3PLR – ADESINA V. ADEKEYE

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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ADESINA

V.

ADEKEYE

IN THE COURT OF APPEAL

[IBADAN DIVISION]

CA/1/75/99

3PLR/2003/10 (CA)

 

OTHER CITATIONS

BEFORE THEIR LORDSHIPS

SUNDAY AKINOLA AKINTAN, JCA. (Presided)

FRANCIS FEDODE TABAI, JCA. (Delivered the leading judgment)

OLUFUNLOLA OYELOLA ADEKEYE, JCA.

 

BETWEEN

1. PRINCE SUNMONU ADESINA (For himself and on behalf of Olarinoye Lineage, Oyan)
2. CHIEF MICHAEL OYEWOLE

AND

1. MR. KILANI ADEKEYE
2. THE GOVERNOR OF OSUN STATE
3. ATTORNEY GENERAL, OSUN STATE
4. ODO-OTIN LOCAL GOVERNMENT, OKUKU
5. CHIEF Y.S. SABEREDOWO
6. CHIEF JOHN AYODELE
7. CHIEF TIAMIYU ADEKANYE

 

REPRESENTATION

Chief A. Adejumo, SAN. with Mr. D. J. Rufai – For plaintiffs/appellants.

1. Esan, ESQ., – For 1st, 5th – 7th defendants/respondents.

Mr. A. A. Aderibigbe, A. D. C. L. Osun State – For 2nd and 3rd defendants/respondents.

Counsel for 4th defendant/respondent absent.

 

MAIN ISSUES

CUSTOMARY LAW – CHIEFTAINCY MATTERS – Section 15(i)(f) (ii) of Chiefs Law of Oyo State – where there is a lacuna in the chieftaincy declaration pertaining to number of candidates to be nominated for presentation to the kingmakers – whether applicable.

CUSTOMARY LAW – CHIEFTAINCY MATTERS – Oral and documentary evidence – whether trial Judge was right to receive and rely on same to ascertain the appropriate customary law for nomination of a chieftaincy candidate.

PRACTICE AND PROCEDURE – COURT – Appellate court – when same will interfere with the findings of facts by trial court.

PRACTICE AND PROCEDURE – ESTOPPEL – Doctrine of estoppel – nature of.

PRACTICE AND PROCEDURE – EVIDENCE – Oral and documentary evidence – whether trial Judge was right to receive and rely on same to ascertain the appropriate customary law for nomination of a chieftaincy candidate.

PRACTICE AND PROCEDURE – Amendment sought by plaintiff – refusal of same by trial Judge – whether occasioned a miscarriage of justice.

INTERPRETATION – STATUTES – Section 15(i)(f) (ii) of Chiefs Law of Oyo State – where there is a lacuna in the chieftaincy declaration

 

 

MAIN JUDGEMENT

FRANCIS FEDODE TABAI, JCA. (Delivered the following judgment):

This appeal is against the judgment of Honourable Justice R. O. Yussuf at the Ikirun Judicial Division of the High Court of Osun State on the 30/6/98. The reliefs’ claimed were:

1. A declaration that there are two and only two lineages of Elemo Ruling House, Oyan, namely Elemo Olarinoye and Elemo Aresinkeye.
2. A declaration that the report of a discreet investigation allegedly conducted by the Secretary to the 4th defendant Mr. S. O. Fadara which purportedly increased the number of lineages of Elemo ruling house to five (by splitting Aresinkeye into four) is unfair, inequitable, contrary to history, void and unconstitutional having been arrived at without giving the Olarinoye lineage a hearing at all or any notice of such investigation.
3. A declaration that it is the turn of Olarinoye lineage of Elemo ruling house to produce a candidate for the Oloyan of Oyan chieftaincy since the Aresinkeye lineage has produced two past Oloyans (Oba Ige Adubi and Oba Onnuola) out of the three or four produced by Elemo ruling house and Olarinoye has produced only one (Oba Olarinoye).
4. A declaration that the attendance of the 5th – 7th defendants (who are kingmakers) at the family meeting of Elemo ruling house on 22/11/96 was an open demonstration of bias and the 5th –7th defendants are as such disqualified from participating in any meeting of Kingmakers convened for the consideration of any candidate nominated on the aforesaid date.
5. A declaration that the selection of the 1st defendant by the 5th-7th defendants at a meeting commandeered and conducted by the Secretary to the 4th defendant and the 5th – 7th defendants on the 20th November 1996 was oppressive, irregular, contrary to natural justice and native law and custom of Oyan, and ipso facto null and void.
6. An injunction restraining the 2nd defendants from relying on the aforesaid report of discreet investigation and/or the nomination/ selection conducted on 26/11/96 in making an appointment to the Oloyan of Oyan chieftaincy.
7. An injunction restraining the 2nd defendant from appointing or approving the appointment of the 1st Defendant who is from one of the lineage (secretly created from) Aresinkeye lineage as the next Oloyan of Oyan.”

 

The 1st, 5th, 6th and 7th defendants counter-claimed for:

“1.     A declaration that the 1st defendant as the candidate who enjoys the support of the majority of the entire members of the Elemo ruling house as demonstrated at the meeting of the said family on 22/11/96 where he was selected as candidate and approved by majority of the Kingmakers for the Oloyan of Oyan chieftaincy at their meeting of 26/11/96 is the person entitled to be installed as the Oloyan of Oyan.

