IBIGBAMI & ORS v. ADEKUNLE & ORS
(2020)LCN/14291(CA)
In The Court Of Appeal
(ADO-EKITI JUDICIAL DIVISION)
On Monday, June 08, 2020
CA/EK/39/2019
Before Our Lordships:
Theresa Ngolika Orji-Abadua Justice of the Court of Appeal
Fatima Omoro Akinbami Justice of the Court of Appeal
Paul Obi Elechi Justice of the Court of Appeal
Between
- PA. EZEKIEL IBIGBAMI 2. CHIEF MICHAEL ALUKO 3. CHIEF S.A. POPOOLA 4. SAMUEL ABIODUN OJO 5. ADENIYI SUNDAY OJO (FOR THEMSELVES AND ON BEHALF OF MEMBERS OF OGBIMOYUN RULING HOUSE OF OKE-OWA QUARTERS ODO-AYEDUN EKITI.) APPELANT(S)
And
- PRINCE ADENIYI ADEKUNLE 2. PASTOR ISAAC ALUKO 3. CHIEF ARIBISALA 4. CHIEF OLU AREOLA 5. CHIEF KAYODE OSHO 6. CHIEF AMOS JEGEDE 7. MISS ADEFOYEKE OYENIKE OJO 8. THE SECRETARY, IKOLE LOCAL GOVERNMENT 9. THE SPECIAL ADVISER, CHIEFTAINCY MATTERS 10. THE ATTORNEY GENERAL AND COMMISSIONER FOR JUSTICE, EKITI STATE 11. THE EXECUTIVE GOVERNOR, EKITI STATE 12. MR. JOSEPH OLUYI 13. MR. ADEREMI AKINOLA 14. MR. ADENIYI OLUYI 15. MR. MIKE FATUNMOLA 16. OBA ILESANMI AJIBADE RESPONDENT(S)
RATIO
WHETHER OR NOT THE SUBSTANTIVE LAW GOVERNING A CAUSE OF ACTION IS THE LAW IN FORCE WHEN THE CAUSE OF ACTION ARISES
That the substantive law governing a cause of action is the law in force when the cause of action arose. He cited the cases ofObiuweubi v CBN (2011) 7 NWLR (PT1247) 465 @495; First Bank Plc v Anwana (2016) LPELR-41247 (CA); Alilonu v Njoku (2017) LPELR-42625. PER AKINBAMI, J.C.A.
FATIMA OMORO AKINBAMI, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the Judgment of the Ekiti State High Court, delivered by Hon. Justice A. Adesodun on June 28th 2016, wherein all the reliefs sought by the 1st Respondent herein (who was the Claimant at the lower Court) were granted to the effect that the selection and installation of the 16th Respondent as the Owa of Odo Ayedun-Ekiti was declared null and void.
At the lower Court, the following were the claims of the 1st Respondent:
1. A DECLARATION that the selection or nomination of the Claimant to fill the vacant stool of Owa of Odo Ayedun is valid and legal.
2. A DECLARATION that the notice of intention to set aside the nomination of the Claimant to the vacant stool of Owa of Odo Ayedun- Ekiti is illegal.
3. AN ORDER directing the 10th Defendant to approve the nomination of the Claimant as the Owa of Odo Ayedun-Ekiti.
(a). A declaration that the setting aside of the nomination and selection of the Claimant as Owa of Odo Ayedun-Ekiti is null and void.
(b). A declaration that the appointment of the 11th to 14th defendants as warrant chiefs is null and
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void.
(c). A declaration that the selection, approval, installation and presentation of staff of office to the 15th Defendant as Owa of Odo Ayedun-Ekiti is null and void.
(d). An order setting aside the nomination, approval, installation and presentation of staff of office to the 15th Defendant as Owa of Odo Ayedun-Ekiti.
It is necessary to note that at the lower Court, the 1st Respondent was the Claimant whilst the Appellants applied to this Court on the 25th of September, 2018 for leave to appeal against the judgment as interested parties. The 2nd Respondent to the 5th Respondents were all Defendants to the Appellant’s Suit No. HCL/12/09.
