Oba and Chiefs of Lagos State Edict, 1975.

 

The appointment of a traditional Chief of Lagos is now governed by the Oba and Chiefs of Lagos State Law, No.6 of 1981. This law which came into force on the 18th November, 1981, by section 42 repealed the Chiefs Law, Cap. 25 Laws of Lagos State, 1973, Oba and Chiefs of Lagos Edict No. 2 of 1975, Oba and Chiefs of Lagos (Amendment) Edict No. 5 of 1976, (Chiefs Amendment) Edict No. 21 of 1978, Chief (Amendments) (No.2) Edict No. 22 of 1978, section 43 of this law preserved Declarations made or registered under the repealed enactments as if they have been made under this law. Section 44 preserved approvals to appointments to a recognised Chieftaincy under the provisions of any of the repealed enactments. The effect of these provisions is that valid Declarations made under the repealed laws, and approvals to nominations made under such repealed laws remain valid and effective as if they were made under the new law.

 

The 3rd appellant in this appeal claims to have been selected and nominated by virtue of the enabling provisions of the Oba and Chiefs of Lagos State Edict No. 2 of 1975. It is argued on his behalf that his interest in the appointment of Chief Onikoyi of Lagos has by virtue of sections 43 and 44 of the Oba and Chiefs of Lagos State Law No.6 of 1981 vested. Accordingly the appointment of the 4th respondent during the pendency of his vested interested was void. In fact it was also contended that the law under which the 4th respondent was appointed was null and void on the grounds of unconstitutionality.

 

Since the period within which 3rd appellants is concerned is covered by the Oba and Chiefs of Lagos Edict, No. 2 of 1975, the rights of the 3rd appellant can only be considered under that law. Section 7(1) of the Edict No. 2 of 1975 prescribes the procedure for filling a vacancy in a traditional Chieftaincy of Lagos. There is no dispute that the Onikoyi of Lagos is a traditional Chieftaincy and therefore there must be compliance with section 7 of the Edict No. 2 of 1975.

The section provides for the Head of the Chieftaincy family after being requested by the relevant Permanent Secretary to fill the vacancy, to summon a Meeting of the Senior members of the family representing all the ruling houses or a Special Committee for that purpose where there is one, with the Head of the Family as Chairman to consider and decide on the basis of rotation where there is more than one Ruling House, whose turn it is in the registered declaration to fill the vacancy. The Head of the Ruling House is required to submit in writing within three months to the Oba-in-Council, for ratification the name of the candidate who enjoys the support of a majority of the particular Ruling House. If the Ruling House so entitled failed to do so within the period prescribed, the Ruling House next entitled shall present a candidate within one month of such failure. The Oba-in Council shall ratify the selection within fifteen days. The candidate so selected shall thereafter be recommended by the Oba for approval and recognition by the Executive Council.

 

Until approval and recognition by the Executive Council, it seems to me obvious that the exercise of selection and nomination remains incomplete. This is because the Executive Council has a discretion to accept or reject the candidate recommended for appointment – S.9(1) of Edict No. 2 of 1975, or S.22 of Law No. 6 of 1981. The Executive Council may even reject a candidate who is in all respects qualified to be appointed and where the procedure for making the appointment have been complied with, if it is in the interest of peace, order and good government to do so. S. 9(3) (e) of Edict No. 2 of 1975, now S. 22(2)(e) Law No. 6 of 1981. The decision of the Executive Council is before October 1, 1979 final. Since October 1, 1979, the Governor’s decision under S. 22(2) of law No. 6 of 1981 is not final. It is important to observe that section 1 (1) of the Oba and Chiefs of Lagos Edict, 1975 provided for the principles to guide the selection and appointment of traditional chiefs. This is now section 6(1) of the Oba and Chiefs of Lagos Law No. 6 of 1981. The Customary law governing the selection, appointment and recognition of traditional chiefs shall be contained in the declaration made by a committee for the selection of traditional chiefs and registered with the Ministry of Local Government and Chieftaincy Affairs to be retained in safe custody (see 2(1) of Edict No. 2 of 1975, and S. 10(1) of Law No. 6 of 1981). The matters stated therein shall be deemed to be the customary law regulating the selection of a person to be the holder of the Chieftaincy to the exclusion of any customary usage or rule. – See S. 2(2) of Edict No. 2 of 1975, S. 10)1) of Law No. 6 of 1981.

 

The declaration shall contain (a) the number of the Ruling Houses, and their identity, (b) the order of rotation of the right to fill the vacancy (c) the method of selection by the Ruling House – See S. 1(1) of Edict No. 2 of 1975, and S. 6(1) Law of 1981.

 

Where the declaration made by the committee is obscure or insufficiently states the customary law, the Executive Council or now, the relevant Commissioner may refer the declaration back to the committee for further consideration -section 1(3). The Executive Council and now the Commissioner is empowered to make, vary or revoke the standing orders for the proceedings of the committee, the time within which the declaration may be made or the form in which it should be made. A declaration takes effect on registration.

