PA SALAU OLANIPEKUN & ANOR. V. PRINCE TUNDE OLANIPEKUN & ANOR.
(2013)LCN/6313(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 19th day of June, 2013
CA/AK/102/2011
JUSTICES
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Court of Appeal of Nigeria
ALI ABUBAKAR B. GUMEL Justice of The Court of Appeal of Nigeria
CORDELIA IFEOMA JOMBO-OFO Justice of The Court of Appeal of Nigeria
Between
(1) PA SALAU OLANIPEKUN (The Head of Irara Chieftaincy Family, Ayase, Arigidi, Akoko)
(2) ALHAJI YISA OLANIPEKUN Appellant(s)
AND
1. PRINCE TUNDE OLANIPEKUN
2. MR. ALFRED OLORUNTOLA Respondent(s)
RATIO
WHETHER OR NOT ISSUES FOR DETERMINATION ARE FORMULATED FROM GROUNDS OF APPEAL
A decision in an appeal must be based on a proper determination of the issue(s) properly formulated from the valid and competent grounds of appeal thereto. Does it not mean that the issue to be determined in this appeal is not about mixed law and fact?
To answer this question, I must go to the basics. It is settled law that where a ground of appeal raised a question of law alone, it can be filed and argued without any leave first sought and obtained. See NAISA & TEAM ASSOCIATES V. N.N.P.C. (1991) 8 NWLR (Pt. 212) 652. Against this position of the law, ground one in this appeal, being a ground of law alone, would appear to have passed the test of acceptability and competence. PER GUMEL, J.C.A.
WHETHER OR NOT LEAVE OF COURT MUST BE OBTAINED TO FILE PARTICULAR GROUNDS OF APPEAL
It is also trite that failure to obtain leave of Court, where necessary to file particular grounds of appeal upon which an issue is raised for the resolution of the Court renders both such ground of appeal and the issue so formulated therefrom incompetent. See ADERIBIGBE v. ABIDOYE (2009) 10 NWLR (Pt.1150) 592 at 615. PER GUMEL, J.C.A.
WHETHER OR NOT THE APPELLATE COURT CAN FORMULATE ISSUES FROM COMPETENT GROUNDS OF APPEAL
According to the Supreme Court decision in EDEM V. CANNON BALLS LTD. & ANOR (2005) 12 NWLR (Pt.938) 27 where issues formulated in an appeal do not flow from the grounds of appeal filed, an appellate Court is entitled to formulate proper issues from valid and competent grounds of appeal. PER GUMEL, J.C.A.
ALI ABUBAKAR B. GUMEL, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the Ondo State High Court delivered on 25th July, 2011, in Suit No. HIK/102/2008.
The Appellants were respectively the 1st and 4th Defendants in the action filed by the within named 1st Respondent as the plaintiff. The substantive claim of the plaintiff/1st Respondent is predicated on a number of declaratory and injunctive reliefs on the 1989 Zaki of Arigidi – Akoko Registered Chieftaincy Declaration. The 2nd Respondent herein, as the 2nd Defendant, also counter-claimed substantially the same reliefs as those of the Plaintiff/1st Respondent.
In a motion on notice dated and filed on 28/10/2008, the plaintiff/1st Respondent, as the Applicant sought for the following 5 main reliefs. They are:-
“1. AN ORDER of this Honourable court retraining the first defendant/respondent from taking further steps towards the appointment of anybody as Zaki of Arigidi pending the final determination of the substantive suit.
2. AN ORDER of the Honourable Court restraining the second, third and fifth defendants/ respondents either by themselves or their agents from summoning and or holding the meeting of the kingmakers for Zaki of Arigidi Chieftaincy pending the final determination of the substantive suit.
3. AN ORDER of Court restraining the fifth defendant/respondent from sending the name of the fourth defendant/respondent to the sixth, seventh and eighth respondents for approval as Zaki of Arigidi.
