⦿ CASE SUMMARY OF:
M. A. Eleso v. The Government Of Ogun State & Ors. (1990)
1. The Government Of Ogun State;
2. The Attorney-General And Commissioner For Justice Of Ogun State;
3. Oba Oyebade Lipede I (THE ALAKE OF EGBALAND);
4. Chief Toye Coker (THE APENA OF EGBA);
5. Chief F.A. Oyalowo
(1990) NWLR (Pt.133) 420;
(1990) 4 S.C 15
⦿LEAD JUDGEMENT DELIVERED BY:
Kayode Eso, JSC
⦿ LAWYERS WHO ADVOCATED
FOR THE APPELLANT
– Mr. Molajo, S.A.N
FOR THE RESPONDENT
– C.J Chukura – for the 4th respondent
The appellant (M.A Eleso) and the 5th respondent (Chief Oyalowo), both belonging to the Oke Idiroko section of Ijaiye. Although in Ijaiye there are three sections, to wit: Abese, Adebakin and Oke Idiroko. It is important to note that the appointment to the Balogun chieftaincy stool was based on a rotational basis between the three sections, and it was time for anyone appointed in the section (Oke Idiroko) of the 5th respondent and the appellant to take the office. The 5th appellant, Chief Oyalowo, who was the plaintiff at the trial court claimed in his pleadings and evidence that he had been nominated by the people of Oke-Idiroko and that he was presented to the community at large and was installed by the Iyalode who placed the Akoko leaves on his head and that he was later presented to the Alake who accepted and approved his appointment. On the other hand, The appellant – Eleso, who was the 4th defendant at the trial court, gave his own account to the effect that he was in fact nominated in absentia by the people of Oke Idiroko and the presentation to the community was also done in absentia. When he later saw the chiefs, his nomination was confirmed and he gave his consent to serve. He further asserts, that some chiefs met to consider the nomination and that the Chiefs were four in number. They were equally divided in their votes for the two candidates. The prescribed authority, the Alake of Egbaland – the 3rd respondent, however refused to react to the voting, that is, failed to use a casting vote which he believed to be bad. The Alake referred the matter to the government and the government resolved the matter in favour of the 4th defendant/appellant – Eleso. At the trial court, the trial court accepted the evidence of the plaintiff – Chief Oyalowo, only in regard to his nomination. The Court disbelieved his evidence that he was presented to the Alake and approved by him. The trial court held that, “on the evidence, the plaintiff could not rightly claim to be the Balogun of Ijaiye and Are Egba”. Also, The trial court held that the four chiefs were not kingmakers as they were presumed to have been. The Alake had no casting vote. The 1st defendant – the Government, assumed the power of the prescribed authority – the Alake, by appointing the Appellant. The effect is that the appointment of the 4th defendant, Eleso was also not valid. At last, the trial court gave no judgement in favour of plaintiff – Chief Oyalowo, neither the defendant – Eleso. The plaintiff, Chief Oyalowo, appealed to the Court of Appeal. The Court of Appeal affirmed the decision of the High Court, and concluded that the appointment of the 4th defendant – Eleso, was invalid, null and void, and unconstitutional.
The 4th defendant – Eleso, has now appealed to the Supreme Court.
1. Has the plaintiff sufficient interest in the office of Balogun of Ijaiye which is not a hereditary title and to which no specified family is entitled, before an approval by the prescribed authority, to make him a competent disputant?
2. Is the Governor of the state as Chief Executive not empowered and authorised under the Chiefs Law for the peace, order and good government of the state to resolve a stalemate in favour of one of two or several contestants as in this case and in so doing to approve his appointment as a minor chief?
3. Does the Court of Appeal accord to an appellant the entrenched right of fair hearing if it considers only one ground of appeal out of five valid grounds of appeal filed and argued both in the brief of argument and orally in court?
4. Was the appointment of the plaintiff as Balogun of Ijaiye in issue before the High Court?
1. On Issue 1, the Supreme Court, held, per Kayode Eso, JSC, “There is no merit in the issue dealing with locus standi. The plaintiff has a locus standi in this matter, if anyone has”. Also, Nnaemeka Agu, JSC, held, “Section 6(6)(b) of the 1979 constitution has expressly given him a locus standi in such a case. In the instant suit, the 5th respondent’s case is that he had the right to be selected, installed, presented and approved as Balogun Ijaiye and Are Egba. This is part of his civil right. He was not asserting the civil rights of his family or any other group, but his own. It does not matter that it was not his hereditary entitlement. His case is that the stool has been allocated to his own section of the town which section selected him as a candidate. He clearly had the locus standi to bring an action in order to assert his civil right”.