As garnered from the printed Record before this Court, the facts that culminated into this appeal are as follows:
The Appellants’ story is that, following the demise of Oba S. D. Ojo, the late Owa of Odo-Ayedun-Ekiti, it became the turn of the Seregun Ruling House to produce a new Owa. From the six (6) princes who showed interest, the 1st Respondent was selected at the first ballot. The Government set the nomination aside and ordered a fresh process in line with Section 11 (3) of the Chief’s Law of Ekiti State
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for the reason that the 1st Respondent’s nomination caused negative reaction from the Community. It also ordered and approved the appointment of four (4) Warrant Chiefs as Kingmakers to ensure credible, transparent and acceptable process. The 16th Respondent was nominated from the second process and eventually was installed as the Owa of Odo Ayedun Ekiti. The Appellants/interested parties of Ogbimoyin Ruling House, the other Ruling House of the Owa of Odo-Ayedun Chieftaincy, being dissatisfied with the judgment of the lower Court sought and obtained leave of this Court to Appeal against the said judgment as interested parties, particularly as it relates to the order that the Executive Governor of Ekiti State commence the process of installing the 1st Respondent as Owa of Odo-Ayedun Ekiti.
Whilst the second process was on-going, the 1st Respondent instituted Suit No. HCL/12/09 at the lower Court in the main, to declare his selection and nomination to fill the vacant stool valid, an approval of his nomination, and to restrain the 8th-11th Respondents from installing the 16th Respondent as the new Owa of Odo
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Ayedun-Ekiti.
On the other hand, the testimony of the 1st Respondent is that he was nominated as the new Owa, after the demise of Oba S. D. Ojo, and the State Executive Council set aside the nomination exercise. That, the only five (5) King makers, Obajemu, Olukotun, Obalumope, Odole and Olomodimujo that were available and took part in his nomination were acceptable in law. The government ordered a fresh nomination exercise. Whilst the second process was on-going, the 1st Respondent instituted Suit No. HCL/12/09 at the lower Court in the main, to declare his selection and nomination to fill the vacant stool valid, an approval of his nomination and to restrain the 9th-11th Respondents, from installing the 16th Respondent as the new Owa of Odo Ayedun-Ekiti. The 16th Respondent was eventually installed as the new Owa, and so was joined along with others as Defendants at the lower Court.
The interested Parties/Appellants of Ogbimoyin Ruling House, the other Ruling House of the Owa of Odo- Ayedun Chieftaincy, were dissatisfied with the decision of the lower Court and therefore approached this Court with their Notice of Appeal filed on the 4th of
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October, 2018 with one (1) ground of appeal as contained in the Record of Appeal filed on 30th May, 2019, deemed properly filed on 4th December, 2019.
The lone Ground of Appeal without its particulars is as follows:
Ground One
The learned trial judge erred in law, when having nullified the appointment of the 16th Respondent as Owa of Odo Ayedun, consequently ordered that the Claimant/1st Respondent be installed as the Owa of Odo Ayedun.
The Appellants seek the following reliefs:
An Order setting aside the judgment of the lower Court, directing the installation of the 1st Respondent as the Owa of Odo Ayedun, that right of his Serungunle family to present a candidate having been extinguished by the nullification of the appointment of the 1st Respondent as Owa of Odo Ayedun -Ekiti.
An Order directing the 8th -11th Respondents to direct the members of the Ogbimoyin Ruling House to present a candidate to fill the stool of Owa of Odo-Ayedun Ekiti.
As demanded by the Rules of this Court, both parties filed briefs of Argument. The Appellant’s Brief of Argument is dated the 28th of May, 2019, but deemed properly filed on 4th December, 2019
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vide motion on Notice filed on 20th May, 2019. The 1st Respondent’s Brief of Argument is dated and filed the 5th day of December, 2019.
From the lone Ground of Appeal, the Appellants distilled one (1) issue for determination at page 5 of the Appellants’s Brief of Argument as follows:
Issue for determination:
“Having nullified the appointment of the incumbent Oba, whose appointment was successfully challenged by a member of his own Ruling House, whether it is not the turn of the Ogbimoyin Chieftaincy family of Odo-Ayedun Ekiti, to present a candidate to fill the stool of Owa of Odo- Ayedun Ekiti.”