4. AN ORDER of this Honourable Court restraining the sixth, seventh and eighth defendants/respondents from approving the name of the fourth defendant/respondent or any person whatsoever as Zaki of Arigidi pending the final determination of the substantive suit.
5. AN ORDER of Court restraining the fourth defendant/respondent from parading himself as Zaki of Arigidi pending the final determination of the substantive suit.”
This motion came up for hearing before the Lower Court on 3rd November, 2008. In the course of the proceedings of that day, the learned judge of the Court saw that some of the Respondents were not in Court and had not even entered appearance to the Suit of the Plaintiff/1st Respondent. And while some of the Respondents had filed a counter affidavit to this motion on notice.
Against this background, learned counsel to the plaintiff/1st Respondent made an oral application for an interim order to preserve the res until all the parties were properly before the Court for the motion. In what could be said to be out of abundance of caution, the learned judge of the Court below remarked and decided thus:-
“In the present circumstance, it will be necessary to adjourn this application to a further date to enable all parties to be in court and be heard. With my little experience on Chieftaincy matters in this jurisdiction, I am inclined to grant the application of Prince R. A. Olagunju for an order of this Court to restrain the parties in the interim from carrying out any appointment or election exercise into the vacant stool of Zaki of Arigidi until the determination of this mention on Notice. This is to avoid any breach of the peace or bloodshed in the affected community. All counsel should also advise their clients that once a case is in Court all parties must stop every exercise until otherwise directed by the court.”
As it later turned out the kingmakers of Arigidi – Akoko on 28th October, 2008 purportedly selected, declared and appointed the 2nd Appellant as the Zaki of Arigidi – Akoko. This purported action of the kingmakers was presented to the Ondo State Executive Council for approval. The said purported appointment of the 2nd Appellant was purportedly approved by the Ondo State Executive Council on the 5th November, 2008 pursuant to Section 11 of the Ondo State Chiefs’ Edict 1984.
In another motion on notice dated and filed on 7th July, 2010, the Plaintiff/1st Respondent sought for these 2 main reliefs. They are:-
“1. AN ORDER setting aside the appointment and approval of the 4th Defendant/Respondent as the Zaki of Arigidi by the 6th to 8th Defendants/Respondents having been made lis pendings and in flagrant violation of the extant order of this Honourable Court dated 3rd day of November, 2008.
2. AN ORDER OF INTERLOCUTORY INJUNCTION restraining the 4th Defendant/Respondent from further parading himself as Zaki of Arigidi Akoko or performing any function or duty ascribed to the chieftaincy stool of Zaki of Arigidi Akoko pending the final determination of the substantive suit.”
Learned Counsel to the 1st and 4th Defendants/Appellants joined issues with the Applicant by way of an 8 paragraph counter-affidavit dated and filed on 13th June, 2011. Also, the 5th to 7th Respondents to the motion filed a counter affidavit.
Issues having been duly joined on the application, the Lower Court began to take arguments and submissions on it from 11th April 2011. In the course of 3 sessions respective learned counsel argued and made submissions on behalf of the parties. In its well considered ruling, the Lower Court granted the reliefs sought in the application in terms.
The Appellants were dissatisfied with the decision of the Lower Court granting those 2 reliefs. They appealed to this Court in a notice of appeal dated and filed on 2nd August, 2011. This notice of appeal is predicated on 2 grounds of appeal with very generous particulars. In a notice of discontinuance dated 17/01/12 but filed on 20/01/12, this appeal was discontinued against the 3rd to 6th Respondents on the notice of appeal.
To argue the appeal, the Appellants filed an amended brief of argument dated 11th January, 2013. On behalf of the 1st Respondent, learned counsel filed-an amended brief dated 11/12/12. It was filed on 12/12/12. For the 2nd Respondent, learned counsel filed a brief of argument dated 29/11/11. It was filed on 12/12/12. Learned Counsel to the Appellants also filed respective reply briefs to the briefs of the 1st and 2nd Respondents.
In his amended brief of argument, learned counsel to the Appellants formulated and argued a single, issue for the determination of this appeal.
