In The Court of Appeal of Nigeria
On Friday, the 3rd day of February, 2017
Before Their Lordships
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
MISITURA OMODERE BOLAJI-YUSUFF Justice of The Court of Appeal of Nigeria
IGWE N.A.U. ACHEBE
(OBI OF ONITSHA) –Appellant
1. CHIEF A.C.I. MBANEFO
(MBANEFO ODU III OF ONITSHA)
2. AKUNWATA ONYEACHONAM OKOLONJI –Respondents
JOSEPH TINE TUR, J.C.A. (Delivering the Leading Judgment): Chief A.C.I. Mbanefo (Odu III of Onitsha) instituted this suit against (1) Igwe N.A.U. Achebe (Obi of Onitsha) and (2) Akunwata Onyeachonam Okolonji in the High Court of Anambra State, in the Onitsha Judicial Division holden at Onitsha on 25th February, 2005. The writ of summons was accompanied with a statement of claim. Paragraphs 37 to 42 of the statement of claim sought the following reliefs against the 1st and 2nd defendants to wit:
37. The plaintiff avers that by Onitsha law and custom he (the plaintiff) has not been, and cannot lawfully be, removed as NDICHIE UME and ODU OSODI of Onitsha as the 1st defendant purported to have falsely asserted per the document pleaded in paragraph 36 (supra) or howsoever.
38. The 1st and 2nd defendants, acting in connivance with each other and persons unknown, have purported to assert and hold out the 2nd defendant as ODU OSODI of Onitsha contrary to Onitsha native law and custom. The plaintiff hereby pleads a document titled IME OBI’S REPORT/DECISIONS ON THE RECENT OZO TITLE TAKING BY CHINELUGO DENNIS CHUKWUBEBE’S TWO SONS IN UMUEZEAROLI VILLAGE ONITSHA dated 30th August, 2004 and purportedly and erroneously co-signed by the 2nd defendant purporting to describe himself as ODU-OSODI.
39. It is contrary to Onitsha native law and custom for the defendants to have purported to have installed, and/or connived at the installation of the 2nd defendant as ODU OSODI of Onitsha during the life-time of the duly installed and recognized ODU OSODI I of Onitsha in the person of the plaintiff.
40. By overt acts the defendants have demonstrated unwholesome intention wrongfully to pretend and/or purport to oust the plaintiff from his legitimate traditional seat and title for life as NDICHIE UME ODU-OSODI, ODU MBANEFO III of Onitsha.
41. The defendants intend unless restrained by order of Court to continue with their wrongful acts of unlawfully excluding and/or precluding the plaintiff from enjoying and exercising his rights and privileges as ODU of Onitsha for life.
42. The plaintiff has suffered damage and loss wherefore the plaintiff claims against the defendants as follows:
(a) A declaration that under Onitsha native law and custom
the plaintiff is, and was, duly and properly installed and initiated into the vacant seat of ODU OSODI of Onitsha in 1994.
(b) A declaration that under Onitsha native law and custom the plaintiff is entitled to occupy the traditional office of ODU OSODI of Onitsha and the traditional rank of NDICHIE UME and NDICHIE UKPO for life.
(c) A declaration that under Onitsha native law and custom the plaintiff as ODU OSODI, NDICHIE UME and MBANEFO ODU III is entitled to enjoy and exercise the rights and other privileges, power and benefits accruing therefrom to the exclusion of all and sundry.
(d) A perpetual injunction restraining the defendants jointly and severally from interfering with, and/or continuing to obstruct, interfere with, deny or howsoever preclude, the plaintiff in the exercise and/or enjoyment of the rights, privileges, powers and other benefits accruing to the traditional office and rank of ODU OSODI, NDICHIE UME, NDICHIE UKPO, MBANEFO ODU III under Onitsha native law and custom.
(e) A declaration that the purported installation by the 1st defendant of the 2nd defendant as ODU OSODI of Onitsha in the life time of the plaintiff as
the incumbent of that traditional office and title is illegal, inconsequential, null and void and contrary to Onitsha native law and custom.
(f) A perpetual injunction restraining the 2nd defendant from parading himself as ODU OSODI of Onitsha and/or purporting howsoever to act in that capacity.
(g) A perpetual injunction restraining the 1st defendant from holding out the 2nd defendant as ODU OSODI of Onitsha.
The 1st defendant’s statement of defence was filed on 6th April, 2015. Paragraphs 29 to 31 of the 1st defendant’s statement of defence pleaded as follows:
29. 1st defendant denies paragraphs 37, 38, 39, 40 and 41 of the statement of claim and puts the plaintiff to the strictest proof thereof. In further answer thereto, 1st defendant acted within his rights as the Obi of Onitsha in destooling the plaintiff, and accordingly the 2nd defendant as the Odu Osodi, is entitled to and has been for nearly one year exercising fully the functions of that office to the great delight and relief of the people of plaintiff’s geopolitical units as well as all Onitsha people within the kingdom of the 1st defendant.
30. But for the intervention of the police the plaintiff would have encouraged one of his henchmen in the person of Amalunwaeze Odukwe to proceed to the Udo Shrine on the 19th day of March, 2005 where the said Amalunwaeze Odukwe hoped to be crowned as the 2nd King of Onitsha the worst of abominations.
31. The plaintiff’s action is baseless, an abuse of Court process and ought to be dismissed.
The 2nd defendant, Akunwata Onyeachonam Okolonjis statement of defence was filed on 6th April, 2005. This statement of defence was amended in due course to include a counter-claim on 8th March, 2006. Paragraphs 47 to 52 of this Amended Statement of Defence/Counter-Claim pleaded the following facts:
47. Paragraphs 37 and 39 of the statement of claim are denied. Under Onitsha Native Law, Custom and Traditional any Ndichie or Agbalanze who desecrates the land by committing ALU, ALU MKPI or OTOLOLO can and will be removed by a General Assembly of the constituent components of Onitsha and that was what was done in this case. Furthermore, for over 4 years the plaintiff has failed to perform any of the duties attached to anNdichie Ume and has never attended the Traditional Council of the 1st defendant.
48. Paragraphs 38 and 40 of the statement of claim are not correct the 2nd defendant is the Odu of Onitsha, de facto and de jure he has been attending to his functions attending Ime Obi meetings, Na Ka Ozu in his section and officiating at the Traditional Ime Obi Court without any interference from the plaintiff or anyone at all. He has carried out Umatu, Iwaji, Ogbalido, been to Ofala festival and attends Ozo title taking ceremonies in his capacity as the Odu of Onitsha. He has been signing documents including judgments of Ime Obi Traditional Council.
49. The plaintiff has been ousted by the people of Onitsha as Odu of Onitsha, ousted as Ndichie Ume for reasons advocated earlier. What happened on the 8th and 9th day of July, 2004 is a manifestation of:
(i) The will of God being supreme.
(ii) That destiny could be delayed but not denied.
(iii) Good will always triumph over evil.
It happened to Oba Oyekan of Lagos, and Sultan of Sokoto Muhammadu Maccide.
50. Paragraphs 41 and 42 of the statement of claim are denied. Nnabuenyi Arthur
Izuegbunam Mbanefo is a former or ex-Odu of Onitsha. He has been found WANTING and has been REMOVED.
(a) He was not duly and properly installed and initiated into the Odu Stool in 1994.
(b) An Ndichie retains his stool/rank during good behaviour.
(c) Once an Ndichie commits a coup, treasonable felony, ALU, ALU MKPI or OTOLOLO he is removable and loses his rights, privileges, powers and benefits accruing therefrom.
(d) Powers, rights, privileges and benefits of an Ndichie come from the people he represents. Onitsha having rejected Nnabuenyi Arthur Izuegbunam Mbanefo he can not in any way be assisted to restrain the defendants who are representatives of the Onitsha people.
(e) 1st defendant, Obi of Onitsha can do no wrong. He is Agu, Agbogidi, Otigbu Onye Mbosi Ndu na aguya, Ome Abu Nso.
(f) 2nd defendant, Chief Aniekweogu Onyeachonam Okolonji is the present and reigning Odu of Onitsha and Nnabuenyi Arthur Izuegbunam Mbanefo will do well to accept NEMESIS and stop parading himself as the Odu of Onitsha.
(g) The 1st defendant’s powers and privileges in Traditional matters affecting Onitsha and Onitsha citizens can not be
fettered, curtailed or controlled by outside authorities as happened in the year 1994 to Igwe Ofala Okagbue by the machinations of the plaintiff.
51. The second defendant repeats and adopts each and every fact averred in paragraphs 3-50 inclusive of the statement of defence and will at the trial seek the following reliefs:-
(a) A declaration that the installation and conferment of the Ndichie Ume office of Odu Osodi Nkata Ukwu of Onitsha on the 2nd defendant was done in accordance with the customs/traditions of Onitsha Community.
(b) An injunction restraining the plaintiff from parading and/or further parading himself as Odu Osodi III of Onitsha or in any manner whatsoever interfering with the functions/privileges due to the 2nd defendant as holder of that office.
52. In the circumstances, the plaintiff’s claims are baseless and ought to be dismissed.
In the course of proceedings the learned trial Judge, acting on the application of Chief A.C.I. Mbanefo rendered this ruling on 21st July, 2005 which is now the subject of this appeal by the 1st defendant whom I shall henceforth refer to as the appellant in this appeal. The ruling is at page 344 of the printed record. The Notice of Appeal is at pages 181 to 187 of the printed record.