The 1st Respondent adopted the lone issue formulated by the Appellants for determination from the ground of appeal as contained in the Notice of Appeal.
Appellants filed a Reply on points of law on the 13th of January, 2020.
The appeal was heard on the 12th day of March, 2020.
Mr. Olalekan Olatawura of counsel, who appeared with l. A. Omolade Esq, E.E. Nworie Esq, O. S. Ajayi Esq adopted the Appellants’s Brief of Argument and the Reply Brief and urged this Court to allow the appeal, and set aside the Judgment
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of the trial Court dated the 28th of June 2016. Dr. A. O Filani of learned counsel for the 1st Respondent, equally adopted the 1st Respondent’s Brief of Argument and urged this Court to dismiss this appeal. Folasade Abiodun Esq., appeared for 2nd -7th Respondents, she filed no brief. Olawale Fapohunda A. G. Ekiti State led S. B. J Bamise DCL, Julius Ajibare D.P.P, Tosan Odudu A.C.L.O, Ibironke Odetola P.L.O, Oluwaseun Olasanmi S.L.O for the 8th-11th Respondents. They filed no brief.
I now proceed to consider the issue arising for determination in this appeal.
Issue For Determination
“Having nullified the appointment of the incumbent Oba, whose appointment was successfully challenged by a member of his own Ruling House, whether it is not the turn of the Ogbimoyin Chieftaincy family of Odo-Ayedun Ekiti to present a candidate to fill the stool of Owa of Odo- Ayedun Ekiti.”
Arguing their issue, learned counsel for the Appellants submitted that the Owa of Odo-Ayedun Ekiti Chieftaincy is regulated by law, and has an existing Chieftaincy declaration made pursuant to Section 1(2) of the Chief’s Edict 1994, of Ondo State. See
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pages 357-359 of the record of appeal.
That the substantive law governing a cause of action is the law in force when the cause of action arose. He cited the cases ofObiuweubi v CBN (2011) 7 NWLR (PT1247) 465 @495; First Bank Plc v Anwana (2016) LPELR-41247 (CA); Alilonu v Njoku (2017) LPELR-42625
The substratum of the Appellants’ complaint relates to the refusal of the learned trial judge, to give effect to the Provision of Section 11 of the Chief’s Law, to which he made copious reference, in the course of his judgment, and thereby occasioned a miscarriage of justice. Learned counsel contended that the trial judge having declared the appointment, selection and nomination of Oba llesanmi Ajibade, the incumbent Owa of Odo-Ayedun, and the 16th Respondent null and void, the Court ought to have gone ahead to apply the provision of Section 11A, of the said law, to direct the Executive Governor to invite the next Ruling House to commence the process of installing a new Oba, the warring parties being from the same Ruling House.
This Court was invited by Appellants’ counsel to look at the records, which will show that not only was the 16th
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Respondent, Oba IIesanmi Ajibade installed as Owa of Odo-Ayedun Ekiti, he was officially presented with the instrument of office, by the Executive Governor of Ekiti State on 8th May, 2010. See pages 116-123 of the record of appeal. Learned counsel made the point that the 16th Respondent, having performed the functions of an Oba, having been installed and presented staff of office; his appointment consequently nullified by the Court, the only option left for the lower Court in the circumstances was to have followed the intention of the law to the letter, by directing that the next Ruling House of the Appellants’ be called upon to present a candidate to fill the stool, as it is settled law that when a statute provides for a way of doing a thing no other way is permissible. He cited the case of Okpalauzuegbe v Ezemenari (2011)14 NWLR (Pt 1268) 492 @524-525.
In his further submissions, learned counsel referred to Section 11A of the Chieftaincy Edict which will reveal that the word SHALL, as used twice in that Section depicts compulsion, the lower Court therefore had no discretion in the matter having annulled and nullified the appointment of the 16th
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Respondent as Owa of Odo-Ayedun Ekiti, to now proceed to order that the Executive Governor of Ekiti State commence the process of installing the 1st Respondent as Owa of Odo-Ayedun Ekiti. He cited the cases of Obong v Edet (2008) LPELR-8454 CA; Onochie v Odogwu (2006) LPELR-2689; Opara v Amadi (2013) LPELR-20747 SC; Bamaiyi v A.G. Federation & Ors (2001) 12 NWLR PT.727 468 @ 497.