It is: –
“Whether the Learned Chief Judge of the High Court, Akure was right or not in setting aside the appointment of 2nd appellant ZAKI of Arigidi made by the Kingmakers to ZAKI stool and issuing an injunction against him having set aside quite appropriately the Approval of the appointment made by Ondo State Executive Council with effect from 5th November, 2008 in defiance of the Order of Court dated 3rd November, 2008.”
For the 1st Respondent, learned counsel also formulated and argued a lone issue for the determination of the appeal. It is:-
“Whether the order of the lower court setting aside the appointment of the 2nd Appellant as Zaki of Arigidi – Akoko and restraining him from parading himself as such is proper in the circumstance of this case. (Grounds 1 & 2)”
On behalf of the 2nd Respondent learned counsel also formulated and argued a single issue too, It is: –
“Whether the learned trial Chief Judge was right in setting aside the appointment of the second appellant and making an order of injunction restraining him (the second appellant) from parading himself as Zaki of Arigidi.”
During the hearing of the appeal on 29/04/13, all the briefs of the parties were, upon their respective applications, deemed, as properly filed and served. Thereafter learned counsel Mr. Omotosho for the 1st Respondent drew the attention of the court to a notice of preliminary objection he filed seeking to challenge the competence of this appeal. It is dated 18/3/2013 but filed on 19/3/13 and argued at pages 3 to 6 in the 1st Respondents’ brief of argument. Learned counsel to the 2nd respondent also drew our attention to an amended Respondent’s notice he filed seeking for an order to affirm the ruling of the Lower Court on other grounds.
In arguing the preliminary objection, Learned Counsel Mr. Omotosho, adopted and relied on all the submissions and arguments he made in his brief of argument and urged on the Court to uphold and find that both grounds of appeal are incompetent thereby a consequent want of jurisdiction on the part of this Court to entertain the appeal. He also urged that the appeal be struck out. In his response, learned counsel to the Appellants Mr. Fakunle, SAN, adopted and relied on the reply brief dated and fifed on 11/01/13 and urged on the Court to dismiss the preliminary objection and proceed to hear and determine this appeal on the merits.
In determining the notice of preliminary objection, I wish to start by setting out its basic parameters. The 3 grounds for the preliminary objection are:-
1. Both grounds of appeal are grounds of mixed law and facts;
2. Being an appeal against an interlocutory decision of the Lower Court, leave of Court was mandatory before an appeal can be filed by virtue of Sections 241(1) and 242 of the Constitution of the Federal Republic of Nigeria, 1999; and
3. The appeal is incompetent.
Before going into the submissions of respective learned counsel, let me set out the 2 grounds of appeal and their particulars. They are:-
“The Learned Chief Judge of the High court erred in law when His Lordship at an interlocutory stage and before trial, set aside the selection/appointment made by kingmakers of 2nd Appellant as a Chief nay Zaki of Arigidi, on the ground that the subsequent approval of the appointment give by the Executive Council of Ondo State was in defiance of an Order the High Court made ex parte directing that status quo be maintained.
PARTICULARS OF ERROR
(i) The Status quo in this case was that 2nd appellant was Zaki before the making of the application exparte for injunction and the grant of same on 3rd November, 2008 by Court.
(ii) The selection and appointment of a recognized Chief is guided by statute in Ondo State i.e. Chiefs Law Cap 20 Laws of Ondo State.
(iii) Section 15 directs that selection/appointment of a Chief and in this case Zaki is made by the kingmakers to the Chieftaincy stool. Approval of the appointment so made by kingmakers is made statutorily by the Executive Council of the State.
(iv) Selection/appointment made by the kingmakers of 2nd appellant to Zaki stool was not made in violation of the order of court dated 3rd November, 2008. Only the approval given to the appointment by Executive council of Ondo state under the hand of the Governor as Chairman is.
(v) Trial had not begun in this case and no evidence had yet been adduced in the case.