2. A declaration that the 1st plaintiff and the 2nd plaintiff are estopped from challenging the selection and approval of the 1st Defendant having voluntarily participated in the Elemo ruling house and kingmakers’ meeting respectively whereat the 1st defendant was selected by a majority of the members of the Elemo ruling house and his candidature was approved by a majority of the Kingmakers.
3. An order directing the 2nd defendant to approve without any further delay the candidature of the 1st defendant for installation as the Oloyan of Oyan.
4. An order of injunction restraining the 2nd plaintiff from doing or refusing to do anything that may affect the installation of the 1st defendant as the Oloyan of Oyan.”

 

At the trial the court received both oral and documentary evidence. Counsel for the parties addressed the court at the close of evidence. On the 8/5/98 before the address of learned counsel for the plaintiff’s arguments was taken on the motion for amendment of paragraph 66(e) of the statement of claim. Ruling was reserved and delivered with/or in the judgment. In the judgment the said amendment sought was refused. With respect to the substantive reliefs claimed, plaintiffs’ reliefs (a) and (c) were granted. And for the 1st, 5th, 6th and 7th defendants’ counter-claim reliefs 1, 3 and 4 were granted.

 

This appeal is against the said judgment. In accordance with the rules of this court the parties, through their counsel, filed and exchanged their briefs of argument. The appellants’ brief filed on the 26/1/2000 was prepared by Chief Adeboye Adejumo, SAN. He also prepared the appellants/cross-respondents’ brief of argument to the cross-appeal filed on 15/8/2001. The 1st, 5th, 6th and 7th defendants/respondents’ brief of argument filed on the 22/10/2001 was prepared by Kolawole Esan. He also prepared their defendants/cross-appellants’ brief of argument filed on the 22/5/2001. The 2nd and 3rd respondents’ brief of argument filed on the 19/10/2001 was prepared by Yinka Aderibigbe, Assistant Director of Litigation and Advisory Services, Ministry of Justice, Osogbo and the 4th respondent’s brief filed on the 13/2/2002 was prepared by J. Olasunkanmi Anwo.

 

In the appellants’ brief of argument six issues were identified for determination. The 1st, 5th, 6th and 7th defendants/respondents also formulated six issues, which were, in substance similar to those of the appellants. The 2nd, 3rd and 4th respondents adopted the six issues as formulated by the 1st, 5th, 6th and 7th respondents. I would therefore adopt the issues as raised by the appellants. The issues are –

 

“1.     Whether the learned trial Judge was right in refusing the application of the plaintiffs to amend paragraph 66(e) of the statement of claim shortly after the address of the defendants and before the plaintiffs addressed the court and whether that refusal has occasioned a miscarriage of justice.

 

8. Whether the learned trial Judge having held rightly that there is the custom of sharing slots when there is a vacancy and that it is the turn of Olarinoye branch to field a candidate was right in holding again that since the 1st plaintiff submitted to nomination by the joint meeting of the family where G. O. Efunwole and John Adesina who were his agents nominate him, their acts bind him and he cannot resile from it.

 

9. Whether the learned trial Judge having identified the real serious objection that can be raised against the family nomination was right by invoking the provisions of sections 15 (4) (ii) of the Chief Law of Oyo State applicable in Osun State to the effect that the family could nominate two or more candidates for consideration as against paragraph (v) of the Chieftaincy declaration of Oloyan of Oyan exhibit “G2”.

 

10. Whether the learned trial Judge having held that the 2nd plaintiff, the Eesa cannot be described as a meddlesome interloper was right in holding that he has no locus standi in the case.

 

11. Whether the trial Judge was right in failing to direct his mind at all to the plaintiffs’ relief (iv) to the effect that the action of 5th to 7th defendants who are in-laws to the 1st defendant are actuated by open bias by attending the family nomination of candidate meeting and later sitting as Kingmakers to appoint the candidate.

 

Whether in view of exhibits “C” (family meeting for nomination), “F” (meeting of the Kingmakers) “H1” “G2″ (Chieftaincy declaration of Oloyan) the learned trial Judge was right in holding that the 1st defendant was validly nominated and appointed and whether by so holding he was right in granting the third relief of the counter-claim”.

 

The following is the substance of the arguments of counsel for the parties. On the first issue the argument of learned senior counsel for the appellant is that in view of the assertions in paragraphs 56 and 60 of the statement of claim, the main dispute being the validity of the meetings of the Elemo ruling house and the Kingmakers of 22/11/96 and 26/11/96 and the fact that amendment sought did not create any new issue, it ought to have been granted. The amendment, it was argued, was designed to enable the court pronounce on the validity of the Kingmakers meeting of the 22/11/96 vis-à-vis the provisions of paragraph (v) of the registered declaration of the chieftaincy exhibits “G2 and H1. In support of this submission he cited Cropper v. Smith (1884) 26 Ch. D. 700 at 711; Chief A. Adekeye v. Chief G. B. Akin-Olubgade (1987) 3 NWLR (Pt. 60) 214; Shell Pet. Dev. Co. v. Ambah (1999) 3 NWLR (Pt. 593) 1 at 10.

 

It was contended that the failure to grant the amendment occasioned a serious miscarriage of justice.