The appellant filed a brief on 23rd April, 2007 and a reply brief which was deemed properly before this Court on 8th April, 2007. The 1st respondent’s brief was filed on 30th May, 2007. The briefs were adopted by the learned silk when the appeal came up for hearing on 3rd November, 2016. The appellant formulated the following issues for determination at page 3 paragraphs 3.01 to 3.02 to wit:
1. Was the 1st defendant/applicant/appellant given fair hearing in accordance with Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria?
2. Is a Judge not duty bound to hear motions which are properly before him?
The 1st respondent distilled the following issues for determination at page 7 paragraph 3.5 of the brief is couched as follows:
Whether there was dismissal of, and/or refusal to hear, the appellant’s motion on 20th March, 2006 and, if so, whether the appellant’s right to fair hearing was violated? (Grounds A, B and C).
Order 18 Rules 3(1)-(4) and 4(1) and (2) of the Court of Appeal Rules, 2011 provides as follows:
3(1) The brief, which may be settled by counsel, shall contain an address or addresses for service and shall contain what are in the appellant’s view, the issues arising in the appeal as well as amended or additional grounds of appeal.
(2) Where possible or necessary, the reasons in the brief shall also be supported by particulars of the titles, dates and pages of cases reported in the Law Reports or elsewhere including the summary of the decisions in such cases, which the parties propose to rely upon. Where it is necessary, reference shall also be made to relevant statutory instruments, law books, and other legal journals.
(3) The parties shall assume that briefs will be read and considered in conjunction with the documents admitted in evidence as exhibits during the proceedings in the Court below, and wherever necessary, reference shall also be made to all relevant documents or exhibits on which they propose to rely in argument.
(4) All briefs shall be concluded with a numbered summary of the points to be raised and the reasonsupon which the argument is founded.
(5) Except to such extent as may be necessary to the development of the argument, briefs need not set out or summaries judgments of the lower Court, not set out statutory provisions, nor contain an account of the proceedings below or of the facts of the case.
4(1) The respondent shall also within thirty days of the service of the brief for the appellant on him file the respondent’s brief which shall be duly endorsed with an address or addresses for service.
(2) The respondent’s brief shall answer all material points of substance contained in the appellant’s brief and contain all points raised therein which the respondent wishes to concede as well as reasons why the appeal ought to be dismissed. It shall mutatis mutandis; also conform to Rule 3 (1), (2), (3), (4) and (5) of this Order.
Arising from a combined reading of the above provisions is the fact that the duty of the appellant is to appeal and distill the issues for determination from the grounds of appeal. Both the grounds of appeal and the issues for determination must arise from the pleadings and the ratio decidendi of the learned trial Judge.
The duty of the respondent who did not cross-appeal nor filed a Respondent’s Notice is to answer all the material points raised in the appellant’s brief of argument showing why the appeal should be dismissed.
Issues that overlap may be merged and determined by this Court so as to have a main decision that will determine the actual cause of the controversy that led the appellant to appeal the decision. See Anie vs. Uzorka(1993) 8 NWLR (Pt.309) 1 at 16-17.
The parties and their respective Counsel are to assume that the Justices read the proceedings and the briefs of argument in order to render a decision or an opinion. That being the case I shall adopt the procedure set down by the Privy Council in Ijale vs. Shonibare, Privy Council Judgments (1941-1973) by Olisa Chukura, SAN, 1980edition, page 947 where Lord UpJohn held at page 948 as follows:
???There were many issues of fact before the trial Judge but only one relevant to this appeal, namely, an important issue as to the existence of a ledger or produce book alleged to belong to the appellant which the respondent said, would contain entries relating to the
transaction and would establish his case. The appellant denied the existence of any such book and the trial Judge decided this issue in his favour. The Federal Supreme Court differed from the trial Judge fundamentally in holding that this ledger or produce book must be in existence. Therefore it followed, as the appellant had not produced it, that the inference must be drawn that its production would prove unfavourable to him. On this ground they allowed the appeal.
In these circumstances some review of the evidence by their Lordships is necessary but they propose only to review the pleadings and evidence relating to this question and in no wise to cover the many other matters which were in controversy before the trial Judge, but did not arise on the appeal before the Federal Supreme Court or before their Lordships.
Also in Odutola Holdings Ltd. & Ors. vs. Mr. Kunle Ladejobi & Ors. (2006) 5 SCNJ 63, Ejiwunmi, JSC held at pages 79-80 to wit:
Against the reversal of this decision, the appellants have raised several issues which I have reiterated above already. But in my humble view, not all the issues raised are necessary for the determination of the appeal. This is because several of the issues raised by the appellants and which the Court below made pronouncements upon did not flow from the ruling given by the trial Court in respect of the application brought before it by the respondents.
After a careful perusal of the judgment of the Court below, the grounds of appeal filed against that decision and the subject matter of the application that led to the ruling of the trial Court, it is my respectful view that the only issue that are germane to this appeal are the 1st and 5th issues filed by the appellants. As the issues raised by the respondents are not dissimilar, they will be considered in the light of the arguments advanced in the consideration of the merits of the appeal.
I intend to rely on the issues formulated by the appellant in order to determine this appeal. But I shall draw attention to the argument of the learned silk representing the appellant as set down in paragraph 2.01 at pages 2 to 3 paragraph 2.10 of the appellant’s brief to wit:
Suit No.O/109/2005 Chief A.C.I. Mbanefo vs. Igwe N.A.U. Achebe and 1 Or. was taken out on the 25th day of February, 2005. By the 6th day of April, 2005 pleadings between parties have been filed and exchanged and the suit ready for hearing before Hon. Justice P.N.C. Umeadi. By the 2nd April, 2005 1st defendant’s Motion for striking out the substantive suit was already filed and served before the suit was transferred to Hon. Justice J.C. Nwadi.
The motion directly in issue in this appeal is 1st defendant/applicant/appellant’s motion dated 15th day of March, 2006 and filed on the same day. The motion was brought as a result of Hon. Justice J.C. Nwadi entertaining plaintiff/respondent’s (herein) motion for interlocutory injunction on a day it was not fixed. My Lords, suffice to say that the conduct of the learned trial Judge is the subject of Appeal No.CA/E/175/2006 Mbanefo vs. Achebe which is also before you. Following the moving of plaintiff’s motion for interlocutory injunction by learned Senior Advocate for the plaintiff, the defendants asked for an adjournment to enable them reply. Please see page 353 of the records paragraphs 2 and 3.
On the 15th of March 1st defendant/applicant/appellant filed the 4 prayers motion.
Same was served on the plaintiff/respondent as well as 2nd defendant/respondent.
On the 20th day of March when the matter was called, Counsel for 1st defendant/applicant/appellant brought to the notice of the Court that there was a pending motion before the Court, that it was ripe for hearing. The motion on Notice, affidavit in support, written address and List of authorities can be found at pages 242-257 of the records.
Hon. Justice J.C. Nwadi refused to hear the motion which was properly before him, refused to take down the address of Counsel for the 1st defendant/applicant/appellant and summarily dismissed same without a hearing.
A perusal of the records from page 353 to page 360 will show that no mention of the said motion was made, showing that the motion was not heard, and was not adjourned. On the 12th day of April, Hon. Justice J.C. Nwadi in delivering his Ruling on interlocutory injunction therein alluded to the motion on notice dated 15th March, 2006 at page 362 paragraph 3 to page 363 paragraph 1 of the records.
The 1st respondent set down the facts that transpired in the Court below at page 2 paragraph 2.1 to page 6 paragraph 2.15 as follows:
???For a proper appreciation of the arguments canvassed on the issues distillable in the instant interlocutory appeal, the pertinent facts of the case may be briefly summarized as follows:
The plaintiff/respondent sued the 1st defendant/appellant and the 2nd defendant/respondent in Suit No.O/109/2005 for the wrongful act of the 1st defendant/appellant purporting clandestinely to install the 2nd defendant/respondent as the ODU OSODI of Onitsha during the incumbency of the plaintiff/respondent as ODU OSODI and in breach of the native law and custom of Onitsha.
The action in Suit No.O/109/2005 is in personal capacity. Simultaneously with the commencement of the said suit on 25th February, 2005 the plaintiff/respondent brought a motion on Notice for interlocutory injunction restraining the defendant in terms of the prayers therein sought. The said motion at pages 19 to 26 of the record was initially fixed for hearing on 25th April, 2005 before Hon. Justice Umeadi, J. But before the hearing date the case was transferred to Honourable Justice J.C. Nwadi for reasons or grounds undisclosed to the plaintiff/respondent.
With the commencement of the said action the plaintiff/respondent filed his statement of claim see pages 4 to 11 of the record. After entering an appearance the 1st defendant/appellant filed his own statement of defence on 6th April, 2005 (see pages 31 to 43 of the record) coincidentally with the statement of defence of the 2nd defendant/respondent at pages 44 to 53 of the record.
On 18th April, 2005 the 1st defendant/appellant reacted to the motion for interlocutory injunction by filing a Counter-Affidavit and written address at pages 54 to 65 of the record. On 22nd April, 2005 the 2nd defendant/respondent also filed his own Counter Affidavit and written address at pages 76 to 125 of the record.
