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How who qualifies to ascend traditional throne is proved

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KASSIM v. ADESEMOWO & ORS
CITATION: (2021) LPELR-55333 (SC)

In the Supreme Court of Nigeria
ON FRIDAY, 7TH MAY, 2021
Suit No: SC.448/2012

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Before Their Lordships:
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN
JUSTICE OF THE SUPREME COURT
JOHN INYANG OKORO
JUSTICE OF THE SUPREME COURT
EJEMBI EKO
JUSTICE OF THE SUPREME COURT
IBRAHIM MOHAMMED MUSA SAULAWA
JUSTICE OF THE SUPREME COURT
ADAMU JAURO
JUSTICE OF THE SUPREME COURT

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Between
PRINCE MUSAFAU OMOWALE ADEMOLA KASSIM – Appellant(s)
And
1. PRINCE ADEBOLA ADESEMOWO
2. THE MILITARY ADMINISTRATOR OF OGUN STATE
3. THE ATTORNEY HENERAL OF OGUN STATE
4. THE SECRETARY, IJEBU-NORTH LOCAL GOVERNMENT – Respondent(s)
LEADING JUDGMENT DELIVERED BY JOHN INYANG OKORO, J.S.C.

FACTS
The facts leading up to this appeal are that upon the demise of Oba Daniel Adelayo Kupakude 1, the Orimolusi of Ijebu Igbo in 1994, it became the turn of Ojuromi Ruling House to fill the vacancy created by his death. In line with the provisions of the Chiefs Law of Ogun State, Cap 20, Laws of Ogun State, the secretary of the Ijebu North Local Government issued a Public Notice calling on the Ojuromi Ruling House to hold a meeting for the purpose of filling the vacant stool of Orimolusi of Ijebu Igbo. At the meeting of the kingmakers held on January 6, 1997, the Appellant was nominated by a majority of six votes against the 1st Respondent with three votes. As a result, the Appellant’s name was forwarded to the Executive council of Ogun State for approval.

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Being aggrieved by the decision of the kingmakers, the 1st Respondent herein instituted an action at the High Court of Ogun State. In its judgment, the trial Court held that the selection of the Appellant by the Ojuromi Ruling House was valid but the participation of the 14th Defendant invalidated the meeting of the kingmakers.

Being aggrieved with the holding of the trial Court, both the Appellant and the 1st Respondent appealed to the Court of Appeal. In their judgment, the Court of Appeal upheld the decision of the trial Court that the Appellant was entitled to be selected as a candidate to fill the vacant stool of Orimolusi of Ijebu-Igbo but that he is from the female line and ought to have been considered only where there is no suitable candidate from the male line.

Further aggrieved, the Appellant appealed to the Supreme Court.

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ISSUES FOR DETERMINTION
The Court determined the appeal on the following issues viz:
1. Whether the Court of Appeal erred when it decided that the Appellant was from the female line of the Ojuromi Ruling House contrary to the proper construction of the Orimolusi Chieftaincy Declaration and preponderance of evidence before it and the trial Court.

2. Whether the Court of Appeal erred in holding that the “male line” by virtue of the Orimolusi Chieftaincy Declaration means an unbroken line of males which is contrary to the copious evidence accepted by the trial court to the effect that “male line” is determined by a trace of the male ancestor or progenitor of the Appellant.

3. Whether the Court of Appeal erred in holding that the 7th-9th, 13th-15th Defendants admitted in their pleadings that the 8th and 9th Defendants were not kingmakers having regard to the 7th-9th, 13th-15th Defendants 2nd Further Amended Statement of Defence as well as material and evidence before it.

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4. Whether the Court of Appeal erred in reversing the finding of the trial Court that the 8th, 9th and 15th Defendants were qualified to participate as kingmakers in the kingmakers’ meeting for the selection of a candidate to fill the vacant stool of Orimolusi of Ijebu-Igbo Chieftaincy title.

5. Whether the Court of Appeal erred by holding that the trial court set aside the removal of the 15th Defendant as Agbon when all that the trial Court did was to decide that there was no evidence before it that the 15th Defendant was removed from office as the Agbon.

APPELLANT’S SUBMISSION
Arguing issues 1 and 2 together, Appellant’s counsel submitted, relying on Oladokun v The Military Governor of Oyo State & 13 Ors (1996) 8 NWLR (pt 467) 387, that the definition of “son” by implication connotes that any male descendant of a previous holder of the title of necessity qualifies as being from the male line. Appellant’s counsel submitted that ascendancy to the throne of Orimolusi does not connote a direct and continuous male lineage in unbroken order, but one of reference to and inclusive of a grandfather or ancestor who so qualifies as held in Oladokun’s case.

