Adiakot Stephen Okomo & Ors V. Chief Daniel Udo Umoetuk & Ors (2003)

LawGlobal-Hub Lead Judgment Report

OKWUCHUKWU OPENE, J.C.A.

The plaintiffs who are now the respondents on 11th April, 1999, brought an action against the appellants as the respondents in the High Court of Akwa Ibom State, claiming as follows:

“1. A declaration that Ndon Idung Adiakot is a family unit in the village of Esit Urua in Eket Local Government Area of Akwa Ibom State and not a village recognized in law.

2. A declaration that the 1st respondent is not a village head and the 2nd and 3rd defendants are not the Chairman and Secretary respectively of any village council.
3. A perpetual injunction restraining the defendants from parading themselves, acting in any manner howsoever, giving directives or orders as the village head, village council chairman and secretary respectively of a non existent Ndon Idung Adiakot village in Eket Local Government Area.”

As a result of this the respondents on the 17th of April, 1999, filed a motion on notice praying the court for an order:

“Restraining the defendants from parading themselves, acting in any manner howsoever, giving directives or orders as the village head, village council chairman, and secretary respectively of a non-existent Ndom Idung Adiakot village in Eket Local Government Area of Akwa Ibom State until the determination of the substantive suit.”

In his considered ruling delivered on 9/2/2000. The learned trial Judge Okon, J. granted the application. The appellants unhappy and dissatisfied with the ruling have appealed to this court. In accordance with the rules of this court both the appellants and the respondents filed their briefs of argument.

In the appellants brief of argument, two issues were identified for the determination of the court and they read as follows:-

“1. Whether in the circumstance of this case the trial court was right in granting an order of interlocutory injunction in the term sought by the applicant.

2. Whether the learned trial court was justified in determining the substantive issues between the parties in a ruling on an application for interlocutory injunction.”

The first point taken up in the appellants brief of argument by the appellants counsel, Chief Assam Assam is what is the status quo which the grant of an application seeks to maintain. He said that this is the question which the courts have always been enjoined to ask at the hearing and to determine at the ruling of an application for interlocutory injunction and that it determines the balance of convenience, what the remedies for the infringement are, if any, and whether the grant will do more harm than refusal, that the affidavit must disclose status quo ante bellum. He referred to paragraphs 15 and 30 of the respondent’s affidavit and also exhibit B referred to in paragraph 13 of the said affidavit in which it was stated that the 1st appellants in 1997 recommended one of his citizens to the Chairman of Eket Local Government for the issuance of a certificate of origin as a member of Ndong Idung Adiakot village and argued that they neglected to aver whether the Chairman of Eket Local Government Area Council granted the request or not.

He also referred to another document annexed by the respondents exhibit C which is a letter written to the Speaker of Akwa Ibom House of Assembly in 1992 by the 1st appellant reasserting the rights of the Ndong Idung Adiakot village to recognition of the Government as the village has been long standing as a village community.

Referring to the appellants’ counter-affidavit, he stated that the appellants had denied advocating for the creation of a new village out of Esit Urua village and that their case is that their’s is an old village which was only omitted from the list of the villages published by Government of Akwa Ibom State and that their efforts have been directed at ensuring that the said village was gazetted as a village under the laws of the Akwa Ibom State and that they have been carrying on activities over thirty years as a distinct village and the most recent being the launching of a development fund in 1994.

He said that in paragraph 11 of the counter-affidavit that, the appellants stated that a committee of government on omitted villages in 1989 recommended the village as an old village for recognition and that the said report was annexed as exhibit A and that the two villages have two distinct village administrations and that this is recognised by their clan, the Afaha clan council of which the two viliages are members. He stated that the facts disclose that as at the commencement of the action that the 1st appellant had been village head for 19 years and that the village had never been a pan of Esit Urua village as it has existed from time immemorial as a separate and distinct entity recognised by the clan and the Local Government and even recommended by a State Government Committee for gazetting as a village under the laws of Akwa Ibom State.

He then submitted that the above is the status quo ante bellum upon which the applicants were entitled to have their application heard and determined which needed to be preserved and that this could not be the pressing injury against which the applicants needed to be protected.

To buttress his argument, he referred to the following cases. Akapo v Hakeem-Habeeb (1992) 6 NWLR (Pt. 247) 266; Odumeru v. Adenuga (2000) 4 NWLR (Pt. 652) 224; Orji v. Zaria Industries Ltd. (1992) 1 NWLR (Pt. 216) 124; John Holt (Nig.) Ltd. v. Holts African Workers Union and Cameroun (1963) 2 SCNLR 383; Obeya Memorial hospital v. A.-G., Federation (1987) 3 NWLR (Pt. 60) 325; Kotoye v. CBN (1989) 1NWLR (Pt.98) 419.