On 22nd April, 2005 the 1st defendant/appellant brought a motion on Notice (with no return date q.v. pages 66 to 71 of the record) seeking stay of further proceedings in the substantive suit and also challenging the competency of the said suit. On the same day the 2nd defendant/respondent reacted to the motion for interlocutory injunction by filing his own Counter Affidavit and Written Address. Due to the peripheral nature of the orders sought in the
motion earlier brought by the 1st defendant/appellant challenging the competency of the plaintiff’s action Hon. Justice J.C. Nwadi, J., to whom the case was meanwhile transferred by order of the State Chief Judge decided, with the consent of Counsel for all the parties, to first hear the said motion.
On 21st July, 2005 the lower Court delivered its Ruling dismissing the said motion referred to in paragraph 2.8 (supra). Counsel for the plaintiff/respondent called the attention of the lower Court to the undisposed motion for interlocutory injunction specified in paragraph 2.5 (supra) and suggested that it might be better if the substantive suit were proceeded with since pleadings had been filed and exchanged. Learned Counsel for the 1st defendant/appellant reacted to the said suggestion by asking Counsel for the plaintiff/respondent to make up his mind whether to withdraw the said motion or not. Learned Senior Counsel for the 2nd defendant/respondent opined that the suggestion by Counsel for the plaintiff/respondent was tantamount to withdrawal of the motion under reference. However, the lower Court was firmly of the view that the Court ought to allow the Counsel for the plaintiff/respondent time to make up his mind whether to withdraw the said motion or not; and so ruled.
Immediately thereupon the learned Senior Counsel for the 2nd defendant/respondent moved his motion at pages 154 to 170 of the record for leave to amend the 2nd defendant’s statement of defence. This was granted without objection. Thereupon 2nd defendant/respondent filed his amended statement of defence with counter-claim at pages 232 to 241 of the record.
The 1st defendant/appellant appealed against the order dismissing his preliminary objection by his Notice of Appeal dated 29th July, 2005 (see pages 181 to 188 of the record). He followed up the said Notice of Appeal with another motion on Notice dated 14th February, 2006 praying for stay of further proceedings q.v. pages 199 to 222 of the record. At the end of the proceedings on 21st July, 2005 the case was formally adjourned to 2nd and 3rd November, 2005 for motion or hearing of the substantive suit see page 244 lines 17 to 19 of the record. The next hearing date was on 21st February, 2006 due to intervening public events.
On 21st February, 2006 the 1st defendant/appellant moved his motion aforementioned. This application was contested and Ruling thereon was adjourned to 8th March, 2006 when it was delivered with an order of dismissal of the said application.
On 8th March, 2006 after the said Ruling was delivered Counsel for the plaintiff/respondent reminded the lower Court of the long-outstanding motion for interlocutory injunction aforesaid and begged to move. He was permitted to move the application. Thereafter Counsel for the 1st defendant/appellant and 2nd defendant/respondent were, on their application, granted an adjournment to 20th March, 2006 to respond to the argument already canvassed in support of the application for interlocutory injunction.
By a motion on Notice dated 15th March, 2006 (with no return date) q.v. pages 242 to 257 of the record, learned Counsel for the 1st defendant/appellant prayed the lower Court for stay of proceedings and for an order expunging Counsel’s submissions in support of the application for interlocutory injunction. Also prayed for is an order setting down the said application for interlocutory injunction for argument afresh. This further
application for stay was belittled by Counsel for the plaintiff/respondent. Learned Senior Counsel for the 2nd defendant/respondent also indicated his willingness to argue his response to the argument for interlocutory injunction. The lower Court directed the Counsel for the defendant/appellant to argue in opposition to the application for interlocutory injunction. Both Counsel submitted their respective arguments accordingly. Thereafter Ruling was reserved for 27th March, 2006. It was however delivered on 28th March, 2006 due to intervening public holiday.
I shall refer to the proceedings of the learned trial Judge which has culminated into this appeal as recorded from pages 354 to 359 of the printed record to wit:
20th Day of March, 2006.
Plaintiff is present
2nd defendant is present.
Dr. J.O. Ibik (SAN) of Counsel appears for the plaintiff and with Ibik G.I. (Mrs) and Ikedigwe B.C., Esq.
F.O. Ofodile, Esq. of Counsel with Carol Anyikwa (Mrs) for the 1st defendant.
E.D. Chukwuma, Esq. of Counsel with C.C. Ononye, J.O. Emordi and Ngozi Okolonji for the 2nd defendant. Counsel says that Mrs. Emordi informs him that J.H.C. Okolo (SAN) asks that matter be stood down.
Dr. Ibik (SAN) informs Court that J.H.C. Okolo informed him to stand down the matter down that he will make a brief stop at Awka and obtain date and rush down.
Court:- Suit is stood down till 10-11am.
J.H.C. Okolo (SAN) now appears for the 2nd defendant and with him Dr. Z.C. Anyogu, E.D. Chukwuma, C.C. Ononye, J.O. Emordi, Miss. Ngozi Okolonji for the 2nd defendant.
Dr. J.O. Ibik (SAN) adds the name of Chudi Obieze, I.G. Ibik (Mrs) and Ikedigwe B.C.
E.O. Ofodile, Esq. appears with Carol U., Anyikwa (Mrs) for the 1st defendant.
Dr. J.O. Ibik asks Court to proceed with motion for interlocutory injunction. That each Court has its own duty to bring to bear on the litigants and has to act according to the rule of game. Counsel does not understand how application in the Court of Appeal for stay of proceedings in the main can be said to be in danger or rendered nugatory of the Honourable Court mere to conclude argument on the motion for interlocutory injunction aimed at the restoration of the status quo ante which is the restoration of the platform of the main
cause will be addressed both in evidence and legal submission. Counsel asks Court to discountenance the invitation to stay proceedings in this case.
J.H.C. Okolo (SAN) informs Court that he is prepared to proceed for interlocutory injunction.
E.O. Ofodile is now asked to deliver his reply in the motion for interlocutory injunction. Counsel refers to the 1st Counter affidavit filed of thirty paragraph deposed to by Nwolisa Agusiobo dated 18th April, 2005 and filed the same day. Counsel relies on all the paragraph of the affidavit as well as a written address filed on behalf of the 1st defendant/respondent dated 15th April, 2005 and filed on 18th April, 2005. Counsel adds that the gravamen to the objection being sought is that you do not make injunction against a completed act.
J.H.C. Okolo (SAN) refers to Counter Affidavit filed by 2nd defendant dated 22nd April, 2005 with various exhibits. On 22nd April, 2005 Counsel filed reply brief on the application. Counsel relies to the processes in opposition to the application. Summary of 2nd defendant’s position that going by the statement of claim. Counsel wishes to direct Court’s mind to
paragraphs 34 and 36, paragraph 34 states that 2nd defendant has since March, 1994 assumed paraded himself as Odu. Refers to the paragraph which publicly terminated what plaintiff use to enjoy. Counsel says that plaintiff is now asking in 2006 to wave a bond interlocutory order. Adds that equally does not aid the indolent. Counsel allies himself with the issue of the act having been completed long ago. This type of order being sought is not amenable.
Counsel observes at the claim at paragraph 42(a), (b) and (c) plaintiff is asking to reach a finding that his first installation was in order and requests his Lordship that as since that installation is upheld no one will in his life time be installed. Simple nationality demand that the validity of his recognition has to be reached that the Court can reach the decision that he was properly installed at the end of the case. Counsel states that until that decision is reached the Court will be jumping the gun before reaching the point.
Refers to the life time exclusive right is subject to evidence which are matters of customary law and until the Court hears evidence will not be in a position to reach decision one way of the order. Counsel urges Court to have regard to the case of the Supreme Court in Elesie Agba vs. Okogbue (1991) 7 NWLR (Pt.204) at page 391.
Judgment written by Hon. Justice P.K. Nwokedi dealing with contemporary societal customary law and his view is that customary law is never static and if it were it will lose its essence. In this case an age grade imposed particular pattern of conduct of all the people coming to the group and in the course of it certain sanctions were imposed for non-compliance, and when it occurred they sequestrated or seized his property and the victim went to Court and said the grade has no rights to seize his property and the ultimate view of the Supreme Court that conduct must be viewed with the acceptance of the conduct within the community unlike what it used to be before our forefathers decisions is that the conduct was not enforced even though they did not say the conduct was repugnant, that is a conduct which had existed for centuries was rejected.
The relevance is that the customary practice is a volatile concept and that what our forefathers did is not what happens today. States that plaintiff should get into the witness box and say how he is entitled to. Counsel refers to another aspect is the propriety of making the order for interlocutory injunction when the time state of the past have been accepted by both sides.
Counsel states that the title is not something personal but created within Onitsha indigenes and the rights and obligations revolve within the same community and not the person so installed but the community and that it requires the acceptance of the community to wear an empty garland and if it is not accepted by the community it becomes meaningless.
Submits that community interest cannot be stopped at this stage cannot say to the 2nd defendant stop parading yourself as Odu, until I reach a decision in this suit. And that going by the community essence any decision one way or other will not change the order. Counsel refers to Bulunkutu vs. Zwangina (1997) 11 NWLR (Pt.529) 526 particularly 539-540 that Court should desist from making orders in vain and if the community says they don???t know the person in favour of interlocutory injunction where then is the Court. The common parlance is that you take out fish from Anam
citizen you have affected the entire Anam citizen. Submits that the balance of convenience is on the Onitsha community and not on the dramatis persona, Counsel urges Court to hold that such orders ought not to be made at this stage let the plaintiff go into the witness box. Akinwose vs. AIT Ltd. (1961) WRNLR 116 urges Court to reject the application.