Learned counsel further contended that the learned trial judge was in error when he directed that, the Ekiti State Government should commence the process of installing the 1st Respondent, who incidentally is from the same Ruling House as the Oba whose appointment was annulled. He submitted that the order of the learned trial judge was not only perverse, but has no basis in law, and ought to be set aside by this Court in this circumstance, he urged this Court to do so. He cited the case of Edet v Chagoon & Anor (2007) LPELR 8164 (CA); AC V INEC (2007) LPELR-66(SC), Lagos Sheraton Hotels and Towers v Hotel and Personal Services Senior Staff Association (2014) LPELR-23340(CA)
Premised on the above authorities, learned counsel urged this Court to allow this appeal, set aside
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the order directing the Executive Governor to commence the process of appointing the 1st Respondent as Oba of Odo- Ayedun, such pronouncement being arbitrary and contrary to the clear and unambiguous provisions of the Chief’s Edict of Ondo State law in the circumstances.
In his response on the issue for determination, 1st Respondent’s counsel reproduced Section 11 of the Chief’s Law of Ekiti State. He stated that:
1. The Ruling House whose turn it is to present a candidate for the filling of the vacant stool of Owa of Odo-Ayedun Ekiti is SERUNGUNLE.
2. The 1st Respondent was nominated to fill the vacant stool of Owa of Odo Ayedun on the 2nd of November, 2009.
3. The 1st Respondent had not performed the functions of the office of Owa of Odo-Ayedun, before his selection was cancelled by the 8th -11th Respondents.
4. The above provision of Section 11, can only apply to a person who has performed functions as such chief before his candidature for whatever reason was subsequently annulled.
Learned counsel elucidated the judgment at page 698 of the record, wherein the learned trial judge held that the purported
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cancellation of the appointment exercise of 2nd November, 2009, that produced the 1st Respondent as the candidate to fill the vacant stool of Owa of Odo Ayedun Ekiti was wrongful. He went further to say that cancellation was null and void in the circumstance. Also, the learned trial judge held that the appointment of warrant chiefs in the circumstance with regard to the meeting of 2nd November, 2009 was null and void. Also on page 698 of the record of appeal, the learned trial judge held that the selection exercise of 29th January, 2010 during the pendency of the 1st Respondents’s case, by the 2nd to 15th Respondents, was in contempt of the Court. The Court held further that the whole exercise, that is, the appointment of Warrant Chiefs, the second nomination exercise of 29th of January, 2010 and the appointment of the 16th Respondent was an exercise in futility.
The 8th, 9th, 10th and 11th Respondents i. e (i) Secretary, lkole Local Government (ii) special Adviser, Chieftaincy Matters (iii) Attorney-General and Commissioner for Justice and (iv) The Governor of Ekiti State agreed with the judgment of the lower Court. That was the reason why they did
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not appeal against the said judgment.
This Court in the sister case, Appeal No. CA/EK/27/2018: Pastor lsaac Aluko and 10 Ors v Prince Adeniyi Adekunle and 4 Ors, delivered on the 24th of June, 2019 affirmed the judgment of the lower Court.
Premised on the above judgment, learned counsel submitted that where a process is null and void, the law will presume that the process did not exist at all. He cited the cases of Ayanboye v Balogun (1990) 5 NWLR (pt 151) 392; Tika-Tore Press Limited v Abina (1973) 4 SC63 and Lahan v Lajoyetan (1972) 1 ALL NLR (PT2)217. Learned counsel urged this Court to hold that the process that produced the 16th Respondent did not exist at all. Consequently, the 1st Respondent has not ruled, talk-less of performing the functions of the Owa of Odo Ayedun. He contended that in law, nobody is allowed to benefit from illegal act. He cited the cases of Ekanem v Akpan (1991) 8 NWLR (pt 211) 616 and Adedeji v N.B.N Ltd (1989)1 NWLR (pt96) 212. He reiterated the fact that nobody should be allowed to benefit from a wrong process. The intention of the Appellants in this case is to reap from a process that was wrong, in violation of
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the law and in contempt of the Court. He cited again the case of Pastor lsaac Aluko and 10 Ors v Prince Adeniyi Adekunle and 4 Ors (supra) at page 23.