 

The Executive Council, (and now the Governor) is not obliged to approve a registered declaration, or amended declaration. It may refuse to approve where it is not satisfied that the customary law stated is true, or the statements inaccurately or insufficiently declare the customary law regulating the selection of a Chief, or where it does not contain a sufficient description of the method of selection of the chieftaincy; or where it contains errors as to form or substance; or is otherwise faulty or objectionable. In any of these cases, the Executive Council and now the Governor may require the committee to amend the declaration in the way it may specify, or to make a new declaration as it may consider necessary. See S. 12 Law No. 6 of 1981. The principles guiding the selection of a traditional chief are enshrined in S. 5(1) of the Edict.

 

It is of crucial importance to mention that section 5(2)(3) provides as follows:

”(2)   A candidate whose selection has been consented to by the Oba in Council shall be recommended for recognition and approval by the Executive Council.

(3)     A candidate whose appointment as a Chief has been approved by the Executive Council shall be declared as “Chief-elect” and the approval shall constitute an authority for him to succeed to the Chieftaincy and to occupy and use the family Iga.”

 

After this by no means brief analysis of the law, I turn to the claim of the 3rd appellant that his appointment was based on a declaration made under section 1. Section 1(1) of Edict No. 2 f 1975, has constituted a Committee accordance with Schedule 1 to the Edict to make the declaration. Although “Exhibit 4” dated 27th July, 1977 and registered on the 1st August, 1977 which is the relevant declaration appears to have complied with the content of the customary law are required by S. 1(1); there is nothing to show that it was made by the Committee prescribed by the Edict.

 

Respondents have contended that the Oba and Chiefs of Lagos Edict No. 2 of 1975 (as amended by Edict No. 5 of 1976) under which the Executive Council purported to have approved the declaration did not exist. Accordingly the declaration was therefore invalid. I do not think the Oba and Chiefs of Lagos Edict No. 2 of 1975 has become invalid merely because of a false description of the amending Edict. There is no doubt that the description has not adversely affected the law. BY the application of the maxim fafsa demonstratio non nocet cum de corpore (persona) constat the law remains unaffected. The mere false description does not make an instrument inoperative.

 

However, the same Edict was amended by the Oba and Chiefs of Lagos (Amendment) Edict No. 18 of 1976. This Edict substituted a new section with respect to the registration of declarations for the original section. It came into force on the 1st February, 1975. This in my view was the amendment referred to. Learned counsel to the appellant has ignored the rule of construction ut magis valeat quam pereat. The construction contended for by appellants seems to me absurd and unmeritorious. I think the principle of construction adopted by this Court in “Falobi v. Falobi (1976) 1 N.M.L.R. at p. 177 is applicable. In that case, Fatayi Williams, J.S.C., dealing with a matter where an application was made under the Matrimonial Proceedings and Property Act, 1970 of England instead of under the Infants Law Cap. 49 Laws of Western Nigeria made this most potent and beneficial declaration. He said:

“In our view, if a relief or remedy is provided for by any written law (or by the common law or in equity for that matter), that relief seeking it, cannot be denied to the applicant simply because he has applied for it under the wrong law. To do so would be patently unjust.”

 

So, in this case will it be unjust if the only fault is the citation of wrong law, when in fact the correct law was available to the parties and to the court.

“This however, does not conclude the matter in favour of the appellants. For the registered declaration to be valid, it must comply strictly with the enabling provisions it is not valid merely by virtue of its being registered.

 

As I have already pointed out the declaration was not made by the Committee constituted under schedule 1 to the Edict. The Executive Council cannot therefore eo ipso approve such a Declaration. The situation is not one under S. 3(3) of Edict No. 2 of 1975, where the Executive Council is empowered to make a declaration by amending a registered declaration in accordance with the powers conferred on the Committee by this Edict. It was averred that the Declaration was made by the Executive Council itself when the committee refused to make a declaration of Customary law that there is only one Ruling House namely the Muti Ruling House. This averment has not been denied. There is clearly no section of the 1975 law enabling the Executive Council to make a declaration in such circumstance. I therefore agree with the submissions of learned counsel to the respondents that “Exhibit 4” is not valid.” On the above view, the issue of any right pursuant to the invalid declaration arising therefrom and then vesting in the 3rd appellant does not arise. See Adam v Duke (1927)8 N.L.R. 88.

 

The evidence before the trial judge was that the Executive Council had refused to approve the recommendation of the 3rd appellant. There was also “Exhibit 8” where it was clearly stated that the nomination of 3rd appellant was not approved and that he, the Governor was not going to act on the nomination of the 3rd appellant made under “Exhibit 4”. There is no doubt section 9(1) of the Edict No 2 of 1975 gives a very wide power to the Executive Council to approve or reject a candidate recommended for appointment as a traditional Chief. The Executive Council was acting within its legal powers in refusing to approve or reject a candidate recommended for appointment as a traditional Chief. The Executive Council was acting within its legal powers in refusing to approve the nomination of 3rd appellant. If the declaration were valid, 3rd appellant would have had rights accruing to him from the selection by the Muti Ruling House, only after the consent of the Oba-In-Council to his selection and the Executive Council shall have approved the recommendation to them by the Oba-in-Council for this recognition. It is only after this process that 3rd appellant would be declared by S.5(3) of the Edict as “Chief-elect”. The approval shall constitute an authority for him to succeed to the Chieftaincy.

