LEGAL PRINCIPLE: CHIEFTAINCY LAW – Chieftaincy Succession – Appointment of Non-Member of Chieftaincy Family – Appointment Void Ab Initio
PRINCIPLE STATEMENT
Only members of that family could validly be appointed to the office; the provision empowered the Executive Council to approve the appointment of a qualified person; where a non-member of a chieftaincy family was appointed such appointment is void ab initio and the approval of the Executive Council would not, and could not, confer validity on such appointment, the approval itself is equally void; the Law would only save any valid but not void appointment made under the Edict for anything based on a void act is 'bad and incurably bad.'
RATIO DECIDENDI (SOURCE)
"Only members of that family could validly be appointed to the office. The provision of section 5 of the Oba and Chiefs of Lagos Edict No. 2 of 1975 (see now section 16 of the Obas and Chiefs of Lagos State Law, 1981, now Cap. 138 Laws of Lagos State 1994) only empowered the Executive Council to approve the appointment of a qualified person. Where a non-member of a chieftaincy family was appointed such appointment is void ab initio and the approval of the Executive Council would not, and could not, confer validity on such appointment, the approval itself is equally void. Section 44 of the Law would only save any valid but not void, appointment made under the 1975 Edict for anything based on a void act is 'bad and incurably bad' - per Lord Denning in Macfoy v. U.A.C. (1962) AC 152 at 160."
EXPLANATION / SCOPE
Chieftaincy appointments are void ab initio (from the beginning) when appointees lack fundamental qualification—membership in the entitled family. Executive Council approval powers are limited to: approving qualified persons only, not creating qualification, and not validating void appointments. When non-member is appointed: appointment is fundamentally void, executive approval cannot cure the void, and the approval itself is void. “Bad and incurably bad” means: void from inception, incapable of validation, and no curative provisions can save it. This applies Lord Denning’s principle that void acts cannot be cured—they’re nullities regardless of: time elapsed, reliance by parties, or subsequent approvals. Statutory saving provisions preserve valid acts, not void acts—no statute can validate fundamentally void appointments. This serves: protecting customary chieftaincy rules (family entitlement), ensuring qualified appointees, and preventing executive overreach (approval doesn’t create qualification). The distinction: voidable acts (irregular but curable) versus void acts (fundamental nullities, incurably bad). Family membership is essential qualification—without it, no valid appointment possible regardless of executive approval.