Pa Salau Olanipekun & Anor. V. Prince Tunde Olanipekun & Anor. (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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.