 

For a right to be described as having vested, it must be more than mere expectation based on anticipation of continuance. It must have actually settled on the person enjoying the right but for the mere formality of conferment. It should not be contingent on the happening of any event. This position cannot be attained until the Executive Council gives its approval in accordance with S. 5(3) of the Edict No. 2 of 1975.

 

Learned counsel to the appellants has relied on Afolabi & Ors. v. Governor of Oyo State & Ors (supra) for the contention that he had accrued rights which have vested at the time the appointment of 4th respondent was made. I do not accept that interpretation of the ratio of that case.

 

I agree with the Court below and with the submission of learned counsel to the respondent that Afolabi & Ors. v. Governor of Oyo State & Ors. is not of any assistance. In the first place, whereas “Exhibit 4”, the declaration in the instant case is not a valid declaration, the declaration of 1957 relied upon in the Afolabi’s case was recognised by the parties as valid side by side with the one made in 1982.

 

In the instant case the view of the Court below that the repeal of the Edict No. 2 of 1975, by S.42 of the 1981 law affected the validity of the declaration is not as a matter of general principle correct. If the declaration was valid, before the repeal of the Edict No.2 of 1975, it would not have been rendered invalid by the repeal. The crucial difference in the two cases is that whereas there is no valid declaration in the instant case, there was a valid declaration in the Afolabi’s case. The two decisions are clearly distinguishable and. distinct. Afolabi’s case cannot therefore be relied upon in the instant case.

 

I now turn to the third issue, which is a challenge to the validity of the Oba and Chiefs of Lagos State Law No. 6 of 1981 on grounds of unconstitutionality. It was contended that the amendment “Exhibit 29” which sought to correct the error by stating the date it was assented to in Exhibit 29 tantamount to an amendment of the law without complying with section 94 of the Constitution 1979. The validity of the appointment of the 4th respondent as Chief Onikoyi rests entirely on this issue.

 

Learned counsel to the appellants has contended that the Oba and Chiefs of Lagos State Law No. 6 of 1981 “Exhibit 17” is unconstitutional having not received the Governor’s assent. Accordingly the appointment of the 4th respondent is invalid. He goes further to submit that the declaration of customary law dated 13/10/82 Exhibit 9 under which the 4th respondent was appointed having been made by virtue of the void law, without seeking a fresh nomination and a fresh approval the appointment itself relying on the first void law is void. It is not saved by the subsequent declaration Exhibit 9A” made on the 29th November, 1982. The position, it was submitted, is as if no nomination had been made. Learned counsel pointed out that the error could have been cured by calling for a fresh nomination under “Exhibit 9A” and another approval after the nomination. The contention of learned counsel is that “Exhibit 9A” purports to validate the nomination of the 4th respondent without specific reference in the declaration.

 

Concisely stated, the contention of appellants is that the enabling legislation, that is, the Oba and Chiefs of Lagos State Law No. 6 of 1981 having not received the assent of the Governor is unconstitutional and void. Accordingly the declaration made under the law are themselves void.

 

The Contention of the appellant that publication of a corrigenda about the assent to a legislation is quite ingenious. But the argument seems to have ignored the substance for the form. There has been no dispute that the law went through all the three stages in the legislative process in compliance with section 94 of the Constitution 1979. The corrigendum which appeared in “Exhibit 29” was intended for the correction of an obvious Printer’s error. Nothing was added or removed from the text of the legislation. In short it is not in any sense different law and therefore an amendment to the law.

 

The corrigendum is a normal practice in publishing legislation for the correction of ineffectual printing errors which do not affect the substance or form of the legislation itself. This is one such form and cannot be correctly regarded as an amendment.

 

The principal being valid, the declaration made under it in compliance with the enabling provisions is also valid.

 

I hold Exhibits 9 and 9A” are validly made.

 

It should be borne in mind that “Exhibit 9” the first declaration, was made under section 2(2) of the Oba and Chiefs of Lagos Edict No. 2 of 1975; repealed by section 42 of the Oba and Chiefs of Lagos State No. 6 of 1981 which came into force on the 18th November, 1981. As long as the declaration was made under a valid exercise of enabling powers, the repeal of the enabling law did not affect the validity of anything duly done underthe enactment. See Ogamioba.v. Oghene (1961) 1 All N.L.R. 59, Queen v. Tuke (1961) 1 All N.L.R. 258, S.6(1) (b) of the Interpretation Act, 1964. On the 13th October, 1981 when “Exhibit 9” was made, the Oba and Chiefs of Lagos Edict No.2 of 1975 was still in force. For the avoidance of doubt I have to point out that on a careful reading of Exhibit 9, I find no erroneous statement which has affected the substance of the declaration. The recital of the approval by the Executive Council by a consequential amendment under the Constitution should read the Governor. I have already stated that the false description that the amendment was made under a non-existent law did not affect the operation of the law. The question of the consent of the Ruling House was not an issue.