Dr. Ibik seeks an indulgence to use the affidavit sworn by plaintiff/applicant raising a new fact that were not contained in the plaintiffs supporting affidavit for interlocutory injunction. Refers to the written address and reply to point of law.
Counsel observes that at the stage of interlocutory application an iron clad (gate) between the matters to be determined in the main case and the matters raised in the interlocutory injunction. Refers to points raised by J.H.C. Okolo (SAN) the points in statement of claim and substantive reliefs claimed opining that until your Lordship comes to the conclusion that the plaintiff is entitled to the declaration sought by him one cannot look at the interlocutory application. That is because the position of 2nd defendant was accepted to have been in existence since 1994 that Court should not grant the application. Counsel states that 2nd defendant by his amended statement of defence has put in a declaration in his favour in his counter claim. Both claim and counter claims are to be addressed at the hearing of the substantive suit not at this stage of interlocutory injunction. Any point for the substantive trial should not be nibbled at this stage for interlocutory application the triable issues was distilled from NAL Bank (2002) states that the ratio in that case is that the Court looks at the affidavit materials so as to determine whether there is a triable issue.
On the issue of completed act Governor of Lagos State, Onyeso v. Nebedom, where the Supreme Court held that where the alleged complete act is the very cause of action the Court must ignore the so called completed act. It is the exercise of the Court’s discretion to order injunction. Refers to paragraph 2 of written address. Akibu vs. Oduntan states that it is non-issue. Onitsha indigenes are not parties to the suit, states that in plaintiff’s affidavit 2nd defendant insatiable quest to be an Odu in 1994 ended up in a fiasco in Suit No.O94 cited which was taken out and the present plaintiff and late Igwe of Onitsha that nobody appointed him Odu and he recited and said he was no longer interested.
On issue of delay, action is taken with the coming into play with 1st defendant, the two collaborated one with the other secretly to install 2nd defendant as Odu and as soon as it was discovered plaintiff came to Court. Submit that balance of convenience tilts in favour of the plaintiff especially when Onitsha community alone is not part of the game. Submit that 2nd defendant stops parading as Odu till the end of the suit.
J.H.C. Okolo refers to Court to the exhibits in this trial in view of Exhibit B,C and F and alongside Onitsha custom in the counter affidavit says that simply action is that 2nd defendant filed counter-claim. Refer to pendency of certain action, and that paragraph 15 if reply to amended statement of claim has been overtaken. Counsel refers to completed act and it is only in relationship to interlocutory action is concluded that is final for interlocutory injunction. The Court can set it aside in his judgment if he
finds it necessary to do so.
Counsel asks the question that if injunction is granted the Odu having been removed and new Odu restrained that will be an affront for Onitsha people. States that substantive case should be heard.
Court:- On agreement of Counsel application is adjourned to 27th March, 2006 for Ruling.
SGD. J.C. NWADI, JUDGE, 20/3/2006.
The crux of the argument of the learned silk representing the appellant is to be garnered at page 4 paragraph 4.01 to page 7 paragraph 5.08 as follows:
Rules of Court, Rules of Procedure govern the business of Court. Litigants, Counsel and the Honourable Judge are all bound to comply with the rules and be bound by rules.
Where Counsel on the instruction of his client brings a motion on Notice before the Court and Counsel has ensured that the motion on Notice is accompanied by an affidavit in support of motion, a written address, and has filed the process at the Court’s Registry, paid the appropriate fees and served the bundle of papers on the respondents, Counsel without more has conformed with the Rules and the motion would be ripe for hearing. The motion dated andfiled on 15th March, 2006 was before the Honourable Court on the 20th day of March, 2006, parties were present. Counsel for the defendant/applicant/appellant called the attention of the Court to the motion.
Hon. Justice J.C. Nwadi refused to hear the motion, refused that Counsel should formally move his motion and there and then summarily dismissed the motion. We humbly submit that the action of the learned trial Judge was high handed and a denial of the 1st defendant’s Constitutional Right to Fair Hearing as provided by Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria. My Lords, it was obvious that Hon. Justice J.C. Nwadi was not happy with the said motion but nonetheless Counsel owes a duty to his client and has to present the client’s case to the best of his ability.
We further submit that litigants have an unfettered right to exercise their constitutional right of seeking redress where they feel aggrieved. Honourable Judges can not decide or choose for parties the application that should be brought to Court. Judges are enjoined to treat applications with seriousness and give reasons for the decisions they arrive at. Please see Okoro vs. Okoro (1999) 3 NWLR (Pt.540) page 65 at page 66 ratio 1.
My Lords, for a motion on Notice accompanied by a written address which was not opposed to be summarily dismissed by the learned trial Judge can not be fair or just. We further submit that the refusal of the trial Court to hear appellants motion amounts to an infringement of appellants Fundamental Right to Fair Hearing which is a right guaranteed by the Constitution and also enshrined in the principle of Natural Justice audi alteram partem. This in itself nullified any further proceedings of the trial Court as from 20th March, 2007. Please see Agbu vs. Agbu (2007) 1 NWLR (Pt.1016) page 528 at 530 to 532 ratio 1 and 2.
The decision by the learned trial Judge not to hear appellant???s motion, not to record Counsel, not to record proceedings and not to record a Ruling on 20th day of March, 2006 and dismissing the motion, we humbly submit is a decision made without jurisdiction and contrary to the Rules of natural justice. Please see:- Omoniyi vs. Central Schools Board (1988) 4 NWLR (Pt.89) page 448 at page 450 to 453, ratios 1, 2, 3, 5, 8, 9 and
12. We urge the Honourable Justices of Appeal to so hold in this case.
Ground 3 Issue No.2:- Is a Judge not duty bound to hear motions which are properly before him? My Lord Justices of Appeal, the word filibuster is defined in the 7th edition of Black’s Law Dictionary thus:-
A dilatory tactic especially prolonged and often irrelevant speech making employed in an attempt to obstruct legislative action. Dilatory means tending to cause delay.
We humbly submit that legislative action is quite different from executive and judicial action, with the advent of brief writing and Practice Directions in the High Court of Anambra State, Counsel can no longer address the Court extenso. All Counsel does is adopt his brief. No prolonged or irrelevant speech making is possible. The comment or observation by learned trial Judge was made to impugn the probity of Counsel in the conduct of the case and should not be lightly made.
Filibustering never took place and was never an issue before the Court. Please see the cases of:- Olaogun Ent. Ltd. (1999) 14 NWLR (Pt.637) page 128 at 135 ratio 11; C.C.A. Edo State vs. Aguele (2006) 12NWLR (Pt.995) page 545 at pages 553 to 554 ratios 10 and 11.
Motion dated and filed on 15th March, 2006 that ought to have been heard on 20th March, 2006 had 4 prayers:- (i) Stay of proceedings (ii) Setting aside the proceedings immediately following after the Ruling delivered on 8th March, 2006 (iii) Expunging from the Court’s records book the said proceedings (iv) Fixing plaintiff’s motion on Notice dated 25th February, 2005 for interlocutory injunction on a date convenient to and agreed by Counsel for all the parties and the Honourable Court.
Obviously, Hon. Justice J.C. Nwadi was not comfortable with the motion. He was so unhappy with it that he failed to make any recording in his record book. Had the learned trial Judge not alluded to motion dated 15th March, 2006 in his Ruling on interlocutory injunction delivered on 12th April, 2006 perhaps the IDES of 20th March, 2007 would have been long laid to rest. There was also no Counter Affidavit or written address from the defendants/respondents before the Honourable Court.
Justice is a two way traffic, justice for the applicant and justice for the respondent. It must not only be seen to be done but must manifestly and undoubtedly be seen to have been done. We respectfully submit that it was not the case on 8th March, 2006 and 20th March, 2006. Suffice to quote Aniagolu, JSC as he then was in the case of Edun vs. Odan Community (1980) 8-11 SC page 103 at 127 that:The moment a Court ceases to do justice in accordance with the law and procedure laid down for it, it ceased to be a regular Court to become a Kangaroo Court.
The action or decision of the learned trial Judge not to hear appellant’s motion on 20th March, 2006 was made without jurisdiction and contrary to the rules of natural justice and should be set aside and expunged from the records of Court. Please see:- Anaekwe vs. Mashasha (2001) 12 NWLR (Pt.726) page 70 at 74-75 ratios 3, 4, 6, 7 and 8; Mbadinuju vs. Ezuka (1994) 8 NWLR (Pt.364) page 535 at 544 ratio 10 and this Honourable Court is enjoyed to act accordingly.
From page 362 paragraph 2 to page 363 paragraph 1 of the records, Hon. Justice J.C. Nwadi went into a discussion of abuse of process. My Lords, question of abuse of process was not raised by any of the Counsel or parties before the
Honourable Court. The Honourable Court never invited any Counsel to address it on abuse of process. Failure of the Honourable Court to call for address of Counsel on that issue denies/robs the Court of jurisdiction. Please see the case of:- Daiko vs. U.B.N. (2004) 5 NWLR (Pt.862) page 123 at pages 132-133 ratio 11, 12 and 13.