(vi) It may not be right in law for the Court to trial to set aside at an interlocutory stage the selection/appointment of 3rd defendant/appellant as Zaki without a proper trial first.
GROUND TWO
The learned Chief Judge of the High Court erred in law in making an order of injunction against 2nd appellant i.e. from parading himself as Zaki or performing duties associated therewith when the substantive suit before the Court is yet to be agitated by parties.
PARTICULARS OF ERROR
(i) The affidavit evidence presented by plaintiff/respondent did not depose to any fact which would have warranted the granting of an Order of such nature.
(ii) On the contrary, facts exist in the affidavit evidence presented by appellants as defendant at the High Court that 2nd appellant was selected and appointed Zaki a fact known to the whole Arigidi Community and the Plaintiff/1st respondent himself, long before the extant ex-parte order of court was made on the 3rd November, 2008.
(iii) After the delivery of the ruling, the Court adjourned the case for hearing when in essence there seems to be nothing left for the Court to decide since the substantive issues have been decided by the nature of the Order.”
In arguing the preliminary objection, learned counsel to Mr. Omotosho after stating the nature of the appeal and its factual background went further to set out the grounds of appeal in this appeal and all their particulars. According to learned counsel this appeal arose from the decision of the lower Court granting an order setting aside the approval of a purported selection and appointment of a traditional ruler. He typified this order as involving the exercise of a discretionary power. While focusing his attention on the grounds of appeal, Mr. Omotosho maintained that they are predicated on mixed law and fact. He referred to the cases of In Re RUFAI (1993) 5 NWLR (Pt. 291) 83 at 94 F and OPUIYO V. OMONIWARI (2007) All FWLR (Pt.378) 1093 at 1114 C-D to support his contention that the Appellants needed leave of this Court to appeal on grounds of mixed law and fact. He added that no such leave was sought and obtained by the Appellants. To the extent that the requisite leave was not sought and obtained both grounds of appeal remain incompetent and thereby depriving this Court of jurisdiction to entertain any appeal arising thereon. He urged on the Court to so hold and proceed to strike out this appeal for being incompetent.
In his reply learned counsel Mr. Fakunle SAN for the Appellant referred to the 1st ground of appeal and described it as a complaint on a misapplication of the law by the lower court to facts that had already been established. He maintained that it is a ground of law alone and no leave was required for an appeal to be brought on it, while referring to S.241(1) of the 1999 Constitution and the case of OGBECHIE v. ONOCHIE (1986) 2 NWLR (Pt.23) 484; Learned Senior Counsel urged on the Court to so hold. On the 2nd ground of appeal, the learned SAN described it as a complaint against the grant by the Lower Court of an order of injunction and to that extent, the appellants have an unfettered Constitutional right of appeal pursuant to S.241(1)(f)(ii) of the 1999 Constitution. He urged on the Court to so hold and dismiss the notice of preliminary objection for lacking in merit.
Learned Counsel to the 2nd Respondent did not react to the notice of preliminary objection in any manner whatsoever. Let me also add that learned Counsel Mr. Fakunle SAN, in a letter dated 30th April 2013, drew our attention to the case of EKWOMCHI V. UKWU (2002) 1 NWLR (Pt.749) 590 at 596.
In a very simple exercise, I looked at and read the 2 grounds of appeal in this appeal as set out hereinabove and also very generously reproduced by learned Counsel Mr. Omotosho. I also considered them with their respective particulars. Against this background, I am of the view that ground one, without any doubt, raises questions of law while ground two raises questions of fact. And because, learned counsel to the Appellants distilled a single issue for the determination of this appeal, it would appear that there is a dovetailing or fusion of the 2 grounds of appeal in the lone issue. A decision in an appeal must be based on a proper determination of the issue(s) properly formulated from the valid and competent grounds of appeal thereto. Does it not mean that the issue to be determined in this appeal is not about mixed law and fact?