He submitted that the learned trial Judge failed to look at the whole case and that the grant of interlocutory injunction rather had the effect of going beyond the status quo to create for the parties a completely different scenario in order to predicate an order of the sort granted by the court and that the application was a subterfuge to secure the orders granted without the formality of a trial.

He also submitted that the respondents had failed to show which of their rights were violated for which they needed compensation and which could only be adequately effected by way of an interlocutory injunction. He also argued that the applicants must among other things show that there is a serious issue to be tried at the trial and also that the balance of convenience of the parties and the nature of the injury which the defendant on one hand would suffer if the injunction was granted and the case is subsequently decided in his favour and that which the plaintiff on the other hand might sustain if the injunction was refused and ultimately obtains judgment.

He argued that the respondents had failed to expose fully their legal right, the nature of their injury and seriousness of the question to be tried and that these had denied the trial court the material upon which to determine where the balance of convenience lay.

Referring to the ruling of the learned trial Judge, it was submitted that there was no other issue left to be resolved at the trial as all the issues had been summarily resolved without being contested at the trial.

He referred to Iweka v. SCOA (Nig.) Ltd. (2000) 7 NWLR (Pt. 664) 325; Mortune v. Gambo (1979) 3-4 SC 54; Kufeji v. Kogbe (1961) All NLR 113.

It was argued that the learned trial Judge in his ruling had decided and pronounced on the issues sought to be resolved at the trial without giving the parties the opportunity to ventilate and that he had completely pre-judged the issues and finally that the ruling appealed against offends all known principles guiding the grant of an interlocutory injunction and should therefore be set aside.

In the respondent’s brief, Mr. Ekanem, the learned Counsel for the respondents admitted that the essence of granting an order for interlocutory injunction is the maintenance of the status quo ante bellum between the parties to the suit. He stated that the respondents had averred in paragraphs 9 and 10 of their affidavit that the appellants had been agitating for the creation of Ndon Idung Adiakot village out of Esit Urua, since 1970 and that the agitation remained peaceful and unsuccessful resulting to the Nung Adiakot family remaining still in Esit Urua village as part of that village. He referred to paragraphs 11, 13, 16, 17, 18, 19, 20, 21, 22 and 23 of the respondents affidavit, where they deposed to various acts of the appellants inciting violence and force into the hitherto peaceful agitation for the creation of the village.

He submitted that the status quo ante bellum which the court sought to maintain by its order of injunction is the state of affairs of peaceful and non provocative demand for creation of Ndon Idung Adiakot village, while maintaining the unity of Esit Urua as one village, that the appellants lay claim in ownership of certain properties in Esit Urua village, but failed to state how they became joint owners of the properties.

He referred to page B274 of the supplement to the Eastern Region of Nigerian Gazette No. 76, Vol. 6 of 9th May, 1957, which listed the villages in the then Eastern Region and their constituent families and stated that Esit Urua is listed with five constituents Ekpuk or families including Nung Adiakot family.

He submitted that the assertion that Ndon Idung Adiakot exists as a different village from Esit Urua before the order for injunction was granted flies in the face of the afore going facts and legislation and that assuming that it existed as a village that it did so illegally not having been recognised by law.

It is his further submission that the principles of law in Akapo v. Hakeem-Habeeb (supra) and Odumeru v. Adenuga (supra) apply on this case.

He argued that the right of a party to the preservation of status quo ante bellum does not envisage the preservation of a clearly illegal status quo which state of illegality, as in this case necessitated the commencement of the suit and that the appellants have failed to identity the proper status quo in their argument, that the exhibits in the counter-affidavit attempting to show the existence of Ndon Idung Adiakot as a village were made from 1990, effectively lending credence to paragraphs 9, 10, and 11 of the respondents’ affidavit that there had existed a peaceful agitation for creation of Ndon Idung Adiakot as a village out of Esit Urua, until 1990 and that thereafter that the appellants introduced force, threat to peace and violence into the agitation. He submitted that the proper status quo is that of the united Esit Urua village with one village head and council and 5 families including Ndon Idung Adiakot.

On the issue of the balance of convenience, it was submitted that no matter how convenient it will be to refuse an application that the court will not do so when the act or state of things complained of and sought to be restrained constitute an illegality or threat to peace and order as in this case and that the immediate reason for the application by the respondents was the threat to peace and order by the activities of the appellants in the village as deposed to in paragraphs 29-35 of the respondents affidavit.

It was then argued that it will be irresponsible for the leaders of the community to wait for the law enforcement agents to contain the situation even before it starts as in this case. He referred to: Orji v. Zaria Industries supra; Obeya Memorial Hospital v. A.-G., Federation supra.

It is his contention that the respondents acted to protect their right to peaceful existence in the village and that the appellants have no legal right whatsoever to act as a separate village or create a situation of disorder in the village and that the court was faced with a situation of the legal right of the respondents and no right at all of the appellants. Finally on this issue, he stated that at the time the respondents applied for an order of injunction that they had filed their writ of summons and the statement of claim disclosing the issue to be tried by the court and that the respondents had satisfied the conditions precedent to the grant of the order of interlocutory injunction.