Learned trial Judge relied solely on the decided case of Attahiru vs. Bagudu (1998) 3 NWLR (Pt.543) page 656. It is our humble submission that the case is not supportive of the assertions made by the learned trial Judge rather the defendant/appellant will place reliance on the said case to submit that it can not be argued by any stretch of imagination that 1st defendant’s motion of 4 prayers to set aside proceedings of 8th March, 2006 which the Court refused to hear is wanting in bona fide, frivolous, vexatious or oppressive.
Finally, it is our submission that all the 1st defendant/applicant/appellant did by bringing the motion dated 15th March, 2006 which should have been heard on 20th March, 2006 was to seek redress in a Court of a law because he was aggrieved and this is a constitutional right. Section 272(1) and
Section 6(6)(b) of the 1999 Constitution of the Federal Republic of Nigeria and the learned trial Judge was duty bound to hear the motion.
The learned silk representing the 1st respondent commences at page 8 paragraph 4.2 to page 10 paragraph 4.8 as follows:
It is pertinent to draw the Court’s attention to the motion dated 15th March, 2006 (at pages 242 to 257 of the record). There is no return date written on the said motion. It prays inter alia: An order staying further proceedings in this suit pending the hearing and determination of the motion on Notice. It also prayed for an Order setting aside the proceedings of the Court below immediately following after the Ruling delivered on 8th March, 2006 in the substantive suit before the lower Court. The said motion was served on plaintiff/respondent and was met with a Counter Affidavit and written address in opposition at pages 280-286 of the record.
It is also important to refer to the proceedings of 20th March, 2006 at pages 354 to 359 of the record where the following revelation is discernible. The motion for stay of proceedings before the lower Court was not moved. Counsel for the plaintiff/respondent asked the Court to proceed with the motion for interlocutory injunction. This was made in the presence of the Counsel for the 1st defendant/appellant. The learned Senior Counsel for the 2nd defendant/respondent reacted thus at page 355 lines 13 to 14:-J.H.C. Okolo (SAN) informs the Court that he is prepared to proceed for interlocutory injunction.
The Court then asked the learned Counsel for the 1st defendant/appellant to deliver his reply in the motion for interlocutory injunction. He proceeded and concluded accordingly. So too did learned Senior Advocate of Counsel for the 2nd defendant/respondent react in response. After reply by Counsel for the plaintiff/respondent the case was adjourned to 27th March, 2007 for Ruling. However Ruling was delivered on 28th March, 2006 due to intervening public holiday.
From the foregoing pertinent record of the proceedings in the lower Court, it is patent that the appellant’s complaint of dismissal of, and/or refusal to hear his motion is not manifest on the record. It is trite that any complaint which is not manifest on the record is
to be discountenanced as being extraneous. The appellant’s brief did not specify the part of the record showing that the Court refused to hear his Counsel on the motion. Equally conspicuously absent in the said appellant’s brief is any reference to any part of the record of proceedings on 20th March, 2006 where the lower Court dismissed his motion.
It is trite that the record of appeal is strictly binding on the parties and the Court. This is moreso when the record is the product of settlement of record in the registry of the Court below duly transmitted and entered in the registry of the appellate Court. The appellant has not impugned nor challenged the correctness of the record. In the circumstance it is submitted that the entire arguments in the appellant’s brief cannot be substantiated on the record pertinent to the instant Appeal. The Court is accordingly urged most respectfully to discountenance the instant appeal and dismiss the same as unmeritorious, unsubstantiated and an abuse of process.
This is moreso because the motion was not listed for argument before the trial Court on 20th March, 2006, and the appellant’s
Counsel who was in Court on that day having been duly served with Counter Affidavit did not seek to move motion. Instead the appellant???s Counsel waived the appellantss right to fair hearing on the motion when he argued in response to the adjourned argument on interlocutory injunction initiated by the plaintiff/respondent.
Besides, the appellant has not demonstrated in his brief the practical or judicial relevance of the instant appeal in view of Appeal No.CA/E/175/2006 where all embracing arguments on all pertinent issues arising from the interlocutory appeal against the Ruling granting interlocutory injunction were canvassed. It is accordingly urged that the issue be resolved against the appellant.
An examination of the appellant’s brief of argument will show that the cause of this appeal relates to the motion for stay of further proceedings dated 15th March, 2006 and filed the same day in the Court below. The motion is on pages 242 to 243 of the printed record. The appellant sought the following reliefs against the 1st respondent in this appeal to wit:
1. An order staying further proceedings in this suit
pending the hearing and determination of this motion on Notice.
2. An order of Court setting aside the proceedings of this Honourable Court immediately following after the Ruling delivered on 8th March, 2006 in this suit.
3. An order of Court Expunging from the Court’s Records Book the said proceedings immediately following after the Ruling of 8th March, 2006 in this suit.
4. On granting of prayers 1, 2, and 3 above for an order of Court fixing the motion on Notice dated 25th day of February, 2005 and filed on 2nd March, 2005 for hearing on a date convenient to and agreed by Counsel for all parties and the Honourable Court.
AND for such further Order/or other orders as this Honourable Court may deem fit to make in the circumstance.
AND FURTHER TAKE NOTICE that the grounds on which this application is made is as follows:
(a) No motion was fixed for hearing on the 8th day of March, 2006.
(b) 8th day of March, 2006 was fixed for the Ruling of the Court in a motion for stay of proceeding brought by the 1st defendant/applicant herein.
(c) 8th day of March, 2006 was not fixed for Ruling and continuation.
(d) A date fixed for Ruling is not a date for hearing of a motion.
(e) A date fixed for motion is not a date for hearing of the case.
(f) Justice must not only be done but must manifestly and undoubtedly be seen to have been done.
(g) Hearing arguments on a motion not fixed for that day is overreaching, prejudicial and contrary to the rules of natural justice.
(h) The Honourable Court had no jurisdiction to hear plaintiff’s motion dated 25th February, 2005 and filed on 2nd March, 2005 on 8th March, 2006.
The application was verified on a sworn affidavit of Nwolisa Agusiobo, Secretary to the appellant to wit:
1. By virtue of my office I am conversant with the facts of this case and have the permission and consent of both H.R.M. Igwe Achebe and his Counsel E. Obiesie Ofodile to swear to this affidavit.
2. On 21st February, 2006 after Counsel for the 1st defendant/applicant E. Obiesie Ofodile had moved a motion for stay of proceedings pending appeal and arguments taken, the Honourable Court adjourned the matter to the 8th day of March, 2006 for Ruling.
3. On 8th day of March, 2006 the Honourable Court delivered its Ruling where upon Counsel for plaintiff/respondent informed Court that he had a motion dated 25th February, 2005 filed on 2nd March, 2005 and was ready to move same.
4. Despite objections by Counsel for 1st defendant that the procedure was wrong the Court allowed plaintiff to move the motion.
5. The said motion was not fixed for hearing on the 8th day of March, 2006.
6. A date fixed for Ruling is not a date fixed for hearing of a motion.
7. Afortiori a date fixed for motion is not a date for hearing.
8. By allowing the motion to be moved the 1st defendant/applicant has been prejudiced.
9. The Honourable Court had no jurisdiction to hear a motion which was not fixed for hearing on that day. The said motion had earlier been abandoned, stayed and put in the cooler by Counsel for the plaintiff Dr. J.O. Ibik, SAN.
10. Counsel for 1st defendant/applicant was taken by surprise.
11. Justice must not only be done but must manifestly and undoubtedly be seen to have been done.
12. Unless the said proceedings wherein plaintiff’s Counsel was allowed to move the motion dated 25th February, 2005
filed on 2nd March, 2005 is set aside and expunged from the record of Court the 1st defendant will continue to suffer injustice.
13. The proceedings of this Honourable Court immediately after the Ruling of 8th March, 2006 is most prejudicial and detrimental to the 1st defendant/applicant.
14. E. Obiesie Ofodile of Counsel informs me in his office at 31D Awka Road at 4 Oclock on 9th March, 2006 and I verily believe him:
(a) That at the hearing of this motion he would rely on the Court’s records and all processes in the Court’s possession.
(b) That the procedure followed/adopted by the Honourable Court on 8th March, 2006 was improper and contrary to the Rules.
15. I do solemnly sincerely declare that I make this solemn declaration conscientiously believing the same to be true and by virtue of the provisions of the Oaths Act, 1990.
The proceedings that have given rise to this appeal are said to have been conducted in the Court below on 20th March, 2006.