 

On the 2nd and 3rd issues it was argued that there was no decision or nomination by the ruling house from which the plaintiffs could resile, the meeting of the 22/11/96 having ended in a stalemate.

 

It was appellants’ submission that since the meeting of 22/11/96 was a complete negation of the provisions of paragraph (v) of exhibits G2, the registered declaration; the whole exercise was a nullity. Paragraph (v) of exhibits G2 which was bound to be followed required the ruling house to present a candidate to the Kingmakers and the non-compliance therewith, it was argued, rendered the whole exercise a nullity. For the importance and mandatory status of chieftaincy declaration appellants relied on Oladele v. Aromolaran (1996) 6 NWLR (Pt. 453) 180; Afolabi v. Gov. of Oyo State (1985) 2 NWLR (Pt. 9) 734 and Ojo v. Gov. of Oyo State (1989) 1 NWLR (Pt. 95) 1. It was their submission that by importing the provisions of section 15 (4) (ii) of the Chiefs Law Cap. 21 Laws of Oyo State applicable in Osun State the purpose of paragraph (v) of exhibit G was defeated.

 

As regards the 4th issue the learned senior counsel for the appellants referred to the trial Judge’s description of the PW5 (2nd plaintiff) as the regent of Oyan and head of the traditional Chiefs and the fact of his being the head of the Kingmakers and submitted that he is presumed to be the custodian of the native law and custom in relation to the appointment of the Oloyan of Oyan. In that revered status, he was the person through whom all notices and circulars were sent to the ruling house and the Kingmakers and as such he had vested rights and therefore locus standi to sue in connection with the Oloyan of Oyan chieftaincy, counsel argued. It was further contended that no issues were joined and no evidence led on the 2nd plaintiff’s lack of locus standi and that the learned trial Judge was on a frolic of his own to make the findings about his lack of locus standi. Reliance was placed on Ojo v. Gov. of Oyo State (1989) 1 NWLR (Pt. 95) 1 at 12.

 

For the 5th issue it was contended that issue was joined in paragraphs 31-35 of the statement of claim and 31-32 of the 1st, 5th, 6th and 7th defendants’ statement of defence on the 5th, 6th and 7th defendants’ bias in the appointment exercise by reason of their being in laws of the 1st defendant. It was the appellants’ submission that the trial court was bound in such circumstances to make finding on the issue and that the appeal be allowed on the court’s failure so to do.

 

The 6th issue deals with the trial court’s finding of there being a valid nomination of the 1st defendant by a majority of the Elemo ruling house. The appellants repeated the argument on the meeting of the ruling house on the 22/11/96 which ended in a stalemate. This, it was argued confirmed by the absence of a covering letter from the ruling house. Attention was also drawn to the fact that only the 5th, 6th and 7th defendants signed the minutes of 26/11/96 while the 2nd plaintiff who was head of the Kingmakers refused to sign. It was submitted that the 2nd defendant was therefore wrong to approve the appointment of the 1st defendant based on the minutes of 22/11/96. Support for the submission was sought in Adefulu v. Oyesile (1989) 5 NWLR (Pt. 122) 377 at 421. It was argued that exhibit “C’’ the minutes of the meeting of 22/11/96 shows that the meeting ended in a stalemate and the document itself an infraction of the provisions of exhibit G2 and which is therefore null and void and on which the 2nd defendant’s cannot base his approval of the 1st defendant’s appointment.

On the 1st issue the substance of the argument of learned counsel for the 1st, 5th, 6th, and 7th defendants/respondents is that there was no way the amendment could have been granted without some injustice to the defendants. He argued that issues were joined and evidence led on the nomination and selection of the 1st defendant but that no issue was joined on the validity or invalidity of the meeting of the 22/11/96 nor that of 26/11/96. It was argued that even if the amendment had been granted the claim still failed because paragraphs 56 and 60 of the statement of claim were abandoned. Learned counsel relied on Igwegbe v. Ezuma (1999) 6 NWLR (Pt. 606) 228.

 

With respect to the 2nd issue it was contended that the only authentic document with respect thereof is exhibit “C” which shows that 1st plaintiff was nominated by D. O. Efunwole and John Adebisi Adesina both of the 1st plaintiff’s Olarinoye branch of the Elemo ruling house. It was further pointed out that the 1st plaintiff never objected to his nomination and participated in the proceedings to the end of the meeting which he contended, did not end in stalemate. They cannot therefore turn round to condemn the same. He urged that the complaint of the appellants be ignored.

 

On the 3rd issue learned counsel argued that the meeting was properly convened and participants deliberated and decisions on votes taken without any complaint with the Secretary to the 4th defendant, 5th, 6th and 7th defendants attending only as observers. The minutes – exhibit C – were signed by the Chairman and Secretary of the house and sent to the Kingmakers who decided in favour of the 1st defendant.

 

On the 3rd issue learned counsel argued that the absence of a covering letter is immaterial. On the trial court’s reliance on section 15 (4) (ii) of the Chiefs Law instead of paragraph V. of the Chieftaincy declaration exhibit G2, it was submitted that the declaration was subject to the present Chiefs Law and therefore that paragraph v of exhibit G2 cannot be read in isolation. He relied for this submission on Ayoade v. Military Gov. of Ogun State (1993) 8 NWLR (Pt. 309) 111 at 128. He further referred to exhibit “F” – the minutes of the Kingmakers’ meeting of 26/11/96 whereby the 2nd plaintiff was the Chairman and contended that the meeting of the 22/11/96 did not end in a stalemate.