To answer this question, I must go to the basics. It is settled law that where a ground of appeal raised a question of law alone, it can be filed and argued without any leave first sought and obtained. See NAISA & TEAM ASSOCIATES V. N.N.P.C. (1991) 8 NWLR (Pt. 212) 652. Against this position of the law, ground one in this appeal, being a ground of law alone, would appear to have passed the test of acceptability and competence.
It is also trite that failure to obtain leave of Court, where necessary to file particular grounds of appeal upon which an issue is raised for the resolution of the Court renders both such ground of appeal and the issue so formulated therefrom incompetent. See ADERIBIGBE v. ABIDOYE (2009) 10 NWLR (Pt.1150) 592 at 615. From this perspective, ground 2 of the grounds of appeal, being a complaint predicated on facts, could only have raised a question of fact alone. It needed leave of Court to be filed. No leave was sought and obtained before it was filed. It remains incompetent and to that extent ought to be struck out. It is accordingly struck out. The decision of this Court in UKWU (Supra) as urged on us by learned counsel Mr. Fakunle SAN that an interlocutory appeal on mixed law and fact is valid for all purposes pursuant to S.241(1)(f) of the 1999 Constitution is not a good argument or submission. That decision pertains to the 14 days requirement provided by S.15 of the Court of Appeal, Act, within which an interlocutory appeal ought to be brought. It did not decide on the competence of an interlocutory appeal brought upon a complaint on questions of mixed law and fact. I therefore find that decision totally unhelpful and inapplicable to the facts and circumstances of this appeal.
The preliminary objection succeeds in part. While ground one of the grounds of appeal is found to be valid and competent, ground 2 is struck out for being incompetent. According to the Supreme Court decision in EDEM V. CANNON BALLS LTD. & ANOR (2005) 12 NWLR (Pt.938) 27 where issues formulated in an appeal do not flow from the grounds of appeal filed, an appellate Court is entitled to formulate proper issues from valid and competent grounds of appeal.
I have carefully read and considered the issue formulated by learned counsel Mr. Fakunle SAN for the determination of this appeal. With the greatest respect, I find the formulation of this issue to be rather untidy and clumsy. It is poorly crafted and needs some panel beating. Bearing in mind the lone surviving ground of appeal, I am of the view that the only issue for the determination of this appeal should be:-
– Whether the learned Chief Judge of the High Court was right in setting aside the appointment and approval of the 2nd Appellant as the Zaki of Arigidi : Akoko.
In arguing this appeal, learned Counsel Mr. Fakunle SAN was quick to commendably concede a fundamental ground when he explained right from the beginning that the Appellants are not complaining against the order of the lower Court which set aside the approval of the appointment of Taki of Arigidi by the Governor of Ondo State on the 5/11/2008.
Mr. Fakunle SAN was also quick to explain further that the lower Court was right to preserve its order of 3/11/08 because the approval as made on 5/11/2008 was in defiance of a valid and subsisting order of a Court of competent jurisdiction.
While moving to the next level, learned counsel Mr. Fakunle SAN explained that the complaints of the Appellants arose from the order setting aside the appointment of the 2nd Appellant by the kingmakers pursuant to S.15 of the Chiefs Law of Ondo State. According to the learned SAN, the appointment and approval of the office of a Chief or Oba under S.15 of the Ondo State Chiefs taw 1984 is not a single process. He added that the selection and appointment is one process while the approval by the State Executive Council is yet another process. He referred to and supported his arguments with the decision of the Supreme Court in ADEFULU & ORS. V. CHIEF OKULAJA & ORS. (1996) 12 SCNJ 136 at 146 where S.15 of Ogun State chiefs Law was interpreted. He pointed the S.15 of Ogun State law is pari materia to S.15 of the Ondo State Law. He argued further that while S.15 deals with the appointment of a Chief or Oba, S.20 provides for the approval of the appointment by the State Executive Council
Upon the foregoing explanations, the learned SAN submitted that the lower Court was wrong when it set aside the appointment of the 2nd Appellant by the kingmakers as the Zaki of Arigidi in addition to setting aside the approval of it. He also faulted the reliance on S, 3 of the Chiefs Law of Ondo State 1984, by the lower Court as enabling it to do as it did. He referred to ADEDOLAPO V. MILITARY GOV. OF ONDO STATE (2005) 17 NWLR (Pt. 955) 487 where this Court held that S.3 has no effect on the powers exerciseable by the kingmakers under S.15 thereof.