The learned trial Judge rendered his decision on 12th April, 2006 (See page 360 to 371 of the printed record). The Court held at page 369 lines 30 to page 371 lines 1 to 13 of the printed record as follows:
In the case of Onyesoh vs. Nebedum (1997) 3 NWLR (Pt.229) 315 the Supreme Court restated the principles governing grant of an interlocutory injunction which include that an injunction can only be granted to support or protect a legal right, the remedy for interlocutory injunction is temporary and designed to keep the parties in status quo ante bellum pending the determination of the substantive action, being an equitable remedy the grant of the interlocutory injunction is discretionary, the applicant must show from the affidavit in support of his application that there is a genuine dispute between the parties to be determine before the Court, it will be a strong ground in favour of the applicant if he can show that the conduct of the respondent is unjustified, and that the applicant cannot be satisfactorily or adequately compensated in damages, and it is not the law that the applicant must show a prospect of obtaining a permanent injunction at the end of the trial. It is sufficient for the applicant that there must be a serious question between the parties to be tried at the hearing. The Court is satisfied that the plaintiff/applicant has met all the requirements for grant of interlocutory injunction including that as Odu Osodi of Onitsha having been initiated and installed in 1994 that he has a right which ought to be protected pending the determination of the substantive action, that there is a serious issue on the evidence before the Judge between the parties to be tried, and that the balance of convenience is in favour of granting the application than refusing it. Vide Akapo vs. Hakeem Habeeb (supra). This application ought to succeed and it succeeds. The Court hereby makes the following orders:-
1. The defendant/respondents, their servants, agents or privies are hereby restrained by an interlocutory injunction from interfering and, or further interfering with the plaintiff/applicant in the exercise of his rights and performance of his functions as the ODU OSODI of Onitsha as prescribed under Onitsha Native Law and Custom pending the hearing and determination of the substantive suit in the above proceedings.
2. The 2nd defendant/respondent is hereby restrained by interlocutory injunction from parading himself as the ODU OSODI of Onitsha and or purporting to exercise, usurp or continuing to usurp the legitimate powers, functions, rights, privileges vested in the applicant as the duly installed and initiated ODO of Onitsha as established under Onitsha Native Law and Custom pending the determination of the substantive suit.
3. The plaintiff/applicant is hereby ordered to enter into bond with the Assistant Chief Registrar, for the sum of N20,000.00 (Twenty Thousand Naira) should it turn out that this order should not have been made.
SGD. J.C. NWADI, JUDGE, 12/4/2006.
This Court is bound by the entries made by the learned trial Judge in regard to the proceedings of 20th March, 2006. See Julius Berger (Nig) Ltd. vs. Femi (1993) 5 NWLR (Pt.295) 612 at 619-620. This Court will act only on the printed and certified true copies of the record of appeal. See N.P.M. Co. Ltd. vs. CNDETS. S. (1971) 1 NMLR 223 at 226; Omohodion vs. C.O.P. (1961) 4 All NLR 594; Q vs. Ogodo (1961) 4 All NLR 700 and Q vs. Isa (1961) 4 All NLR 668. In Enekebe vs. Enekebe (1964) NMLR 42, Bairaman, JSC held at page 46 that, In the cases on discretion which I have seen, the trial
Court goes by the material presented to it, and the Court of Appeal goes by the material in the record
I have deliberately reproduced the proceedings conducted in the Court below on 20th March, 2006 to show the oral submission of E.O. Ofodile, Esq. of Counsel representing the appellant said in argument. At no time did the learned Counsel draw the Court’s attention to the pendency of a motion dated and filed on 15th March, 2006 for stay of further proceedings. Neither was there any suggestion from learned Counsel that the application should be heard together with the motion for interlocutory injunction but this was opposed by Dr. J.O. Ibik, SAN of Counsel to the 1st respondent nor J.H.C. Okolo, SAN of Counsel representing the 2nd respondent. There is no evidence on record that the said motion was listed for hearing on the 20th March, 2006. Indeed, none of the learned Senior Counsel alluded to the motion which has now given rise to this appeal in argument nor did the learned trial Judge allude to it in his ruling delivered on 12th April, 2006. There is no affidavit from the appellant nor E.O. Ofodile, Esq. of Counsel nor Mrs. Carol Ayikwa whom Counsel led on 20th March, 2006 nor J.H.C. Okolo, SAN of Counsel that represented the 2nd respondent to challenge the entries in the record of appeal in the record of appeal. See Gonzee (Nig.) Ltd vs. NERDC (2005) All FWLR (Pt.274) 235 where Edozie, JSC held at page 245 paragraphs G-F to wit:
The Court and the parties are bound by the record of appeal as certified and is presumed correct unless the contrary is proved. A party who challenges the correctness of record of proceedings must swear to an affidavit setting out the facts or apart of the proceeding omitted or wrongly stated in the record. Such affidavit must be served on the Judge or registry of the Court concerned: See Ehikeoye vs. C.O.P. (1992) 4 NWLR (Pt.233) 57;Sommer vs. Federal Housing Authority (1992) 1 NWLR (Pt.219) 548; Texaco Panama Inc. vs. Shell PDC Nig. Ltd.(2002) FWLR (Pt.96) 579, (2002) 5 NWLR (Pt.759) 209 at 234.
The mere assertion in his brief of argument by learned Counsel for the plaintiff that the relevant exhibits were before the Court below, at the material time is insufficient to controvert the statement of the Court below to the contrary. Learned Counsel not being the registrar of the Court below who is the custodian of the exhibits, is not in a position to say whether those exhibits were before the Court below at the material time. I am, therefore, prepared to agree with the statement by the Court below that the exhibits were not made available to it despite its request for them. But the crucial question is whether it was really necessary for the Court below to see those exhibits before reaching a decision on the issue of assessment of damages.
The argument of E.O. Ofodile, Esq. who settled the appellant’s brief is not supported by the certified true copy of the appeal records. The submissions of learned Counsel in the briefs of argument will never take the place of legal evidence. See Yoye vs. Olubode (1974) 1 All NLR (Pt.2) 118; Zein vs. Geidam (2004) All FWLR (Pt.237) 457 at 480 paragraph B and Oduola vs. Coker (1981) 5 SC 197. The facts and circumstances of a case determine the judicial authorities a learned Counsel should cite to support his argument in Court. See Adegoke Motors Nig. Ltd. vs. Adesanya (1989) 3 NWLR (Pt.109) 250 at 265.
It is very wrong and this may constitute a professional misconduct to attack the decision or character of a learned trial Judge on an issue not argued nor canvassed in the Court below, on appeal. See Balogun vs. Obisanya & Anor. (1956) 1 FSC 22 at 23 and Atanda & Ors. vs. Ajani & Ors. (1989) 6 SCNJ 193 at 209 to 210. I resolve issue (i) against the appellant.
In Hanbury and Maudsley Modern Equity, 1976 Edition by Harold Greville Hanbury appears the following statement on the nature of an interlocutory injunction pending the determination of the substantive suit at pages 78 to 79 to wit:
The jurisdiction is related not to the most just method of protecting established rights, but to the most convenient method of preserving the status quo while rights are established. Interlocutory injunctions may be prohibitory, mandatory, or quia timet. Normally such an injunction remains in force until the trial of the action, but an interim injunction may be granted, which endures for some shorter specified period. If the parties consent, the interlocutory hearing may be treated as a final trial if the dispute is of
law. But this will not be possible if the dispute is of fact, as affidavit evidence is unsuitable for such issues.
The principal and fundamental purpose of an interlocutory injunction is to preserve the status quo while the rights of the parties contesting the subject-matter are to be established after the facts have been gone into in a full-blown trial. That is when the learned trial Judge might have rendered a decision in favour or against any of the disputing parties. In Snell’s Principles of Equity, 27th edition by The Hon. Sir. Robert Megarry, pages 636 to 637 also appears the following statement on interlocutory injunctions pending the determination of the substantive suit to wit:
1. General principles:- Though the proverbial delays of Lord Eldon’s chancellorship no longer exist, there is still an inevitable lapse of time between the commencement of an action and the trial. The injury being suffered by the plaintiff may be such that it would be unjust to make him wait until the trial for relief, and so in certain circumstances the Court will grant an injunction before trial with theobject of keeping matters in status quo, or of facilitating the administration of justice at the trial; and in a proper case the plaintiff may even be given the whole of the relief which he would seek at the trial. Similarly, an injunction may be granted pending an appeal. The grant of interlocutory relief is always discretionary, and depends on the circumstances of each case. The following, however, are the more important considerations.
The status quo to be kept or maintained pending trial would be dependent on the nature of the subject matter in dispute coupled with the kind of injury that if an interlocutory injunction is not granted may result to the detriment of the party that applied for the remedy by the time the rights of the parties were determined at the end of the trial. In Akapo vs. Hakeem-Habeeb (1992) NWLR (Pt.247) 266, Karibi-Whyte, JSC held where the dispute involved the rights of a family head in the administration of family property at pages 291 to 292 as follows:
The status quo which the Court can by the granting of injunction maintain, is the restoration of the parties to the position they were before April, 1985,when respondents with force took over the management and control of the offices and property of the Ojora Chieftaincy family, hitherto under the control and management of appellants and the Family Council.
The learned trial Judge has to consider whether the action of the party that applied for an interlocutory injunction is frivolous, or there are triable issues in granting or refusing an application for an interlocutory injunction. In Adenuga vs. Odumeru (2003) FWLR (Pt.158) 1288 at page 1304 paragraph H to page 1305 paragraphs A-G to wit:
In an application for an interlocutory injunction, the plaintiff must show an existence of his right which needs to be protected in the interim. He must at the same time satisfy the Court that there is a real question to be tried in the substantive suit: Egbe vs. Onogun (1972) 1 All NLR 95 at 98. This does not require the Court to determine the merit of the plaintiff’s entitlement to the claim. But it places on the plaintiff an initial burden. It is the burden of showing that there is a serious question to be tried upon the affidavit evidence (as well with averments in the statement of claim, if any has been filed): See Obeya Memorial Hospital vs. Attorney-General of the Federation (1987) 3 NWLR (Pt.60) 325.