 

On the learned trial Judge’s remark about the 2nd plaintiff not having locus standi, it is his contention that it was just a passing remark and that he did not treat it as an issue and the judgment was not therefore based on that statement.

 

With respect to the presence at the meeting of the 22/11/96 and their alleged bias by reason of their being inlaws of the 1st defendant it was contended that there was nothing to warrant the trial court’s pronouncement since there was no evidence that by reason of their bias they were disqualified from the subsequent Kingmakers’ meeting. Their presence, it was argued, was immaterial since they were there on the invitation of the ruling house merely as observers. According to him there was no evidence that their presence influenced the Omomojos in their choice of candidate.

 

With regards to the 6th issue it was submitted that in the light of exhibits G, F, H1 and G2 the trial court was right in granting reliefs 1, 3 and 4 of the counter-claim.

 

Yinka Aderibigbe for the 2nd and 3rd respondents adopted the arguments contained in the 1st, 5th, 6th and 7th respondents’ brief of argument. On the amendment sought and refused he relied on Shell Petroleum Co. Ltd. v. Ambah (1999) 3 NWLR (Pt. 593) 1, Adekeye v. Akingbade (1987) 3 NWLR (Pt. 60) 214. He referred to the evidence that on the 26/11/96 the 2nd appellant who was the head of the Kingmakers and in whose house the selection meeting took place personally recorded the minutes and voted for the 1st appellant. He cannot be heard to complain about the validity of the proceedings just because the outcome did not favour him. For this proposition he relied on Justin Effiong v. Elder Ebona Ikpeme and Ors. (1999) 6 NWLR (Pt. 606) 260. With respect to the chieftaincy declaration vis-à-vis the Chiefs Law of Oyo State it was the submission that the declaration exhibit G2 derives its powers from and therefore cannot supercede the Chiefs Law. He relied on Rufus Femi Amokeodo v. I.G.P and Ors. (1999) 6 NWLR (Pt. 607) 467.

 

Learned counsel for the 4th respondent J. O. Anwo adopted the arguments as contained in the 1st, 5th, 6th, and 7th respondents’ brief of argument.

 

The argument of J. O. Anwo for the 4th respondents was to the same effect as that of the other respondents.

 

For the cross-appeal the parties thereto agreed on two-issues namely-

 

“(a)    What is the standing of the 2nd plaintiff/cross respondent in this suit; and

 

(b)     Whether there is a lacuna in exhibit G2, the customary law regulating the selection of the Oloyan of Oyan chieftaincy and if so whether the trial Judge could in the circumstances of the case fill the lacuna as he did to justify the division of Elemo ruling house into two via Olarinoye and Aresinkeye.”

 

On the first issue the substance of the arguments of learned counsel for the cross-appellants is that the 2nd plaintiff has no locus standi to institute the action and his name be struck out.

 

With respect to the 2nd issue it was the submission of cross-appellants that exhibit G2 is the comprehensive customary law regulating the selection and appointment of the Oloyan of Oyan and that there was no lacuna for the trial court to fill. It was their submission that exhibit G2 remains binding and until it is amended that court is bound to give effect to it. For this submission they relied on Ogundare v. Ogunlowo (1997) 6 NWLR (Pt. 509) 360; (1997) 5 SCNJ 281 at 289; Ayoade v. Military Gov. of Ogun State (1993) 8 NWLR (Pt. 309) 111; Oladele v. Oba Aromolaran ll and Ors. (1996) 6 NWLR (Pt. 453) 180; Adigun v. A-G., Oyo State (1987) 1 NWLR (Pt. 53) 678 at 698. He argued that the cross-appeal be allowed.

 

For the cross-respondents the argument on the 1st issue was to the effect as that they proffered in the appellants’ brief. On the 2nd issue their submission was that exhibit G2 has a lacuna in that there is no provision as to the rotation between the two branches of the ruling house. For the authority of the court to make recourse to evidence to fill a lacuna in a chieftaincy declaration he relied on Edewor v. Uwegba (1987) 1 NWLR (Pt. 50) 313 at 345 and Lipede v. Sonekan (1995) 1 NWLR (Pt. 374) 668 at 689.

 

I shall now consider the various issues starting with locus standi of the 2nd plaintiff/appellant since it touches on the issue of jurisdiction. In my view all the fuss about the appellant’s locus standi comes to nothing more than a mere academic exercise.

 

In the first place the decision of the learned trial Judge was not based on the 2nd appellant’s perceived lack of locus standi. The issue is irrelevant to the outcome of this appeal. Even if the 2nd appellant has no locus standi (which is not conceded) and his name were to be struck out, the 1st appellant has locus standi and the action survives. None of the seven reliefs enures for the benefit of the 2nd appellant as an individual. I shall therefore disregard the issue.

