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Lpelr-46085(Sc) MAGBAGBEOLA & ORS v. AKINTOLA & ORS CITATION: (2018) LPELR-46085(SC) In the Supreme Court of Nigeria ON FRIDAY, 12TH JANUARY, 2018 Suit No: SC.275/2011 Before Their Lordships: IBRAHIM TANKO MUHAMMAD Justice of the Supreme Court OLUKAYODE ARIWOOLA Justice of the Supreme Court KUMAI BAYANG AKA'AHS Justice of the Supreme Court AMINA ADAMU AUGIE Justice of the Supreme Court PAUL ADAMU GALUMJE Justice of the Supreme Court Between 1. ALH. MAROOF ADEKUNLE MAGBAGBEOLA 2. MR. RAFIU LAWAL ODOMODE 3. MR. ROTIMI ARAOYE 4. CHIEF SAKA AILETE 5. CHIEF (2018)OLABINTAN LPELR-46085(SC) 6. MR. AMINU GUARD (for themselves and on behalf of warrant kingmakers) - Appellant(s) 7. CHIEF DUNMOYE OYELEKE 8. CHIEF OYEGBEMI ABIAWO 9. CHIEF ADAM OPATUNBI 10. CHIEF AMUSA MOJEIGBE OLAAWIN 11. CHIEF (MRS) DEBORAH OLUOKUN (for themselves and on behalf of traditional Kingmakers of Olufon of lfon Osun) 12. PRINCE LASISI OLADOKUN And 1. ALH. PRINCE MOROOF OLADIMEJI AKINTOLA 2. THE EXECUTIVE GOVERNOR OF OSUN STATE - Respondent(s) 3. THE ATTORNEY GENERAL OF OSUN STATE RATIO DECIDENDI 1. CHIEFTAINCY MATTERS - CHIEFTAINCY DISPUTES: Effect of failure to comply with condition precedent in the determination of chieftaincy matters before resorting to the court "My lords, I think the only relevant issue in all the issues formulated by the parties, and upon which both parties are in tandem. is appellants issue No. 2 that is: "Whether the Court of Appeal is right in holding that the non-compliance with the provision of Section 20(1) and (2) by the respondent before coming to Court did not rob the Court of the jurisdiction to entertain the matter." Now, Section 20 of the Chiefs Law of Osun State, 2003, provides as follows: "20(1) Subject to the provision of this Section, the Executive Council may approve or set aside an appointment of a recognised chief. The Executive Council shall not approve or set aside an appointment within the period of twenty-one days after notification in accordance with Section 19 and during that period. a) an unsuccessful candidate; or b) a ruling house in respect of the chieftaincy which alleges that the proper order of rotation has not been observed, may make representatives to the Executive Council in the manner prescribed that the appointment be set aside. In determining whether to approve or set aside an appointment under this section the Executive Council may have regard to: a) Whether the provisions of Section 15 and 16 haven(sic) complied with. b) whether any candidate was qualified or disqualified in accordance with the provisions of Section 14; c) Whether the Customary law relating to the appointment has been complied with; d) Whether the kingmakers, in the case of a ruling house Chieftaincy, had due regard to the ability, character or popular support of any candidate or: e) Whether the appointment was obtained corruptly of by the undue influence of any person; and may, notwithstanding that it appears to it the appointment has been made in accordance with the provisions of this law, set aside an appointment if it is satisfied that it is in the interests of peace, order and good governance to do so." In his submissions before this Court, learned counsel for the appellants, stated, inter alia, that the Court below failed to read the entire provisions of the sub-sections of Section 20 of the Chiefs Law together in concluding the way it did in its judgment and more worrisome is the interpretation they ascribed to Section 20, that it is not a condition precedent to instituting an action. The Court below, he argued, did a summersault by holding otherwise, when it limited the application of the restriction to non-observance of order of rotation. The lower Court, learned counsel argued, had no business tinkering with the express provisions of the law by importing into it what is not there or borrowing a delimiting phrase or clause from a Section and engrafting it on another. He submitted further, that the issue of the applicability of Section 20 of the Chiefs Law as to the ground of making representation to the Governor was never canvassed by any of the parties at the lower Court. It was raised suo motu and none of the parties was given opportunity to be heard at the lower Court. Learned counsel cited some cases in support: Ajibona v. Kolawole (1996) 10 NWLR (Pt.476) 22 at 36; A-G Leventist Nig. Plc v. Akpu (2007) All FWLR (Pt.388) 1028; Dakk Nig. Ltd. v. Oil Mineral Producing Areas Dev. Commission (2007) All FWLR (Pt.364) 204. The 1st respondent in his amended brief of argument, drew attention of this Court, in paragraph 1.02 of page 3 of the brief that: "1.02 The Court of Appeal