He urged this Court to resolve the lone issue in favour of the 1st Respondent.
In his reply on points of law, Appellants’ counsel referred to paragraphs 4.07 – 4.08 of 1st Respondent’s brief wherein, he argued that when a process is null and void, the law will presume that the process did not exist at all. He cited the cases of Ayanboye v BALOGUN (1990) 5 NWLR (PT151)392; Tika-Tore Press Limited V Abina (1973 4 SC 63 and Lahan v Lajoyetan (1972) 1 All N.L.R (PT2) 217. He further submitted that this Court having upheld that the process that produced the 16th Respondent as Owa of Ayedun having being nullified and voided, the 1st Respondent has therefore not ruled talk less of performing the functions of the office of Owa of Odo-Ayedun Ekiti, and as such nobody can be allowed to benefit from an illegal act, he cited the cases of Ekanem v Akpan (1991) 8 NWLR (pt 211) 616 and Adedeji V. N.B.N Ltd (1989) 1 NWLR (pt 96) 212.
Learned counsel simply responded to the cases cited by
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Respondents’ counsel as not advancing the arguments of the Respondents, therefore should be discountenanced. In that in all the cases cited, the Courts were not called upon to decide, neither did it adjudicate on or interpret any provision of any statute similar to or Section 11A, of the Chief’s Law of Ekiti State as in this case, and as such they are of no moment in the context of the issue submitted to Court, in this instance the interpretation of S.11A of the Chief’s Law of Ekiti. He cited the cases of Oni v Gov of Ekiti State (2019) LPELR-46413, Aizeboje v EFCC (2017) LPELR -42894 CA.
On the contention of the 1st Respondent, that the 1st Respondent having not ruled at all, and that the process that produced the 16th Respondent, having been declared null and void, the Provision of Section 11 of the Chief’s Law will not apply. Learned counsel submitted that 1st Respondent’s contention is nothing but an invidious and self serving interpretation of the clear and unambiguous wordings of Section 11A of the Chief’s Law.
He contended that the literal meaning ascribable to Section 11A, of the Chief’s Law as it
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relates to the peculiar facts of this case is that the 11th Respondent being from the same SERUGUNLE CHIEFTAINCY FAMILY as the 1st Respondent, the 11th Respondent having been nominated, selected, and ruled as Owa of Odo-Ayedun Ekiti, until the annulment of his selection on 28th June, 2016, it is the turn of the next Ruling House of the Appellants to present the next candidate to fill the stool.
Learned counsel appraised Section 11A of the Chief’s Law, and contended that the wordings of Section 11A of the Chief’s Law are clear and unambiguous, and such permits of no intrinsic or external aid in its interpretation as the 1st Respondent wants this Court to do by relying on case law. He cited the case of Skye Bank v lwu (2017) LPELR-118; Kraus Thompson Organization v NIPSS (2004) LPELR-1741(SC); Idika v Uzoukwu (2008) 9 NWLR (pt 1091) 34; Texaco Panama v SPDC Ltd (2002) LPELR-3146(SC); Ojokolobo v Alamu (1987) 3 NWLR (PT 61) 377; SETRACO NIG LTD V KPAJI (2017) LPELR-41506.
He urged this Court to allow this appeal relying on the Provisions of Section 15 of the Court of Appeal Act.
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RESOLUTION OF ISSUE FOR DETERMINATION
The fulcrum of Appellants’ complaint in this appeal, is that sequel to the judgment of the lower Court delivered on the 28th day of June, 2016, their Ogbimoyin Ruling House ought to have been called to nominate a candidate for the vacant stool of Owa of Odo- Ayedun, Ekiti. That the learned trial judge’s refusal to give effect to the Provisions of Section 11 of the Chief’s Law, of Ekiti State is ultra vires the law.