 

With respect to the amendment sought and refused it was the view of the learned trial Judge that it was intended to substitute a completely new cause for the one on which the case was fought. I do not, with respect, agree with that statement of the learned trial Judge. The case of the plaintiffs/appellants is that there was disagreement at the family meeting of 22/11/96 between the two families of the ruling house with the meeting ending in a stalemate as the house could not agree on a single candidate and it was the minutes of the stalemated meeting that was submitted to and acted upon by the Kingmakers meeting of 26/11/96. It was also their case that at the meeting of 26/11/96 the 2nd appellant insisted on not selecting a candidate based on the minutes of the ruling house of 22/11/96. This is clear from paragraphs 56 and 60 of the amended statement of claim. The case of the respondents on the other hand is that the meeting of the ruling house of 22/11/96 never ended in a stalemate and that it was duly conducted to its logical conclusion with the renomination of the 1st plaintiff and the 1st defendant to the Kingmakers for appointment. It was also their case that the meeting of the Kingmakers on the 26/11/96 in the house of the 2nd appellant was duly presided over and conducted by him without any protest and wherein the 1st respondent was chosen by 3 votes to 1. It is clear from the record that the amendment was to further highlight the alleged protests. At that stage when the amendment was sought what was most important was the evidence already received in the light of the pleadings. The 2nd plaintiff/appellant (PW5) adduced detailed evidence and he was extensively cross-examined. Granting or refusing the amendment at that stage would not settle the issue of whether there was any protest by the 2nd appellant at the meeting of 26/11/96 and the extent of such protest. In my consideration the amendment would not have had any conceivable impact either way. I do not therefore see anything wrong with the trial court’s refusal of the amendment sought. Even if he were wrong (which I do not concede) the refusal did not occasion any injustice to the appellants’ case. For this reason I resolve this issue in favor of the defendants/ respondents.

 

I shall now examine what I consider to be the crucial aspect of the dispute. It is the effect of the meeting of the Elemo ruling house, Oyan for the purpose of choosing a candidate for presentation to the Kingmakers held on the 22/11/96. It is a common ground that exhibit G2 is the Oloyan of Oyan Chieftaincy declaration.

 

It is also a common ground that it is the document (law) embodying the Customary Law Procedure for the choice of an Oloyan of Oyan. It is a piece of subsidiary legislation made under the Chiefs Law Cap. 19 of the Laws of Oyo State.

 

It is a rather short document. The area relevant to the dispute is paragraph 5 thereof. Paragraph 5 states –

 

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

 

(i)      The ruling house whose turn it is to provide a candidate will nominate at a meeting to be summoned by the family head a candidate for the chieftaincy to be presented by the family head to the Kingmakers.

 

(ii)     If the Kingmakers are satisfied that the candidate is suitable from all points of view they recommend him for approval by the Governor. If they are not satisfied, they request the entitled ruling house to present another candidate.”

 

This is all the declaration says about the procedure or method by which an entitled ruling house can nominate a candidate for a vacant stool of the Oloyan of Oyan. What is the procedure for nomination where, as in this case, a ruling house is made up of two or more branches or sections? It is the contention of the plaintiffs/appellants that the declaration makes no provision for this and is therefore in exhaustive, leaving in its wake a lacuna, which must of necessity be filled by the court’s recourse to the oral and documentary evidence of the applicable custom of the ruling house. The defendants/respondents contended on the other hand that the declaration (exhibit G2) is exhaustive and comprehensive and that the court must confine its application within the four walls of the provision.

 

These arguments were proffered at the court below. After a review of some case law authorities the learned trial Judge held (1) that the Elemo ruling house is made up of two branches namely Elemo Olarinoye and Elemo Aresinkeye (ii) that the Elemo ruling house has produced three Oloyans of Oyan with one from the Olarinoye branch and two from Aresinkeye branch (iii) that the selection rotates between the two branches and (iv) that having regard to the fact that Aresinkeye branch has produced two of the three from the ruling house it ought to be the turn of the Olarinoye to produce the present vacancy. The declaration, exhibit G2 has made no provision for these findings. Each of these finding is however supported by ample evidence – oral and documentary – from both sides outside the declaration. Based on the evidence therefore I have no reason to interfere with all or any of the findings.

 

But the defendants/respondents’ attack on these findings is based on points of law. Each side cited authorities in support of their position. In Prince O. A. Alabi Ogundare and Anor. v. Shittu L. Ogunlowo and Ors. (supra) the Supreme Court held that the Baale of Isundunrin Chieftaincy declaration (exhibit D) which clearly set out the number, identity and order of sequence of successors of the ruling houses contained therein is the legally binding written statement of the customary law regulating the selection and appointment of a candidate when a candidate occurs and that it was in such a case wrong to receive and act upon evidence of native law and custom outside the declaration. In Chief Mesioye Ayoade and Ors. v. The Military Gov. of Ogun State and Ors. (1993) 8 NWLR (Pt. 309) 111 the Court of Appeal relying on Edewor v. Uwegba (1987) 1 NWLR (Pt. 50) 313 held that a registered chieftaincy declaration of any chieftaincy is an embodiment in a legally binding written statement of the customary law regulating the nomination and selection of a candidate to fill a vacant stool and that any custom, tradition or usage that was alleged to have existed but not in the registered declaration is presumed to have been excluded from the custom. And in Jeje Oladele and Ors. v. Oba Adekunle Aromolaran II and Ors. (1996) 6 NWLR (Pt. 453) 180 the Supreme Court held that a registered chieftaincy declaration in respect of any particular chieftaincy is conclusive proof of the custom relating to the selection and appointment of the Chief it pertains to. These authorities support the stand taken by the defendants/respondents/cross-appellants.