It is necessary to emphasize that it is of vital importance for a plaintiff seeking an interlocutory injunction to adduce sufficiently precise factual affidavit evidence to satisfy the Court that his claim for a permanent injunction at the trial is not frivolous; or at any rate, based on the substantive claim, to produce affidavit evidence to satisfy the Court in justification of his application for an interlocutory injunction to maintain the status quo. It is only when this has been done that it will become necessary for the Court to proceed further with the application to consider the balance of convenience. Otherwise the application ought to be refused at the point the Court is not so satisfied. This is clear from the observation made by Lord Diplock in American Cyanamid Co. vs. Ethicon Ltd.(1975) 1 All E.R. 504 at 510 as to what should be the approach in considering an application for an interlocutory injunction.
He said inter alia:
It is no part of the Court’s function
at this stage of the litigation to try to resolve conflicts of evidence of affidavit as to facts on which the claims of either party may ultimately depend not to decide difficult questions of law which call for detailed argument and mature considerations. These are matters to be dealt with at the trial so unless the material available to the Court at the hearing of the application for an interlocutory injunction fails to disclose that the plaintiff has any real prospect of succeeding in his claim for a permanent injunction at the trial, the Court should go on to consider whether the balance of convenience lies in favour of granting or refusing the interlocutory relief that is sought.
It seems to me that even if there had been no cause for me to comment adversely on the complaints laid in the grounds of appeal and the issues set down for determination, this appeal stood no chance of succeeding. The likelihood that a plaintiff would have succeeded in establishing his right to an injunction if the action had gone to trial is a factor to be brought into the balance by the Judge in weighing the risks that injustice may result from his deciding
the application for an interlocutory injunction one way rather than the other: See NWL Ltd. vs. Woods (1979) 3 All ER 614 at 626.
Economic benefits a party has been deriving from the property before the alleged interference or invasion may be considered in granting or refusing an application for interlocutory injunction pending the determination of the rights of the parties. See Adesina vs. Arowolo (2005) FWLR (Pt.245) 1123 at pages 1140 to 1141.
The facts in dispute are to be garnered from the pleadings filed and exchanged by the parties in the Court below. The case of Chief A.C.I. Mbanefo in the Court below is that he was duly and properly installed and initiated into the vacant seat of Odu Osodi of Onitsha in 1994 and is entitled to occupy that traditional office and hold the traditional rank of Ndichieume and Ndichie Ukpo for life according to the Onitsha Native Law and Custom hence the Chief sought the declarative reliefs in the Court below coupled with perpetual injunction in paragraph (d) of his claim. If at the end of the trial the Chief is able to prove his claim I think he would be entitled to the perpetual injunction claimed, if not the Court below would dismiss.
In Hanbury and Maudsley Modern Equity (ante), page 69 the learned author explained the meaning of perpetual injunction as follows:
Perpetual and Interlocutory Injunctions:
Prohibitory or mandatory injunctions may be perpetual or interlocutory. Perpetual does not mean necessarily that the effect of the order must endure for ever; it means that the order will finally settle the present dispute between the parties, being made as the result of an ordinary action, the Court having heard in the ordinary way the arguments on both sides. But a plaintiff may not always be able to wait for the action to come on in the normal course; it may be that irreparable damage will be done to him if the defendant is not immediately restrained. If such is the case, the plaintiff will serve on him a notice that on the next motion day his Counsel will apply to the Court for aninjunction. The service of this notice will enable the defendant’s Counsel also to be heard, if he wishes, but the hearing will not be a final decision on the merits of the case. If the plaintiff’s affidavit has made out a sufficient case, the Judge will grant an interlocutory injunction, which is effective only until the trial of the action.
Again in Snell’s Principles of Equity (supra) page 626 appears the following write up on perpetual injunction:
1. Damages an insufficient remedy:The very first principle of injunction law is that prima facie you do not obtain injunctions to restrain actionable wrongs for which damages are the proper remedy. Thus no injunction will be granted where an illegal act has been done in the past but there is no intention of repeating it, or where the injury can be adequately compensated by money. But an injunction may be granted if an award of damages would be useless, e.g. because the defendant is a pauper; and many wrongs, such as continuing nuisance or infringements of trade marks, demand more adequate relief than money. Moreover, a party to a contract has a right to its performance and not merely to compensation for breach, and hence an injunction will be granted to restrain breaches of negative contracts. If, however, the parties have specified a
sum as liquated damages for breach of a negative contract, the plaintiff cannot both recover the sum and claim an injunction.
The plaintiff founded his cause of action on the Native Law and Custom in Onitsha, Anambra State. In The Queen: Exparte Adebo vs. Governor-In-Council, Western Region (1962) 1 All NLR 917, Charles, J., held in the High Court of Justice of the defunct Western Nigeria Region in a deposition of a Chief by the Governor-In-Council at pages 923 to 924 as follows:
An office is not in the strict sense itself a right but it may be the subject of such a right. Thus, a person may have a right (in the strict sense) to be appointed to it or to hold it for a period of time. It may be also have such rights appurtenant to it, such as a right to salary. In so far as deprivation of the office extinguishes such rights, a decision to deprive is a determination affecting the rights of the office holder. Under the Chiefs Law a recognized Chief has a right in the strict sense to hold office until he is deprived of it in accordance with Section 22, that is until the Governor-in-Council decides to depose him after being satisfied that any
of the specified grounds exist. The satisfaction of the Governor-in-Council that such a ground exists is a condition precedent to the exercise of the power of deposition, so that the office of Chief is not held at the will of the Governor-in-Council but is one which the holder is entitled to retain until the Governor-in-Council is satisfied that one of the specified grounds for deposition exist. Further, it is a matter of judicial knowledge I think, that, as in this case, the office of Chief often, if not invariably, has appurtenant to it a right to salary and other rights. As Section 22 does not limit the power of deposition to chieftaincy offices which do not have appurtenant rights, if there are any such offices, it necessarily confers a power to make a determination which affects the right or rights, in the strict sense, of an individual.
With reference to the second question, whether the Governor-in-Council is bound to act judicially in making a determination under Section 22, it is important to recognize that there is a presumption that when the Legislature confers a power on an authority to make a determination affecting an individual in his property or person, it intends that the power shall be exercised judicially in accordance with the rule of natural justice that the individual affected must be given an adequate opportunity to be heard. That proposition was clearly recognized by the Privy Council in Smith vs. The Queen, (1878), 3 App. Cas. 614. In that case the Governor of Queensland had purported to cancel a lease under a statutory power which provided;-
If at any time during the currency of a lease it shall be proved to the satisfaction of the Commissioner that the lessee had abandoned his selection and failed in regard to the performance of the conditions of residence during a period of six months, it shall be lawful for the Governor to declare the lease absolutely forfeited and vacated.
The Privy Council allowed an appeal from an order of ejectment by the Supreme Court of Queensland because the forfeiture on which that order was based had not been lawfully made in that the Commission had not satisfied himself in a judicial manner of the grounds for it, since he had not given the lessee an adequate opportunity to be heard.
Native Law and Custom recognizes the importance of chiefs or traditional rulers in the society coupled with the rights and privileges that may attach to their offices.
In Nigerian Land Law by B.O. Nwabueze, 1982 Reprint, the learned author wrote at pages 149 to 152 concerning the importance of a Chief within a Community as follows:
As the physical embodiment of his community, village or family, it is clear that the chief must occupy a central position in the whole system of communal tenure. The institution of chieftaincy is rather a unique one, so unique indeed that any attempt to describe it by reference to analogous English institutions is bound to mislead. Thus in the celebrated but cautious words of Rayner, C.J., which have been repeated and approved times without number in the cases, the chief is referred to as being to some extent in the position of a trustees, and as such holds the land for the use of the community or family. There is nothing sacrosanct about the idea of trusteeship nor is it necessarily a term of art, so that the description of the chief’s position by analogy to it may not be so terribly objectionable, once the essential
differences between him and a trustee strictly so-called are clearly understood. Perhaps the most fundamental of these differences is that whereas a trustee of land has the legal title vested in him and is therefore the legal owner of it, the legal title to communal land is vested in the quasi-corporation, the community, village or family, and not in the chief individually. To describe him as an owner, even in a loose sense, is therefore misleading. This is not to say, however, that the position of the chief is merely one of mere honour or dignity. In Adanji vs. Hunvoo (1908) 1 NLR 74, the plaintiff who had sued to establish his right to the chieftaincy of the Fiyento of Badagry was non-suited on the ground that the claim related only to a position of mere honour or dignity, and did not raise any issue of a legal or equitable right. This decision, with respect, shows a lack of understanding of the true significance of chieftaincy in Nigeria. It is a position which by its own inherent force carries certain rights and powers under customary law, particularly in relation to land a fact which distinguishes the claim in Adanji vs. Hunvoo from that in the English case of Cowley vs. Cowley (1901) A.C. 450 upon which the decision purports to have been based. Fortunately, the Courts have in subsequent cases shown a correct appreciation of the true significance of chieftainship under customary law as a position importing certain rights and powers. Thus in Ademola vs. Thomas (1946) 12 WACA 81 the plaintiffs claimed a declaration that the installation by the first and second defendants of the third and fourth defendants as Oluwo and Balogun of Iporo respectively was contrary to customary law, and an injunction restraining them from acting in those offices. It was argued that the Court could only have jurisdiction in a suit respecting chieftaincy when the claim was for rights in property attaching to the chieftaincy, the issue of title being merely incidental, and not when the claim was for a declaration of right to a title and there was no claim for consequential reliefs in relation to pecuniary rights attached thereto. In rejecting this argument, the WACA observed:
There is no question in this case of the titles claimed by the appellants being bare titles of honour or dignity such as was the case in Cowley vs. Cowley nor of it being uncertain whether these titles imply some rights in property and we do not think that this Court would be doing justice to the respondents claim were it to hold that, because there is in the writ of summons no specific claim in respect of the property rights attaching to the titles in question, therefore the claim was in respect of mere title to honour or dignity and, as such, outside the jurisdiction of the Supreme Court.