He urged this Court to so hold and resolve this issue in favour of the Appellants.
In his response, learned Counsel to the 1st Respondent, Mr. Omotosho was quick to acknowledge the generous concession of learned Counsel Mr. Fakunle SAN but added that the distinction being made between appointment and approval of the 2nd appellant as the Zaki of Arigidi Akoko does not exist and any contention to that effect must remain a total misconception of the law. He also relied on ADEDOLAPO (Supra) where it was held that until the approval is made the appointment of a Chief or Oba remains inchoate and yet to be completed. He urged the Court to discountenance all the submissions of Mr. Fakunle SAN on the distinction between the 2 processes of appointment and approval.
In his response, learned counsel to the 2nd Respondent, Mallam Gani Ashiru began by giving a rundown of some of the processes filled in Suit No. HIK/20/2008 and the dates they were served as well as some of the steps the parties herein and the lower Court took at various stages of this matter during its early days. Learned counsel also set out what may be considered as his interpretation and understanding of some events up to the decision and orders leading to this appeal. Learned Counsel was very elaborate in his highlighting and analysis of some of the affidavit evidence on record.
Bearing in mind that this is merely an interlocutory appeal, I feel very uncomfortable reading some of the arguments and submissions of Mallam Ashiru, of Counsel. I therefore took solace in warning myself to distant this Court from so many of those submissions of learned counsel. Suffice it to say that, by his amended Respondent’s notice, learned counsel urged on the Court to uphold and affirm the decision of the learned trial Chief Judge on the further ground of the doctrine of Lis Pendens.
In his reply to the brief of the 2nd Respondent, learned counsel Mr. Agbonika on behalf of the Appellants was also not circumspect enough. He took steps to reply, Mallam Ashiru point by point. I will therefore not bother to go into the details, suffice it to say that learned Counsel.
Mr. Agbonika urged on the Court to discountenance the Respondent’s notice for being a total misconception and lacking in substance.
Having considered all the relevant facts in the circumstances of this appeal, it does not appear to me that there is any difficulty in this appeal because respective learned Counsel have been so helpful to themselves having, in my view, fully come to terms with the facts on the ground. This is so because this appeal is being argued on a very narrow compass. The key and material facts are not largely in dispute.
The precursor event that may be termed as catalytic and central in this appeal is the order of the lower Court made on 3/11/2008. None of the parties challenged the order being made and so far remain unchallenged since it was made. It was the order of a Court of competent jurisdiction. It must be enforced and obeyed while it remains subsisting.
By virtue of the Instrument of Appointment Exh. GB1, the selection and declaration of Prince Yisa Abu Olanipekun (2nd Appellant) to be the holder of the Ruling House Chieftaincy of the Zaki of Arigidi by the kingmakers was made on 28/10/08. This appointment was notified to the Ondo State Government. There is nothing whatsoever on record to contradict these sets of facts. While learned Counsel Mr. Fakunle SAN believed that this state of affairs is not affected by the Order of 3/11/2008 and must be preserved, the learned trial Chief Judge and the Respondents hold contrary views. In its ruling under review, the lower Court set aside whatever was done on 28/10/2008 and the approval that was made on 5/11/2008. Upon a calm consideration of the facts and circumstances in the case of ADEDOLAPO (Supra) and the decision of this Court on the matter, there is no doubt that whatever was done by whoever on 28/10/2008 was not affected by the order of 3/11/2008 and must therefore remain intact and cannot be touched.