 

For the position taken by the plaintiffs/appellants/cross-respondents the first case is Chief J. O. Edewor v. Chief M. Uwegba and others supra. The principle in this case is that although a registered chieftaincy declaration must be taken to represent the customary law regulating the appointment, installation and other requirements pertaining to that chieftaincy stool, where the declaration is scanty and inexhaustive and thus leaves a lacuna, other evidence of custom and usages may be resorted to in order to fill the vacuum and settle the dispute. And in Oba Oyebade Lipede and Ors. v. Chief Adio Sonekan and Anor. (1995) 1 NWLR (Pt. 374) 668, the Supreme Court adopting the principle in Edewor v. Uwegba supra held that where a registered chieftaincy declaration governing the selection and appointment to a chieftaincy stool is inexhaustive of the customary law applicable to the chieftaincy, recourse will be had to both oral and documentary evidence to prove the particular custom of that chieftaincy.

 

In my consideration the two authorities cited by my learned senior counsel for the plaintiffs/appellants/cross-respondents are more apposite to the situation in the present case. In Edewor v. Uwegba supra the registered chieftaincy declaration exhibit S.C 1 was, on the face of it, held to be rather scanty and inexhaustive to provide a solution to the vexed question of the customary law when an Olota dies while the Ovie is alive and recourse was made to other evidence of custom outside the declaration. Similarly in Lipede v. Sonekan supra it was held that even if the Ashipa Egba chieftaincy declaration exhibit 18 were to be applicable, it could not apply because it was clearly inexhaustive of the customary law governing that chieftaincy and therefore recourse was had to other evidence oral and documentary. In the instant case the chieftaincy declaration exhibit “G2” is scanty and clearly inexhaustive. There is clear evidence and a finding of there being only two branches within the Elemo ruling house. But there is no stipulation in the declaration as to the rotation for the nomination of a candidate between the two branches of Elemo Olarinoye and Elemo Aresinkeye whenever it is the turn of the house to nominate a candidate for the Oloyan of Oyan stool. I hold that in such a situation the learned trial Judge was perfectly right to receive and rely upon both oral and documentary evidence to ascertain the appropriate customary law for nomination of a candidate. This disposes of the first part of the 2nd issue in the appeal and the entire 2nd issue in the cross-appeal.

 

It is pertinent at this stage to discuss the appellants’ third issue. Exhibit G2 requires the ruling house whose turn it is to provide a candidate for the stool to nominate a candidate for presentation to the Kingmakers. There is no provision that the ruling house can present more than one candidate. The learned trial Judge felt that although the chieftaincy declaration provides for only a candidate there is nothing wrong if it presents two candidates to the Kingmakers by virtue of the provisions of section 15 (1) (f) (ii) of the Chiefs Law of Oyo State applicable in Osun State. I am inclined to this view of the learned trial Judge. Section 15 (1) (f) (ii) of the Chiefs Law of Oyo State applicable in Osun State provides:

 

“If the names of more than one candidate are submitted who appears to the makers to be qualified and not disqualified in accordance with section 14, the names of those candidates shall be submitted to the vote of the Kingmakers and the candidate who obtains the majority of votes of the Kingmakers present and voting shall be declared appointed.”

 

If a ruling house is unable to agree on a single candidate stated in the declaration (exhibit G2) there is nothing wrong with its presentation of two candidates to the Kingmakers for their decision in view of the above provision of the Chiefs Law. Besides, the situation is another instance of the inexhaustiveness of the chieftaincy declaration (exhibit G2) articulated and relied upon by the appellants under issue two above. I hold that the trial court was right to invoke the provisions of section 15(1) (f) (ii) of the Chiefs Law of Oyo State applicable in Osun State in view of the inexhaustiveness and lacuna in the chieftaincy declaration. I resolve this issue in favour of the respondents.

 

The matter does not however end there. The crucial question is whether the learned trial Judge, having found amongst other things, that it was the turn of the 1st plaintiff’s Olarinoye family to produce a candidate, was right in holding that they lost their right by submitting to nomination by a joint meeting of the ruling house. This is the question in the second part of the 2nd issue. In paragraph 46 of the 1st, 5th, 6th and 7th defendants’ statement of defence it was pleaded thus:

 

“The defendant shall contend that the 1st plaintiff having taken part in the nomination exercise at which he lost to the 1st defendant who had the overwhelming majority is estopped from asserting the separateness of Olarinoye lineage from Elemo ruling house.”

 

The evidence in support of this pleading is exhibit “C”, the minutes of the Elemo ruling house of 22/11/96 and exhibit “F” the minutes of the Kingmakers of 26/11/96. The learned trial Judge relying on exhibit “C” held that although it was the turn of the 1st plaintiff’s Olarinoye branch of the Elemo ruling house to fill the vacant stool, they surrendered or waived their right by accepting or submitting to nomination by a joint meeting of the house. It was his view that although the 1st plaintiff did not attend the meeting, Pa Daniel Efunwole who nominated him and Prince John Adebisi Adesina who was Secretary of the meeting represented the Olarinoye branch and that they were agents whose acts bind the principal.