 

It is pertinent to observe that “Exhibit 9A” was made on the 20th November, 1981, two days after the enabling law, the Oba and Chiefs of Lagos Law No. 6 of 1981, came into force. The validity of “Exhibit 9A” under which declaration the 4th respondent was selected and nominated for the position of the Chief Onikoyi of Lagos is ‘therefore not in doubt. Stricto sensu, there is no amendment in Exhibit 9A as to the number, identity of the Ruling Houses, the persons being proposed by the Ruling House entitled to fill the vacancy and the method of nomination by the Ruling House entitled to fill the vacancy and the method of nomination by the Ruling House. The Dosunmu Ruling House had since 18th April, 1979 selected the 4th respondent as the candidate to fill the vacancy.

 

It is also significant to observe that the 4th respondent was presented to the Oba-in-Council on the 30th December, 1981 after the coming into force on the 18th November, 1981, of he enabling law. See Exhibits 27, 28.

 

Appellants have contended that Exhibit 9 being the exercise of a delegated power is invalid. This is based on the principle that a delegated power cannot be delegated delegates non potest delegare. The contention seems to me a misapprehension of the purpose of the exercise and a misunderstanding of the relevant provisions of section 6(1) (2), 10, 11 of the Oba and Chiefs Law, 1981. The enabling provisions are for a declaration of the governing customary law by the Chieftaincy Committee. It is accepted that customary law is a question of fact to be proved in each case. A registered declaration of the fact will obviate the necessity of proof on each occasion. It is not an exercise of legislative powers.

 

Now the Oba and Chiefs of Lagos Law No. 6 of 1981 has made identical provisions with respect to the law relating to the selection, nomination and appointment of Chiefs as with the repealed law. Hence the declaration Exhibit 9A made under section 6 of the present law was in compliance registered on the 20th November, 1981.

 

Chief Benson for the appellant has argued that the nomination of the 4th respondent ante dating the registration of the declaration renders the nomination invalid. I do not think so. In construction of statutes it has always been of assistance to keep constantly in mind the purpose of the provision and the mischief sought to prevent -See I.G.R. v. Marke (1975) 2 FS.C.5. Accordingly the words should be construed to give effect to such purposes. See Mobil v. FBIR (1977) 3 S.C. 53.A reading of the provisions of section 6 shows that a declaration is not an enabling instrument. It merely gives the guide lines which must be a adhered to by those nominating candidates. It has been provided in the interest of clarity and uniformity. It is true a declaration comes into effect on registration -See S 10(2). It is deemed the customary law regulating the selection of a person to be the holder of a recognised chieftaincy to the exclusion of any other customary law or usage. I do not understand the provision to mean, and it should not be taken to mean that a nomination made before the registration of the declaration which in all respects conforms with the subsequent declaration will be invalid. There is no provision that nomination cannot be made before registration of the declaration. Such construction cannot be even by Implication from the words of the section. The exercise of nomination is different from the House, the declaration of customary law is made by the Chieftaincy Committee of the Local Government Council.

 

Exhibit 9A is valid and the nomination of the 4th respondent is not Invalid merely because it was made before the registration of the declaration. The only disqualifying feature of a nomination is where it can be shown that there was non-compliance with the registered declaration and accordingly the customary law governing the selection and appointment of the Chieftaincy. This is because the nomination does not derive its validity from the declaration but the customary law so declared. Since it has not in the instant case been shown that the nomination did not conform with any of the prescribed conditions and the customary law in declaration, the nomination remains valid.

 

I now turn to the fourth issue whether Exhibit 9 A is a reflection of the true customary law on the Onikoyi Chieftaincy as can be gathered from the various inquires conducted by the Lagos State Government.

 

Now the crux of the contention between the two branches of the Onikoyi Chieftaincy is the argument whether there is only one ruling House as claimed by the Muti Ruling House, or two, as claimed by the Dosunmu Ruling House. Several Exhibits tendered in this case clearly disclose that the predominant view is in support of the existence of two Ruling Houses of the Onikoyi Chieftaincy Family. These are the Muti and the Dosunmu. For instance Exhibit 2, Report of the Standing Tribunal of Inquiry into Onikoyi Chieftaincy referred to as the Hotonu Tribunal. The declaration of the White Cap. Chiefs Exhibit 37-The Governors Speech, delivered on 30/9/81, Exhibit 8; there were also Exhibits 18, 19, and 20, 25, 29 all these declared the existence of two ruling houses.

 

It was therefore right for the declaration in Exhibit 9 to state that there are two ruling houses consistent with the preponderance of evidence on the issue. These overwhelming supports for the existence of two ruling houses backed by the historical fact of Dosunmu Onikoyi who reigned between 1860-1891 strengthened the resolve of the Lagos State Government to come out unequivocally in support. There was uncontradicted evidence that 4th respondent is the grandson of Dosunmu Onikoyi and therefore traces his descent and claim to the Onikoyi Chieftaincy by blood. There was also evidence which was undisputed that the Muti branch has enjoyed an uninterrupted ascension to the Onikoyi Chieftaincy since after the death of Dosunmu Onikoyi in 1891.