in its judgment held amongst others that non-compliance with the provisions of Section 20(2) by a person aggrieved by the appointment of a Chief is not fatal as the said Section does not provide a sanction. The appellants herein have made this finding the main thrust of this appeal. We do not intend to belabor your Lordships on the purport and interpretation of Section 20 (2) of the Chiefs Law of Osun State. We concede that the Court of Appeal was wrong in its interpretation of the law." (underlining for emphasis) However, learned counsel for the 1st respondent went on to argue that the error of interpretation (to which 1st respondent conceded) committed by the Court below is insufficient to invalidate its judgment because, the case of the 1st respondent as pleaded in the Statement of Claim was such as made compliance with Section 20(2) of the Chiefs Law inapplicable or unnecessary such as would require him to exhaust the administrative remedy provided by the law before instituting his action. My lords, I would not have proceeded to say anything, any more, than "appeal is allowed" by the concession of the 1st respondent as above, as Section 20 of the Chiefs Law of Osun State is the raison detre of this appeal. But, to be more on the side of caution, I will proceed to consider further submissions of the respective parties on issue No.2 by the appellant which is capable of determining the appeal. Permit me to start with the views expressed by the trial Court where it stated as follows: "What is expected to be done in chieftaincy matters are elaborately stated in the Chiefs law (supra). As a follow up to this point, the powers and responsibilities of the 13th & 14th defendants are fundamental. It is enough to say that he can set aside an appointment if it is satisfied that it is in the interest of peace order and good government. I have set out the submissions of learned counsel for the parties. Learned counsel for the objectors" Mr. Kehinde Adesiyan cited a plethora of authorities to persuade the Court in his argument. The plank of his argument should not be lost. Plaintiffs ought to have made representations and in additions there was nothing in the pleadings of the plaintiffs linking the 13th - 14th defendants. In other words, there was no cause of action against them. In the case of Owoseni v. Faloye (2005) FWLR 220 at 234, Dahiru Musdapher, JSC has this to say when considering a similar provision in Ondo State. 'Now in my view, the Court of Appeal is perfectly right on the statement of the law to the effect that where a statute prescribes a legal line of action for the determination of an issue be it an administrative matter, chieftaincy matter, such as this or a matter on a taxation, the aggrieved party must exhaust all the remedies in that law before going to Court.' In similar vein, Oguntade, JSC at p.224 was gracious enough to state the rationale behind the procedure. According to him: 'In relation to chieftaincy matters, were such laws not in existence, the Courts would be inundated with suits on chieftaincy matters, given the bitterness with which chieftaincy disputes are pursued and the regularity with which such dispute occur." The learned trial judge concluded that the chiefs law is not inconsistent with the provisions of the Constitution in so far as it laid down the requirements to be followed in Section 20(2) of the Chief Law (supra). I am in perfect agreement with the trial Court in its views. For a better comprehension of this matter, it is pertinent to bring out the facts more clearly. The Olumoyero Ruling House being one of the five ruling houses in respect of Olufon of Ifon-Osun Chieftaincy, is the ruling house next entitled to present candidate to fill the vacancy created by the demise of Oba Olatoye Ilufoye Orisatoyinbo II, late Olufon of Ifon-Osun who passed on the 20th of August, 2007. The plaintiff and the 1st defendant were subsequently nominated by the Olumoyero Ruling House to fill the vacant stool in line with the dictate of the tradition. The names of the plaintiff and defendant were presented to the kingmakers to enable them perform all customary and traditional rites in making a choice among the two candidates that have the best potency of filling the vacant stool and acceptable to the generality of the people of Ifon-Osun. In line with the tradition, the 12th defendant who is the Head of Olumoyero family presented the plaintiff and 1st defendant to the traditional kingmakers for their assignment. The Kingmakers assignment involve consulting Ifa oracle to know who among the two is the best candidates for peace and tranquility of Ifon-Osun.
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