The Provisions of Section 11 of the Chief’s Law of Ekiti, states as follows:
“Where a Ruling House whose turn it is to present a candidate to fill a vacancy in accordance with the provisions of Section 8 of the law, had been so called and had undergone all the processes of selection prescribed under that section, and Section 8A, and was duly appointed to fill the vacancy, and performed functions as such Chief, before his candidacy for whatever reason was subsequently annulled, that person so appointed shall be deemed to have reigned and it shall be the turn of the next house to present a candidate to fill the vacancy, and where there is only one Ruling House, that Chief whose candidature has been nullified shall be
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deemed to have reigned and shall not be qualified to be considered again.”
The above Section is very explicit, in that it can only apply to a person who has performed functions as such chief, before his candidacy for whatever reason was subsequently annulled.
The learned trial judge summarized the 1st Respondents’ claim on page 694 of the record of appeal, that he was elected by the Kingmakers on 2/11/09, but along the line his election, and selection exercise leading to his election was cancelled by the Executive Council without just cause, and ordered a fresh exercise. It was the fresh or second exercise that produced the 16th Respondent, as Owa elect and that the 16th Respondent was subsequently enthroned as Owa. The learned trial judge, rightly noted that the 1st Respondent/Claimant filed this action in Court on 19/12/2009, and the second selection exercise was held on 29/1/2010 at a meeting of Kingmakers. The 1st Respondent/claimant had already filed Suit No HCL/12/0 as at 19/12/2009. As at that date, the Claimant was the Owa elect awaiting the approval of the Executive Council. The 1st Respondent did not participate in the
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second selection exercise held on 29/1/10.
The learned trial judge was right to deduce that, conducting the second selection exercise on 29/1/10, during the pendency of this case was in contempt of the lower Court. I agree with the correct findings of the learned trial judge which is the correct interpretation of the law, that the whole exercise i.e the appointment of Warrant Chiefs, the second nomination exercise of 29/1/10, and the appointment of the 16th Respondent from the circumstances of this case, and the evidence on record is nothing short of an exercise in futility.
The 16th Respondent was purportedly appointed or elected Owa Elect on 29/1/10 and his appointment was approved on 3/2/10. Five days after selection contrary to the provisions of Section 13(2) of the applicable Chief’s Law which stipulates 21days i.e. that approval shall not be given to any appointment within 21 days. The approval for the 16th Respondent was given on 3/2/10, which was much shorter than the period prescribed by the provisions of Section 13(2). The learned trial judge was right not to allow the approval and installation of the 16th Respondent as Owa
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of Odo Ayedun-Ekiti to stand. He rightly on correct principles of law declared the whole exercise leading to the selection, and installation of the 16th Respondent as Owa of Odo Ayedun -Ekiti, a nullity as same was embarked upon in contempt of Court, and in violation of the relevant provisions of the applicable Chief’s Law. The holding of the learned trial judge that the 1st Respondent, has established his case based on the pleadings and totality of evidence before the Court as to entitle him to the reliefs sought is unassailable.
Consequently, I resolve the only issue for determination against the Appellants.
This being the position, I find no cause to disturb the decision of the lower Court. In the circumstance, this appeal being unmeritorious is hereby dismissed.
The Judgment of the Ekiti State High Court delivered by Hon. Justice A. Adesodun on 28th, day of June, 2016 is hereby affirmed.
I assess costs at N50,000.00 in favour of the 1st Respondent.
THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I agree.
PAUL OBI ELECHI, J.C.A.: I agree.
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Appearances:
Mr. Olalekan Olatawura, with him, I. A. Omolade Esq., E. E.Nworie Esq. and O. S. Ajayi Esq. For Appellant(s)
Dr. A. O Filani – for 1st Respondent
Folasade Abiodun Esq. – for 2nd -7th Respondents
Olawale Fapohunda A. G., with him, Ekiti State led S. B. J Bamise DCL, Julius Ajibare D.P.P, Tosan Odudu A.C.L.O, Ibironke Odetola P.L.O and Oluwaseun Olasanmi S.L.O – for 8th -11th Respondents For Respondent(s)