 

The Dosunmu branch has not had the chance to present a candidate. Dosunmu Onikoyi through whom the branch derives their claim has been the only one. The last Onikoyi was Edwin Bajulaiye, of the Muti branch whose death in 1966 has given rise to the dispute and consequent litigation. It has been agreed by all those who support the two ruling houses rule that it is now the turn of the Dosunmu House.

 

Pursuant to the Oba and Chiefs of Lagos Law No. 6 of 1981, the appropriate authority invited the Dosunmu Ruling House to nominate a candidate for succession to the vacant Onikoyi Chieftaincy – See “Exhibit 19”. The selection of the 4th respondent was made by the Dosunmu Ruling House – See Exhibit 28A. The 4th respondent was accordingly nominated, and approved by the Governor of Lagos State as Onikoyi of Lagos under sections 22(1) and 22(3) of Law No. 6 of 1981, with effect from 13th December, 1981. See Exhibit 20, Exhibit 28 and Lagos State Legal Notice No.2 of 1982 of 21st January, 1982. 4th respondent therefore satisfied every requirement prescribed by law for ascension to the Onikoyi of Lagos Chieftaincy, See sections 17(1)(e)(i), 18 of Law No. 6 of 1981. In the circumstance it is unfair to accuse the Lagos State Government of partisanship in the dispute, or to allege malice because of the speed with which the nomination by the Dosunmu Ruling House and the approval of 4th respondent as the Chief Onikoyi of Lagos by the Governor was conducted. The Lagos State Government acted within its legal rights. Malice cannot legitimately be inferred from the fact that the 3rd respondent lost in the ensuing legal encounter. See Mayor, etc of Bradford Corporation v. Pickles (1895) A.C. 587. The last issue for determination is the general issue whether the Court of Appeal was right in dismissing the appeal of the appellants and affirming the decision of the learned trial judge?

 

I have discussed both the law and the facts involved in this appeal and argued before both courts below. The Court of Appeal has affirmed all the findings of fact made by the trial judge. Learned counsel to the appellants Chief Benson, S.A.N., has not adduced any reasons why the Court of Appeal ought not to have affirmed all or any of them, or why this court should not also agree with the court below. In the circumstances this court accepts the findings of fact being the concurrent findings of two lower courts.

 

I accept the construction of the law that “Exhibit 4 “ on which the 3rd appellant relies is invalid. It therefore was not in accordance with section 1(1) of Edict No.2 of 1975 and could not have been the customary law of the Onikoyi Chieftaincy. Furthermore, since 3rd appellant’s nomination was not approved by the Governor, he acquired no right by the nomination which could have vested in him if he was validly nominated and proved by the Executive Council. Accordingly he had no rights which survived the repeal of the Oba and Chiefs of Lagos Edict No. 2 of 1975 and which could be recognised by sections 43, 44 of the Oba and Chiefs of Lagos Law No. 6 of 1981.

 

On the other hand the 4th respondent was validly nominated by the Dosunmu Ruling House whose turn it was to present a candidate for the Onikoyi Chieftaincy. The Oba and Chiefs of Lagos Law No. 6 of 1981, was validly made and the declaration of Customary law made there-under was valid. The respondent having satisfied all the prescribed conditions for ascension to the Onikoyi Chieftaincy the trial judge was right in dismissing the claims of the plaintiffs. The Court of Appeal was right in affirming the decision of the trial judge.

 

The appeal of the appellants fail on all the grounds of appeal filed and argued. The appeal is accordingly dismissed. Appellants shall pay M500 as costs to each set of respondents.

 

 

OBASEKI, J.S.C.

I have had the advantage of reading in draft the judgment just delivered by my learned brother, Karibi- Whyte, J.S.C. and I find his opinions on all the issues raised for determination in this appeal accord with mine. I therefore adopt them as my own.

 

The appeal fails and I hereby dismiss it. The appellants shall pay each set of respondents costs fixed at N500.00.

 

 

KAWU, J.S.C.

I have had the advantage of reading in draft the lead judgment of my learned brother, Karibi-Whyte, J.S.C., which has just been delivered. I am in complete agreement with his reasoning. I also agree with his conclusion that the appeal should be dismissed. On the evidence adduced at the trial I am satisfied that the nomination of the 3rd appellant was never approved by the Executive Council as required under the Oba and Chiefs of Lagos Edict No. 2 of 1975. Also Exhibit 4 upon which the 3rd appellant heavily relied, was not valid. On the other hand there was overwhelming evidence that the nomination of the 4th respondent by the Dosunmu Chieftaincy family was validly approved by the Government. The appellants’ appeal fails in its entirety and it is accordingly dismissed. The appellants shall pay N500.00 costs to each set of respondents.

 

 

BELGORE, J.S.C.

The registration of declaration is an administrative matter and because a nomination is made prior to it, will not vitiate the nomination. Exhibit 9A is a valid nomination. Whether Exhibit 9A is in accord with customary law is another matter, and this can only be deduced from the facts of the case. From all inquiries conducted over the years, the contentions of both parties have been placed before the trial court and upon facts found by it, the Court of Appeal was not ready to interfere. In the absence of any new circumstance and without proof of miscarriage of justice or that the findings of fact. I have therefore no reasons to interfere with the decision of the Court of Appeal which affirmed trial court’s decision.