 

The question is, was there evidence of such conduct, action or inaction of the 1st plaintiff and/or the Olarinoye family at the Elemo ruling house meeting of the 22/11/96 to preclude or estop them from asserting their right to produce a candidate representing the ruling house for the vacant Oloyan of Oyan chieftaincy stool to justify the conclusion of the learned trial Judge? Put in another way, was there evidence of such conduct, action or inaction of the 1st plaintiff and/or the Olarinoye family at the meeting to produce a candidate for the vacant stool to which they were otherwise entitled? These two posers involve the doctrine of estoppel and waiver resorted to by the learned trial Judge. Estoppel applies to preclude a person from denying or alleging a certain fact or state of facts because of his previous inconsistent position, conduct or allegation. Waiver involves the express or implied voluntary relinquishment of a known right.

 

The evidence on which the learned trial Judge relied for his decision is exhibit “C” the minutes of the Elemo ruling house of 22/11/96 for selection of a candidate for the vacant Oloyan of Oyan stool. The text reveals that the meeting started at about 10.30 a.m. with Pa John Oke presiding and Gabriel Aderinkola as his vice. Prince John Adebisi Adesina was the Secretary. He was assisted by Mr. Oyakanmi Adekeye. There were 95 participants among whom were some law enforcement agents. Alhaji Shittu Oyewole said the opening prayer. After Pa John Oke’s explanation of the purpose and importance of the meeting Alhaji Shittu Oyewole nominated Prince Kilani Adekeye (1st plaintiff/respondent) as the candidate to occupy the vacant stool of the Oloyan of Oyan. He was seconded by Prince Nathaniel Bamidele Araoye. Then Pa Daniel Efunwole nominated Prince Sunmonu Adesina (1st defendant/appellant) for the vacant stool. He gave as reason for his nomination the fact that the Elemo ruling house is made up of two units – Olarinoye and Aresinkeye and that while Olarinoye has filed the Oloyan of Oyan stool only once in the past, the Aresinkeye unit had produced two Oloyans of Oyan and that it was therefore the turn of the Olarinoye branch to produce a candidate for the current vacant stool. He was seconded by Pa Gabriel Adeosun. Alhaji Shittu Oyewole opposed the stance and nomination by Pa Daniel Efunwole and contended that Elemo ruling house was one entity.

 

The text shows that following the continued arguments and disagreements the Secretary of the Odo Otin Local Government, Mr. S. O. Fadara urged for a compromise so as to send a candidate or candidates to the Kingmakers. Despite the advice and caution by Mr. S. O. Fadara the disagreement seemed to have continued with Elder Nathaniel Esan speaking in a similar vein as Alhaji Shittu Oyewole. Pa Daniel Efunwole then called for closing prayer because a compromise could not be reached (Italics supplied). Prince Nathaniel Bamidele Araoye called for a vote on the controversy. Prince Jimoh Adesina opposed the suggestion of votes to be taken and contended that if votes were to be taken as to who from the Elemo ruling house should be the next Oloyan of Oyan, it would be the responsibility of the whole Oyan town so to vote as was done when the late Oloyan Yusuf Afolayan was selected. Some unspecified number of participants raised their hands in support of Prince Kilani Adekeye while some unspecified number walked out. Those who staged a walk-out opposed the idea of voting on the matter by the Elemo ruling house instead of allowing the whole Oyan town to vote as was done in the previous selection of late Oba Oloyan Yusuf Afolayan. As the disagreement continued Prince Nathaniel Esan moved for adjournment and said the closing prayer at exactly 10.55 a.m.

 

It is clear from the above that neither Pa Daniel Efunwole nor Prince John Adebisi Adesina who were adjudged by the learned trial Judge to be agents and representatives of the 1st plaintiff’s Olarinoye family at the meeting of the Elemo ruling house of 22/11/96 said, did or failed to do anything that precludes the said family from claiming their right to produce the candidate for the vacant Oloyan of Oyan stool. Nor did they do or fail to do anything at the meeting leading to any inference of their abandonment or waiver of their claim to the throne. In fact exhibit “C” shows that they insisted on Olarinoye family’s entitlement to the vacant stool to the exclusion of the Aresinkeye through out the 25-minutes duration of the meeting. Although there is some evidence at page 2 of exhibit “C” that some people raised their hands in support of Prince Kilani Adekeye, others including Prince Jimoh Adesina opposed any voting on the matter by members of the Elemo ruling house. Mere attendance at the meeting by the Olarinoye branch does not mean their acceptance of the joint nomination by the two units of the ruling house. There is therefore no evidence in exhibit “C” to warrant the learned trial Judge’s finding of the Olarinoye family’s abandonment or waiver of the their claim to the vacant stool.

 

Generally the appellate court will not interfere with the findings of fact made by a trial court. Where however the findings are not supported by the evidence on record it is perverse and an appellate court must necessarily intervene. And where the evidence is documentary and does not involve the credibility of witnesses, the appellate court is in as vantage a position as the trial court to reappraise it and substitute its own findings for those of the trial court. See Oladejo Adewuyi Ajuwon v. Fadele Akanni and Ors. (1993) 9 NWLR (Pt. 316) 182 at 200-221 and 207; Balogun v. Agboola (1974) 10 S.C 111; Dr. Kwazeme Ofondu v. S. E. Niweigha (1993) 2 NWLR (Pt. 275) 253 at 258-259 and Amakor v. Obiefuna (1974) 3 S.C 67. I hold that trial court’s findings about the Olarinoye family’s abandonment or waiver of their right to produce a candidate for the vacant stool of Oloyan of Oyan is perverse same not having been supported by the evidence in exhibit “C” and it is accordingly set aside. In its place I substitute a finding that at the meeting of the Elemo ruling house on the 22/11/96 the Olarinoye family maintained and insisted on their right to produce the candidate for the vacant stool.