2. On Issue 2, the Supreme Court held, relying on Section 22(5) of the Chiefs Law, 1976 No. 1, that the Governor has no power to appoint or resolve a stalement between both parties, the Court, per Kayode Eso, JSC, stated, “With respect, I find it difficult to accept the submissions of Mr. Molajo, S.A.N., as attractive as the theories propounded by the submissions may be. For the Government to step in and approve the appointment of one of the candidates without any backing of law, when the provisions of the law are there, clear, straightforward, and binding, is to introduce arrogance into governance. The sum total of all these is that neither the appointment of the plaintiff, nor that of the 4th defendant, has been approved. The grounds of appeal in this fail.”
4. On Issue 4, the Supreme Court held, per Kayode Eso, JSC, “A perusal of the plaintiffs statement of claim, in particular, paragraphs 17, 22, 23 and 24, shows clearly that the appointment of the plaintiff as the Balogun was in issue. These paragraphs were denied by the 4th defendant (see paragraphs 17, 23 and 24 of the 4th defendant’s statement of defence). This issue and the grounds of appeal in regard thereto also fail.”
Section 22(5) of the Chiefs Law, 1978, Cap. 20: “Any person aggrieved by the decision of the prescribed authority in exercise of the powers conferred on the prescribed authority by subsection (2) (which empowers the prescribed authority to approve) may within twenty-one days from the date of the decision of the prescribed authority, make representations to the Commissioner to whom responsibility for chieftaincy affairs is assigned that the decision be set aside and the Commissioner may after considering the representations confirm or set aside the decision.”;
Section 22 of the Chiefs Law, Laws of Ogun State of Nigeria 1978, Cap.20;
⦿ NOTABLE DICTA
The Balogun of Ijaiye and Are Egba is one of the chieftaincies which must be approved by the Alake of Egbaland because it is a minor chieftaincy. I am the chairman to the kingmakers of the Balogun of Ijaiye and Are Egba. The customary law from time immemorial is that the Alake has been the chairman of the kingmakers of the Balogun of Ijaiye and Are Egba. At the time of appointment of the Balogun of Ijaiye only four of the chiefs were alive. I held two meetings with the kingmakers to select the Balogun of Ijaiye and both the plaintiff and the 4th defendant had two votes each. I have a right to approve any of the two persons despite the tie in the voting but I did not do so as the father of both of them. – Alake, on cross-examination.
I am of the view that both the learned trial Judge and the Court of Appeal went wrong on the issue of the customary law when it comes to appointment. I think the fact is that both the plaintiff and the 4th defendant were properly nominated and both were appointed under customary law subject to the prescribed authority approving the appointment of one of them. – Kayode Eso, JSC. Eleso v. Government of Ogun State (1990)
I would like it noted clearly, that though there is no cross action by the 4th defendant on the facts placed before the court, hotly contested by the parties, and fully examined by the two courts below, neither the plaintiffs appointment nor the 4th defendant’s appointment, as the Balogun of Ijaiye, is proper. – Kayode Eso, JSC. Eleso v. Government of Ogun State (1990)
The procedure to fill a minor chieftaincy therefore begins with the appointment by those who are entitled under and by customary law to appoint. The sole duty of the prescribed authority in regard to this appointment in accordance with customary law is to give approval. The prescribed authority will be unable to perform this duty if there is a dispute whether the person has been appointed according to customary law. Until this dispute is resolved satisfactorily, he cannot approve the appointment. This decision on the dispute is also not final. – Obaseki, JSC, Eleso v. Government of Ogun State (1990)
The revocation of his appointment as prescribed authority did not therefore confer additional powers on the Governor as the prescribed authority has no power under customary law to fill the vacancy. The Alake as Alake may have some powers under customary law along with others to select and appoint but as prescribed authority, his powers are confined to giving approval. – Obaseki, JSC, Eleso v. Government of Ogun State (1990)
The power to act in the matter cannot therefore be considered part of the residuary executive power of the Governor of the state. The prescribed authority is a traditional office holder. – Nnaemeka Agu, JSC, Eleso v. Government of Ogun State (1990)
The full implication of our system in which we have opted for a rule of law is that every functionary of government including its chief executive must, in the execution of his functions, at all times act under and in accordance with law. He cannot rightly take over the function which the law allocates to another. – Nnaemeka Agu, JSC, Eleso v. Government of Ogun State (1990)
Now, right to sue in a chieftaincy contest may arise in two different ways. A man may by his statement of claim and evidence show that the right that is being asserted is that of his family by reason of, say, their hereditary interest. In that case, it is the family, usually through their representatives, who can bring the action on the premises that it is the civil right of the family that has been pleaded. On the other hand, a man may be asserting his own right to the chieftaincy stool. What is required in that case is that his statement of claim and evidence, if evidence has been called should show the nature of his interest and his entitlement to the stool. – Nnaemeka Agu, JSC, Eleso v. Government of Ogun State (1990)