So also in Ow-Ale of Ikare vs. The Olukare of Ikare where both the Supreme Court and the WACA declined jurisdiction on the authority of Adanji vs. Hunvoo to entertain a claim by the plaintiff to the headship of Ikare and to the exclusive right to wear the crown and to enjoy all the other privileges attaching thereto, on the ground that that claim was no more than one to establish title to a position of mere precedence, the Privy Council held that, apart from the claim of exclusive right to wear the crown which is not a recognized legal right, the precise nature of the claim to the headship of Ikare should have been investigated with a view to finding what rights, powers and privileges, if any, attach to it, and that as it was not, the case must be retried.
It has been suggested that the rights and powers inherent in the position of a chief are merely those of a caretaker. While it is true that the chief is not a trustee/owner of the land of his community in the strict sense in which that term is normally understood, it is equally not true that he is only a caretaker. In a case where a member of a family who was not its head acted as caretaker of the family property, Kingdon, C.J., observed that perhaps the term caretaker is strictly speaking, a misnomer, but it is a term which is commonly used in this country to mean the member of the family, not necessarily the head, who acts as agent for the family in conducting its affairs. In strictness a caretaker is only a licence with nothing like the amplitude of the rights and powers possessed by the chief over communal land. Besides the Courts have sometimes distinguished between the rights of the chief and an ordinary member who acts as caretaker of communal land, casting upon the later the duty to account to each individual member for any
income from the land while relieving the former from it. Nor can the chief be regarded, merely as an agent of his community, village or family, for, as will presently be shown, his authority is inherent in his office and does not derive from any agency or mandate given by the members; the members are therefore quite incompetent to abrogate or restrict the chief’s rights and powers in relation to communal land without his consent. The true position appears to be that, as the physical alter ego of his community, village or family, the chief is the proper person to exercise the ownership rights of the community, village or family, subject to the individual rights of the members. He represents the family with respect to the exercise of these rights. Once the title of ownership is clearly separated from the exercise of the rights and powers to which it gives rise, the position of the chief can then be perceived in its true perspective; the former is vested in the community, village or family as a quasi-corporation while the latter belong to the chief. Thus, in Onitola vs. Bello the plaintiff was granted a declaration that, as head of the Onisemo Family in
Lagos, he was the person entitled to the management of all the properties of the family, to the possession of all such properties and of all monuments of title relating thereto. If a label is needed for the position, it is that of a manager or director which best fits it, though even this is not definitive enough nor altogether accurate.Plainly, said Bairamian, JSC, delivering the judgment of the Supreme Court in Akano vs. Ajuwonin common parlance people speak of the land of X, the head of the family; and if the members of the family themselves do so, they cannot complain if strangers do. From a lawyer’s point of view it may not be precise; but a lawyer, too, would find it hard to discover an English term by which to describe the position of the family head. In strictness he is not the owner; some think it is unwise to call him the trustee and import English ideas of trusts; perhaps manager is nearest but this term does not altogether fit either.The truth is that the position of the chief in relation to communal land is a pecuniary unique one, a uniqueness which is borne out by the fact that without the active participation of the chief, no outright alienation of the land can be validly made, notwithstanding that all the other members desired and approved of it.It follows, observed Harragin, C.J., in Agbloe vs. Sappor,that it is quite impossible for land to be legally transferred and legal title given without his consent. Indeed, while his consent suffices to validate a grant of occupancy right in the case of an outright grant of the land itself it is not enough for him merely to consent; he must be a party to the grant or conveyance for it to be effective to pass the title of ownership.
Section 68(1), (2) and 70 of the Evidence Act, 2011 provides yet the importance of traditional rulers, chiefs or traditional title holders within their communities by providing as follows:
68(1) When the Court has to form an opinion upon a point of foreign law, customary law or custom, or of science or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, customary law or custom, or science or art, or in questions as to identity of handwriting or finger impressions, are admissible.
(2) Persons so specially skilled as mentioned in subsection (1) of this section are called experts.
70. In deciding questions of customary law and custom, the opinions of traditional rulers, chiefs or other persons having special knowledge of the customary law and custom and any book or manuscript recognized as legal authority by people indigenous to the locality in which such law or custom applies, are admissible.
In my humble opinion, whether the selection, appointment or installation of the respondent under Onitsha Native Law and Custom was right or wrong that has to be determined after the learned trial Judge has heard the case to completion and rendered a decision either in favour of the respondent or the appellant as the case may be. As an interim measure the respondent was entitled to an interlocutory injunction in order that the status quo ante may be maintained pending the determination of the rights of the parties.
No citizen is to take the laws into their hands. Courts of Justice do not encourage self-help. Grievances should be submitted to the Courts of law and equity for
determination. In The Military Governor of Lagos State & Ors. vs. Chief Ojukwu & Ors. (1986) All NLR 233, Oputa, JSC held at page 247 as follows:
I have had the privilege of a preview of the lead reasons for ruling just delivered by my learned brother, Eso, JSC. I am in complete agreement with him that the applicants prayer for a stay of execution should be refused. I also agree with his sound reasoning and valid conclusions. But as the issues raised in this application affect radically and fundamentally the concept and practice of the Rule of Law in our country; the Protection of the Individual Citizen from an Abuse of Executive Power; and the Role of our Courts in the Preservation of Law and Order in our society; it is in my humble view, necessary that the fullest expression be given to the views of individual Justices of this Court at least to further emphasize the points so ably made in the lead Reasons for Ruling.
Admittedly, the country is now governed by military regime but it is to the external credit of all the military governments in Nigeria in general and the present military regime in particular, that each pledged itself to observe and to be bound by the basic principles of the rule of law. This is highly commendable for where the rule of law is forced to abdicate the rule of force is automatically enthroned. And this is why, and where, certain features of this application are rather disturbing.
In my humble opinion the learned trial Judge exercised a judicial discretion to grant the interlocutory order of injunction pending the determination of the substantive suit to meet the justice of the case. The power the Court of Appeal may exercise upon the hearing of an appeal is circumscribed by the requirements of the provisions of Order 4 Rule 9(1)-(5) of the Court of Appeal Rules, 2011 which provides as follows:
9(1) On the hearing of any appeal, the Court may, if it thinks fit, make any such orders as could be made in pursuance of an application for a new trial or to set aside a verdict, finding or judgment of the Court below.
(2) The Court shall not be bound to order a new trial on the ground of misdirection, or of the improper admission or rejection of evidence, unless in the opinion of the Court some substantial wrong or miscarriage of justice has been thereby occasioned.
(3) A new trial may be ordered on any question without interfering with the finding or decision on any other question; and if it appears to the Court that any such wrong or miscarriage of justice as is mentioned in Paragraph (2) of this Rule affects part only of the matter in controversy or one or some only of the parties, the Court may order a new trial as to the party only, or as to that party or those parties only, and give final judgment as to the remainder.
(4) In any case where the Court has power to order a new trial on the ground that damages awarded by the Court below are excessive or inadequate, the Court may in lieu of ordering a new trial:-
(a) Substitute for the sum awarded by the Court below such sum as appears to the Court to be proper;
(b) Reduce or increase the sum awarded by the Court below by such amount as appears in the Court to be proper in respect of any distinct head of damages erroneously included or excluded from the sum so awarded.
But except as aforesaid, the Court shall not have power to reduce or increase the damages awarded by the Court below.
(5) A new trial shall not be ordered by reason of the ruling of any judge of the Court below that a document is sufficiently stamped or does not require to be stamped.
The onus of showing that the decision of the learned trial Judge in granting the interlocutory injunction pending the determination of the substantive suit was substantially wrong or led to a miscarriage of justice for this Court to interfere with the decision has not been discharged by the appellant.
I resolve issues (ii)-(iv) against the appellant.
There is no merit in this appeal which I hereby dismiss. I award N50,000.00 cost to the 1st respondent.
RITA NOSAKHARE PEMU, J.C.A.: I had before now read in draft, the lead judgment just delivered by my brother, Hon. Justice JOSEPH TINE TUR JCA. I agree with his reasoning and opinion. I also dismiss the appeal. I abide by the consequential order made as to costs.
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I had the opportunity of reading before now the lead judgment of my learned brother, HON. JUSTICE JOSEPH TINE TUR, JCA. I agree with his conclusion that this appeal has no merit. I too dismiss the appeal. I abide by the order for costs made therein.
E.O. Ofodile, Esq. with him, Chidu Chigbo, Esq. –For Appellant
Dr. J.O. Ibik, SAN with him, O.J. Ibik, Esq., K.I. Obianzor, Esq. and C.M. Ejeh, Esq. for 1st Respondent.
E.A. Nwora, Esq. for 2nd Respondent. –For Respondent.