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Arguing issues 3, 4, and 5, Appellant’s counsel submitted that in a situation where there are conflicting averments in a particular pleading, it is not open to a party to choose one of such conflicting averments while closing his eyes to the other for the purpose of agitating an admission or estoppel. That the pleadings would have to be considered as a whole determining if there has been an admission or not; Buhari & Anor vs Obasanjo & 264 Ors (2005) 13 NWLR (pt. 941) 1 at 261. Further, Appellant’s counsel contended the ascription of probative values to the evidence is done by the Judge who saw and heard those witnesses who gave evidence before him, and such an exercise ought not to be interfered with except in exceptional circumstances; Ndayako v Dantoro (2004) 13 NWLR (pt. 889) 187 at 216-217.
1st RESPONDENT COUNSEL’S SUBMISSION

First respondent counsel submitted in response to issues 1 and 2, that once a person is a male member of the Ruling House or son of a previous holder of the title of the male line, they are both qualified to be entitled to the throne because being the son of a previous holder already qualifies such candidate as being a member of the Ruling House and also being from the male line to the previous holder irrespective of the lineage of the previous holder; Adesanoye v Adewole (2006) All FWLR (pt. 340) 1000 at 1023. He contended that there is abundant credible and unchallenged evidence that the 1st Respondent herein is a son of Moses Oduwole Adesemowo whose father was Oba Abraham Adesemowo, Orimolusi of Ijebu-Igbo who reigned between 1929-1947. The Appellant herein on the other hand is only related to the Ojuromi Ruling House through his mother and thus a candidate of the female line.

In response to issues 3, 4, and 5, 1st Respondent counsel referred to paragraph 23 of the 2nd Further Amended Statement of Defence of the 7th-9th and 13th-15th Defendants and submitted that the statement contained therein is unequivocal and cannot be said to be a drafting error. He further contended that although it is the primary function of the trial Court to evaluate evidence but that where the findings and conclusion of the trial Court are not supported by evidence and perverse, the appellate Court shall assume the position of the trial Court and make proper findings; Odulana v Oladejo (2013) All FWLR (pt. 707) 746.

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2nd – 4th RESPONDENTS COUNSEL’S SUBMISSION
In response to issues 1 and 2, 2nd – 4th Respondents counsel’s submitted that there is nothing no evidence suggests that male line means, in the context of the Orimolusi of Ijebu-Igbo Chieftaincy Declaration, a line commencing from males and continuing through males and that the evidence of PW6 that the Appellant is a prince of the female line is unreliable and should not have been given any weight.

In response to issues 3, 4, and 5, 2nd – 4th Respondents counsel’s submitted that Claimant is to succeed on the strength of his own case and that even where there is an admission by the Defendant in any paragraph of his pleadings, the Court is enjoined to examine the evidence and the entire pleadings of the parties in arriving at a decision on the matter; Okochi v Animkwoi & Ors (2003) 6 SCM 112 at 123. Furthermore, he submitted that the evidence as evaluated by the trial Court should be followed and not as done by the Court of Appeal.
RESOLUTION OF ISSUES

The Court held as regards issues 1 and 2 that who is qualified to ascend to any traditional stool is subject to the customary law and traditions of the people of that locality, which is a question of facts to be proved by credible evidence unless frequent proof of same has made so as to be judicially noticeable. See Olowu v Olowu (1985) 3 NWLR (pt. 13) 372. The Court also held that a declaration of the customary law and usages pertaining to the selection to a particular chieftaincy stool necessarily dispenses with the need of proof by oral evidence of such custom each time the need arises to determine the matter. And that the Court is to apply the provisions of a chieftaincy Declaration to the facts of the case. See Oladele v Aromolaran II (1996) 6 NWLR (pt. 453) 180.

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The Court held that where the words used in a statute are clear and unambiguous, the Courts are enjoined to interpret the words in their ordinary and natural meanings. And a Court should give a holistic interpretation to a statute. See NURTW & Anor v RTEAN & Ors (2012) 10 NWLR (pt. 1307) 170. The Court thus held that by virtue of the Orimolusi of Ijebu-Igbo registered Chieftaincy Declaration, one must come from the male line before he is eligible to be selected to fill the vacant stool of Orimolusi of Ijebu-Igbo. However, members of the female line of the chieftaincy family can only be considered for the stool where there is a failure of qualified candidates from the male line. The Court thus held that the male descendants of the Orimolusi who occupied the office through the female line, become qualified to vie for the office if there is a failure to get a credible candidate of the male line.

As regards issues 3-5, the Court reproduced paragraph 31 (a) of the second Further Amended Statement of Claim, and paragraph 23 of the second Further Amended Statement of Defence. The Court held that an admission, which is a concession made by a party of the existence of certain facts, which is relevant to the cause of the adversary. See Adusei v Adebayo (2012) 3 NWLR (pt 1288) 534.

The Court also held that the detailed facts contained in the said paragraph 23 of their second Further Amended Statement of Defence admitted that the 8th and 9th Defendants became chiefs only after the demise of late Oba Adetayo in 1994 and that they had not been accepted and fully integrated into the kingmakers’ circle. They thus had not been recognised as kingmakers and therefore were not eligible to participate in the affairs of the kingmakers. The Court thus held that these facts are too detailed to be regarded as a “drafting error”.

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The Court also found that the 8th Defendant was stripped of his title by the Orimolusi of Ijebu-Igbo. However, the learned trial Court set aside the said decision of the Orimolusi. The Court held that a Court is not a Father Christmas and cannot generally make pronouncements that affects parties who are not before it and on issues not properly joined before it. See Okere v Amadi & Ors (2005) 14 NWLR (pt. 945) 545.

HELD
The Court held that the appeal lacked merit and accordingly dismissed it.
APPEARANCES:
Dr. Olumide Ayeni, SAN, with him,
Olutunde Abegunle, Esq., O. J. Aboje, Olawole Oyebode, Esq. and Ayodeji Olanipekun, Esq. – For Appellant(s)
Debo Oduguwa, Esq., with him, Kolade Akinyele – For 1st Respondent
Registrar – the 2nd – 4th Respondents were served.
Compiled by LawPavilion

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