 

 

WALI, J.S.C.

I am privileged to have read in advance the lead Judgment of my learned brother, Karibi-Whyte, J.S.C. I agree with the reasoning and conclusion contained therein that this appeal lacks merit, so it must therefore fail. The learned trial Chief Judge having carefully and meticulously considered the evidence adduced before him made among other findings, the following:

“1      That the Onikoyi Chieftaincy is made up of two Ruling Houses:

(a)     Muti Ruling House, and

(b)     Dosunmu Ruling House.

2. That the 4th respondent through his grandfather the late Chief Dosunmu Onikoyi who rules as Onikoyi of Lagos from 1860-1891 is a blood member of the Onikoyi Chieftaincy Family of Lagos.
3. That the Oba and Chiefs of Lagos Law 1981 was properly passed into Law in accordance with section 94 of the 1979 Constitution and validly assented to by the Governor of Lagos State.
4. That the succession to the Onikoyi Chieftaincy should be by rotation between the two Ruling Houses.
5. That the last Onikoyi being from Muti Ruling House, it is now the turn of Dosunmu Ruling House to nominate and present the next Onikoyi for approval and appointment by the authorities concerned in accordance with 1981 Oba and Chiefs of Lagos Law and the Declaration thereunder.
6. That the 4th respondent was validly nominated and presented to Lagos State Executive Council for approval and appointment as the new Chief Onikoyi of Lagos.
7. That Exhibit 4 being an invalid declaration having been made under a non-existing law, the 3rd appellant acquired no vested right by his nomination under the invalid Exhibit 4 Consequent upon that the then Lagos State Executive Council (1977) refused to approve his nomination as the Onikoyi.

 

The Muti Ruling House could not validly challenge the nomination and appointment of the 4th respondent as the new Onikoyi who is from the Dosunmu Ruling House and whose torn it is to fill the vacant post of Onikoyi Chieftaincy. The appellants are nothing more than busy bodies in what does not affect them. The Dosunmu Ruling House has not complained against the appointment of the 4th respondent; or any irregularity in his nomination as the succeeding Onikoyi. it would therefore be in my view a mere duplication of the exercise to call for a fresh nomination from the same Dosunmu Ruling House under Exhibit 9A which was validly made to regularise Exhibit 9″.

 

These findings which were considered and affirmed by the Court of Appeal are unimpeachable and the two judgments i.e. that of the trial court and the Court of Appeal, are impeccable.

 

The appeal lacks merit and it is dismissed. The judgment and orders of the trial court as affirmed by the Court of Appeal, are hereby further confirmed.

 

I subscribe to the incidental orders made in the lead judgment of my learned brother, Karibi-Whyte, J.S.C., including that of costs.

 

 

OLATAWURA, J.S.C.

I had the advantage of reading in draft the judgment of my learned brother, Karibi-W hyte, J.S.C., just delivered. I agree that the appeal should be dismissed.

 

The facts have been succinctly stated; so also the issues stated by the parties. I will only refer to some of the issues which, to my mind, if established would have affected the fortune of the case. The three main issues in the case of the appellants are:

(1)     The validity of the 1977 Declaration affecting the rights of the 3rd appellant.

(2)     Exhibit 4 i.e. Declaration made under Customary Law-Recognition/Selection to the Onikoyi Chieftaincy.

(3)     The validity of Law No.6 of 1981 of Lagos State.

(4)     Exhibits 9A Declaration of the Customary Law Regulation: Selection to the Onikoyi Chieftaincy under which the 4th respondent was approved.

 

It was established before the trial court that there are two branches of ruing houses of One Onikoyi Chieftaincy family. These are Muti and Dosunmu. In 1977 there was the Chieftaincy Declaration which was subsequently found defective. This 1977 declaration is one of the causes of action and the validity of which the appellants asked the court to confirm. As a result of the incorrectness or deficiency in the declaration, a Tribunal of Inquiry was set up. This led to another declaration and the Lagos State Law No. 6 of 1981 i.e. the Oba and Chiefs Law.

 

There are certain findings made by the trial judge. These findings appear to me crucial to the determination of this appeal. They are:

(i)      That there are only two categories of membership in the family: Omo Oye and Arotas. The story of another category known as Alabagbes (i.e. strangers) was rejected for lack of proof.

(ii)     The 4th defendant/respondent is a descendant of Chief Dosunmu Onikoyi (1860 – 1891) and is an Omo Oye.

(iii)    Muti and Dosunmu are the two ruling houses

(iv)    That the Executive Council has acted within its power under section 9(1) of the 1975 Law to reject the candidature of the 3rd appellant.

(v)     That section 12 of Law 6/1981 Obas and Chiefs Law provides for the amendment of the 1977/Declaration.

(vi)    That the final chieftaincy declaration is as stated in Exhibit 9A by virtue of section 12(2) of the 1981 Law.

(vii)   That motive for the amendment became irrelevant once the amendment was legally made.

(ix)    That the claim of the appellant is defeasible by operation of law i.e. section 9(1) of the 1975 Law.