All the arguments and submissions of learned Counsel Mallam Ashiru on the amended Respondent’s notice were built on mere conjectures, speculations and bad guesses on the date of actual service of some of the Court processes on the Appellants. No proof of service has been placed before this Court to show that all was based on sound and established facts and not mere speculations. I hold and believe that there is need to avoid undue technicalities and hairsplitting in this appeal. Reliance must be placed on solid and established facts. One should also remain fully mindful of what was operating on the mind of the learned trial judge when he made the order of 3/11/08 it was avoid breach of peace and possible bloodshed.
It is against this background that I reiterate the decision of this Court in ADEDOLAPO (Supra) that the appointment of a Chief/Oba remains inchoate until after its approval by the State Government. That approval is the final seal of authority that allows for a Chief/Oba to function in that behalf. While the approval given on 5/11/08, and as conceded by Mr. Fakunle SAN, must be set aside as having been wrongly made against a valid and subsisting order of a Court of competent jurisdiction, the setting aside also of whatever was done by whosoever on the 28/10/2008 cannot reasonably be said to have been made against the order of 3/11/08. It must therefore remain valid and intact. I accordingly so hold.
Relief 5 on the motion of 28/10/2008 sought for:-
An order of Court restraining the 4th Defendant/Respondent from parading himself as Zaki of Arigidi pending the final determination of the substantive suit.
Also relief 2 on the motion of 7/7/2010 seeks for:-
An order of interlocutory injunction restraining the 4th Defendant/Respondent from further parading himself as Zaki of Arigidi – Akoko or performing any function or duty ascribed to the Chieftaincy stool of Zaki of Arigidi – Akoko pending the final determination of the substantive suit.
Because of the order setting aside the approval in Exh. GB1 no Zaki of Arigidi – Akoko has in law been appointed. While whatever was done on 28/10/2008 by whosoever and for whatever purpose remains valid it did not culminate into or amount to an approval for any person to perform the statutory functions of the Zaki of Arigidi. It therefore appears to me to be within the competence of the learned trial Chief Judge to grant relief 2 on the motion of 7/7/2010, having validly and correctly set aside the approval in Exh, GB1 made on 5/11/2008. The 2nd appellant is therefore rightly restrained in terms of relief 2 above, The amended Respondent’s notice is struck out.
This appeal succeeds in part and it is allowed in part. That part of the order of the lower Court setting aside the events of 28/10/2008, whatever effect such events or exercise may have been was made in error and it is hereby set aside. Whatever was done by the kingmakers or whosoever as it affects the parties herein on the 28/10/2008 is not affected by the interim order of 3/11/2008 and is hereby preserved and maintained as the status quo ante bellum. The order of the learned trial Chief Judge restraining the 2nd Appellant in terms of relief 2 is hereby affirmed and upheld. Suit No. HIK/20/2008 is hereby ordered to be heard by another Judge of the High Court of Ondo State, other than Kumuyi, C.J, It is also ordered that Suit No. HIK/20/2008 should be expeditiously heard and determined. No order for costs.
PRONOUNCEMENT BY ALI ABUBAKAR B. GUMEL, J.C.A.: My learned brother K.M.O. Kekere-Ekun, JCA presided the panel at the hearing of this appeal. He subsequently participated at the conference that led to the judgment just delivered by me. He agrees that this appeal be allowed in part and also abide by all the consequential orders in the lead judgment.
CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I had the privilege of reading in draft the lead judgment of my learned brother, Ali A.B. GUMEL, JCA just delivered. I agree entirely with all the reasoning and conclusions of His Lordship. I adopt them as mine.
I abide by all the consequential orders of His Lordship as well as the order regarding cost.
Appearances
Mr. O. O. Fakunle SAN with Mr. A. L. Saliu,
Miss O. O. Olabiwonnu and Miss Y. O. FalayanFor Appellant
AND
Mr. F. Omotosho with Mrs. Yetunde Ademogoke and
Mr. O. S. Olonimoyo for the 1st Respondent.
Mallam Gani Ashiru with Mrs. A. Akinjobi for the 2nd AppellantFor Respondent