 

The learned trial Judge granted reliefs (a) and (c) of the plaintiffs/appellants’ claim. They are the two key reliefs. Relief (c) in particular settles the main dispute. The decision is the natural result of the findings (i) that the Elemo ruling house is made up of two branches namely Elemo Olarinoye and Elemo Aresinkeye; (ii) that the Elemo ruling house has produced three Oloyans; (iii) that the selection of the Oloyans rotates between the two branches and (iv) that it was the turn of the Olarinoye family to produce a candidate for the vacant stool since Aresinkeye has produced two of the three from the ruling house. As I stated earlier these findings are amply supported by the evidence on record. And having regard to the fact that reliefs (a) and (c) are the key reliefs the other reliefs (e), (f) and (g) which are merely consequential ought to have been granted. Similarly in view of the grant of reliefs (a) and (c) the entire counter – claim ought to have been dismissed.

 

The result is that the appeal is allowed and the cross-appeal dismissed. The judgment of the lower court granting reliefs (a) and (c) is hereby affirmed. The judgment relating to the refusal of reliefs (e), (f) and (g) of the claim and the grant of reliefs 1, 3 and 4 of the counter-claim is hereby set aside. In conclusion reliefs (a), (c), (e), (f) and (g) of the claim are hereby granted. Reliefs (b) and (d) of the claim are unnecessary in view of the other reliefs granted and are therefore struck out, while the counter-claim is dismissed in its entirety. There will be costs of N10,000.00 in favour of the appellants/cross-respondents against the 1st, 5th, 6th, and 7th respondents/ cross-appellants.

 

SUNDAY AKINOLA AKINTAN, JCA.: I agree.

 

OLUFUNLOLA OYELOLA ADEKEYE, JCA.:I had the privilege to read the draft of the judgment just delivered by my learned brother F. F. Tabai, JCA. I agree in toto with the reasoning and conclusion. It is therefore also my view that the appeal be allowed and the cross-appeal be dismissed. The judgment of the lower court granting reliefs:

 

(1)     Declaration that there are two and only two lineage of Elemo ruling house, Oyan namely – Elemo Olarinoye and Elemo Aresinkeye.

 

(2)     Declaration that it is the turn of the Olarinoye lineage of Elemo house to produce a candidate for the Oloyan of Oyan chieftaincy since the Aresinkeye lineage has produced two past Oloyans (Oba Ige Adubi and Oba Onnuola) out of the three or four produced by Elemo ruling house and Olarinoye has produced only one Oba (Oba Olarinoye) is hereby affirmed.

 

The judgment relating to the refusal of reliefs (e) (f) and (g) of the claim and the grant of reliefs (1) (3) and (4) of the counter-claim is hereby set aside.

 

Consequently reliefs (a) (c) (e) (f) and (g) of the claim are hereby granted. Reliefs (b) and (d) of the claims can be dropped in view of the other reliefs granted – They are hereby struck out. The counter-claim is dismissed in its entirety. I abide by the order on costs.

 

Cases referred to in the judgment:

Adefulu v. Oyesile (1989) 5 NWLR (Pt. 122) 377.

Adekeye v. Akin-Olugbade (1987) 3 NWLR (Pt. 60) 214.

Adigun v. A-G., Oyo State (No. 1) (1987) 1 NWLR (Pt. 53) 678.

Afolabi v. Govt., Oyo State (1985) 2 NWLR (Pt. 9) 734.

Ajuwon v. Akanni (1993) 9 NWLR (Pt. 316) 182.

Amakor v. Obiefuna (1974) 3 S.C 67.

Amokeodo v. I.G.P (1999) 6 NWLR (Pt. 607) 467.

Ayoade v. Mil.Gov., Ogun State (1993) 8 NWLR (Pt. 309) 111.

Balogun v. Agboola (1974) 10 S.C 111.

Cropper v. Smith (1884) 26 Ch. D 700.

Edewor v. Uwegba (1987) 1 NWLR (Pt. 50) 313.

Effiong v. Ikpeme (1999) 6 NWLR (Pt. 606) 260.

Igwegbe v. Ezuma (1999) 6 NWLR (Pt. 606) 228.

Lipede v. Sonekan (1995) 1 NWLR (Pt. 374) 668.

Ofondu v. Niweigha (1993) 2 NWLR (Pt. 275) 253.

Ogundare v. Ogunlowo (1997) 6 NWLR (Pt. 509) 360; (1997) 5 SCNJ 281.

Ojo v. Gov., Oyo State (1989) 1 NWLR (Pt. 95) 1.

Oladele v. Aromolaran II (1996) 6 NWLR (Pt. 453) 180.

Shell Pet. Dev. Co. (Nig.) Ltd. v. Ambah (1999) 3 NWLR (Pt. 593) 1.

 

Statute referred to in the judgment:

Chiefs Law Cap. 21 Laws of Oyo State s. 15(i)(f), (4).