 

There is no doubt that some of those findings are covered by the issues for determination as settled by the appellants’ learned counsel. These findings are covered by issues 1, 2, 3, 6, 8, 10, 11 and 13. I need not repeat them here having been set out in the judgment of my learned brother, Karibi-Whyte, J.S.C. In their consideration of those issues the Court of Appeal meticulously reviewed these findings. One of the conclusions reached by the lower court and which knocked the bottom out of the 3rd appellant’s case is as stated by Ademola, J.C.A.-

“My view of the matter so far on issues 1 and 2 is that exhibit 4, though purporting to be a Chieftaincy Declaration under the Chiefs Law in 1975 of Lagos State cannot really be regarded as such. Before it can be approved, it must have been passed by a committee designated under the Oba and Chiefs 1975 Law to do so. There must be such endorsement on the declaration. This is not so on exhibit 4.

 

Another defect as pointed out by Mr. Oseni is that, the power of approval was made under the Law which has nothing to do with the Obas and Chief Law of 1975 of Lagos State. These defects are so important in my view that they might have been contributory to the Government-in-action in not giving approval to the purported nomination of the 3rd appellant.

 

If the learned judge drew the inference from the letters written to the parties as mentioned in the submission of learned counsel for the respondents that i[ refused to approve the candidature and selection of 3rd appellant, it is my view that such inference was rightly drawn and could be rightly interpreted also that the Government was not bound to act for reasons best known to it on exhibit

 

And to leave no one in doubt about the position of the 3rd appellant the learned justice said further:

“It is quite patent and beyond any argument that the 3rd appellant had not been recognised under the 1975 Law as the various exhibits already mentioned i.e. letters to him and to the family on the chieftaincy, have abundantly shown that the Government was not going to act under Exhibit 4 to make any appointment.

……….

The respondents have pointed out the defects in exhibit 4 in the argument I have already considered earlier on and I have come to the conclusion that exhibit 4 cannot be regarded as a valid Declaration under the then Oba and Chiefs Law of Lagos State of 1975, in so far as the purported approval given to it was not under the correct law by the Executive Council of Lagos State.”

 

Chief Benson, S.A. N., has submitted in his written brief and in oral submission that there was in existence a law under which approval was given, though wrongly cited, that the court should have taken judicial notice of the proper law which is Edict No. 18 i.e. Laws of Lagos State of 1976. What appears to me fundamental to the 3rd appellant’s case is whether his nomination was in conformity with the relevant law i.e. Obas and Chiefs of Lagos Edict 1975. From the facts, the case of the 3rd appellant was caught by section 5(2) (3) of the 1975 Edict. The combined effects of these two subsections is that legally the 3rd appellant’s case must fail for non compliance with these subsections. What then is left for the Executive counsel to do, is to act under S.9(1) of the Edict which gives the Executive Council power to reject the candidate recommended.

 

It appears to me there is a misapprehension of the facts and law relating to the selection of the 3rd appellant who relied heavily on the 1977 Declaration. If the provision of section 9(5) of the Obas and Chief Law No. 6 of 1981 has not been ignored, it ought to be seen that the case built around the 1977 declaration is manifestly unsupportable by virtue of section 9(5) of Law No. 6 of 1981 of the Lagos State. The learned trial judge was alive to the case of the 3rd appellant when in his judgment he said:

“It is now not in dispute that the appointment of the 3rd plaintiff was not approved under the 1975 repealed Law. If it had been approved then his position would have been saved by the provisions 44 of the 1981 Law. If that were saved then there would have existed in him vested right to approval under the new law in defeat of the claim of the 4th defendant. But as now established the non-approval of the 3rd plaintiff by the Executive Council robbed him of the title “Chief Elect”. The refusal to approve by the Executive Council in exercise of its discretion put paid to whatever right the selection and appointment of the 3rd plaintiff gave to him. That right being no more than that of being eligible to be considered for approval. That right terminated with the refusal to approve.”

 

I agree with this conclusion which is based on the facts and the law. The 3rd appellant had no vested right to protect. Chief Benson, S.A.N., in his consideration and interpretation of sections 43 and 44 of Obas and Chiefs Law No. 6 of 1981 contended that the lower court confused the provisions of sections 43 and 44 of Law No. 6 of 1981 and submitted that “Exhibit 4 was proper, valid and subsisting and so was the nomination of 3rd appellant thereunder” I agree with the 1-3 respondents submission in their brief that the failure of the 3rd appellant to conform with the 1975 Chiefs Edict was fatal to his case; I agree with Mr. Oseni in his brief that with effect from the death of Chief Edwin AyObajulaiye in 1966 the 4th appellant’s right accrued. It is worth repeating to show that the 3rd appellant cannot validly be considered to be in the contest since he rested his claim on Exhibit 4 which was defective in law.

 

With regard to Exhibits 9 and 9A, Exhibit 9A was meant to correct Exhibit 9. Although the correction was, according to Chief Benson, S.A.N., based on malice, prejudice and favouritism taking into account the time it took to correct the error, I can see no such evidence on the printed record. There is also the attack on the 1981 Law. It is alleged that it was unconstitutional. This challenge was based on non-assent according to section 94 of the 1979 Constitution. I do not think it was the case of the appellant that the Bill was never before the Lagos State House of Assembly. It was a subsequent assent that is being queried. What the Governor did was just to correct a mere administrative error which had nothing to do with the passage of the bill as laid down under section 94 of the 1979 Constitution.

 

I must commend the efforts of Chief Benson., S.A.N.. for his brilliant presentation. He had a bad case. The invalidity of Exhibit 4 is an insurmountable difficulty. It is the foundation of the appeal. Having failed in his bid to put life into this bad aspect of the case, the appeal is bound to fail and it fails.

 

I now come to a procedural matter which has always been glossed over by counsel: the settlement of the record of appeal. It is a rule of court designed to enable appellate courts deal with matters which are relevant to the appeal expeditiously. My experience has shown that settlements of record are left to clerks, forgetting that only those who conducted the case during trial and bearing in mind the judgment of the trial court will know the relevant papers that should embodied in the record of appeal. Since the rules of court allow for amendment of pleadings etc., when a statement of claim or defence has been amended more than three times as in this appeal, it is wrong to incorporate all the statements of claim in the record of appeal. The only relevant one for the purpose of appeal will be the last amended statement of claim or statement of defence. See Order 3 rules 8 and 9 of the Court of Appeal Rules, 1981 1 will draw particular attention to Order 3 rule 9(2) (3):-

“(2)   The Registrar of the court below, as well as the parties, shall endeavour to exclude from the record all documents (more particularly such as are merely formal) that are not relevant to the subject matter of the appeal and generally to reduce the bulk of the record as far as practicable, taking special care to avoid duplications of documents and unnecessary repetition of headings and other merely formal parts of documents; but the documents omitted to be copied shall be enumerated in a list at the end of the Record. Where part or parts only of any lengthy document are directly relevant to the subject matter of the appeal, it shall be permissible to omit to copy such parts of the document as are neither directly relevant to the subject-matter of the appeal nor necessary for the proper understanding of the pan or parts that are so relevant.

 

If the Registrar of the court below or any part objects to the inclusion of a document on the ground that it is unnecessary or irrelevant and the other party nevertheless insists upon its being included, the document shall be included and the record shall with a view to the subsequent adjustment of the costs of and incidental to the inclusion of such document, indicate in the index of papers or otherwise the fact that, and the party by whom, the inclusion of the document was objected to “

 

In this appeal before us, applications for subpoena are totally irrelevant to the determination of this appeal. Similarly an application for an order of Mandamus to approve the recognition of Mr. Fafunwa (pages 2-280 of Vol. II). What has this application got with the appeal? At the end of the compilation of the records is N889.00. The parties contribute to the unnecessary cost for litigation as manifestly shown in this appeal.

 

Appellate courts are busy, consequently only relevant papers and documents should be embodied in the record. Settlement of record must not be left to clerks whose judgment about relevant documents cannot be relied upon. Pages 462-464 of Vol. II of the records of appeal show a complete misunderstanding by the Registrar of the Lagos High Court of what is relevant in the compilation of the record of appeal. Counsel must be invited to settle record of appeal.

 

I will dismiss the appeal. I abide by the order of costs made in the lead judgment of my learned brother, Karibi-Whyte, J.S.C.

 

 

UCHE OMO, J.S.C.

I have had the privilege of reading in draft the lead judgment of my learned brother, Karibi-Whyte, J.S.C., just delivered, with which I find myself in complete agreement.

 

The plethora of “issues for determination” set out by the parties in their briefs of arguments in the final analysis resolve themselves into a consideration of the relative merits of Exhibit 4, the 1977 Onikoyi Chieftaincy Declaration under which the 3rd appellant claims to have been validly nominated and therefore entitled to become the Chief Onikoyi of Lagos, and Exhibits 9 and 9A, the 1981 Declaration (s) on the basis of which the 4th appellant was nominated, approved and appointed the Chief Onikoyi of Lagos.

 

3rd appellant’s reliance on Exhibit 4 is entirely misplaced. It is a document invalid from its source. It came into being contrary to the provisions of Edict No.2 of 1975 which appellants’ counsel submitted it should be deemed to have been made under instead of the non-existent Oba and Chiefs of Lagos Edict No.5 of 1976 under which it was wrongly stated to have been made. Instead of being made by a Committee of Chiefs, as prescribed by the Edict, it was made by the Executive Council which proceeded to register it. In addition to its invalidity the Executive Council did not go further to approve the nomination of and then appoint, 3rd respondent under it. Whatever right the 3rd appellant would have acquired thereunder (were it validly made) would at best have been inchoate.

 

Exhibit 9, on the other hand, was validly made under the Oba and Chiefs of Lagos Law No. 6 of 1981. The comparatively minor correction made by Exhibit 9A does not in any way invalidate either Exhibit 9 and/or the nomination made thereunder.

 

For these and other reasons which have been fully considered by my learned brother in his lead judgment, I share the view that the 4th defendant was validly nominated, approved and appointed Chief Onikoyi of Lagos. I agree that all the grounds of appeal argued fail and this appeal must therefore be and is hereby dismissed with N500.00 costs to each set of respondents.

 

Appeal dismissed.