In respect of issue No.2, it was submitted that the lower court did not dispose of the entire suit and that the learned trial Judge only made pronouncement on and decided issues that were vigorously canvassed before him by both sides and that the issue whether Ndon Idung Adiakot is a family unit or village of its own was hotly argued.

It was also submitted that to be able to do justice and properly determine the application that the learned trial Judge had no option than to first determine whether there is a legal basis for the opposition of the order prayed for which the legal basis is the existence of Ndon Idung Adiakot in law as a village and that it is not every pronouncement of a Judge in a ruling or judgment that is material in determining the merit or demerit of an appeal against a ruling or judgment.

He referred to: Enajobi v. Olanipekun (1985) 4 SC (Pt.2) 156 at 163; Sodukwe v. Ogunbiyi (1998) 8 NWLR 339, (1998) 60 LRCN 4001; Anyanwu v. Mbara (1992) 5 NWLR (Pt. 242) 386 at 400.

It was finally submitted that the observation or pronouncement of the learned trial Judge has not disposed of the entire suit as canvassed by the appellant.

The facts of this case are adumbrated in the affidavit evidence before the court. In the respondents affidavit in support of their application, it is their case that Esit Urua has 5 constituent families and that the respondents represent the 5 families and that the appellants are all from one family in the village, that is, Nung Adiakot family whose family head is the 5th respondent, that sometime in 1990, the appellants resuscitated the agitation for the creation of a village out of their family Nung Adiakot from Esit Urua village as a separate village. It is also stated that their activities and behaviour threatened the peace and order of their village and that the respondents filed their action to prevent the outbreak of law and order.

In their counter affidavit, it is the contention of appellants that Ndon Idung Adiakot had existed as a village from time immemorial and for what amounts to inadvertence has been omitted from Government Gazettes, that in recognition of this that the Government set up a committee to compile the list of the omitted villages and that their report has been annexed as exhibit A.

It is further contended that their village had existed side by side and has been so contiguous to Esit Urua that the respondents had been under the opinion that it is and should remain a family of Esit Urua village and that the Afaha clan in Eket Local Government Area to which both Esit Urua and Ndong Idung Adiakot belong to recognises them as separate and distinct village.

Having had a perusal at the facts of this case and the arguments of the counsel and also the ruling of the learned trial Judge, I am of the view that it, will be more convenient and tidier to consider together the two issues formulated in the appellants’ brief which have also been adopted by the respondents as they did not formulate any issue in the respondents’ brief.

It is well settled that in an application for an interlocutory injunction that the applicant must show among other things that there is a serious issue to be tried at the trial and also that the balance of convenience of the parties and nature of the injury which the defendant on one hand would suffer if the injunction was granted and the case is subsequently decided in his favour and that which the plaintiff on the other hand might sustain if the injunction was refused and he ultimately obtains judgment is in his favour.

It therefore follows that the court must be satisfied that the claim is not frivolous or vexatious and that there is a serious question to be tried. Further, it must be emphasized that it is a very important precondition that the applicant must show that he has a legal right which is threatened and ought to be protected and where the applicant has failed to establish a recognisable legal right the court cannot grant the application. See. Obeya Memorial Hospital v. A.-G., Federation (supra). Kotoye v. CBN (supra); Akapo v. Hakeem-Habeeb (1992) 6 NWLR (Pt. 247) 266; Odumeru v. Adenuga (2000) 4 NWLR (Pt. 652) 224.

If one goes through the ruling of the learned trial Judge which is at pages 77 to 85 of the records, it can be very easily seen that the learned trial Judge made so many important findings or pronouncement which not only touched the substantial issues but also disposed of the whole case itself.

In dealing with the issue of status quo; at page 80 of the records, he observed:

“In this case what is the status quo which is to be maintained?”

At page 81, he found as follows:

“However, the learned Counsel for the respondents has contended that the applicants have not established any right which they want the court to keep in status quo.

In view of all what I have said above, I have the view that inspite of the respondents denial, the applicant’s affidavit paragraphs 4-6 in combined effect have shown that the status quo which should be maintained is the Esit Urua village corporate existence as one entity having five families and one village head”

On the question of whether there is a serious issue to be tried at the hearing, at page 82 of the records, he stated as follows:

“The question is, has Nung Adiakot … been always a village.

Nung Adiakot is not listed there as a village. But as a unit of Ekpuk in Esit Urua village …

However, Nung Adiakot is not listed in the Edict as a village.”

After considering what is a village under section 43(1) of Akwa Ibom State Traditional Rulers Edict No. 15 of 1990 and also whether the 1st appellant is a traditional ruler, at page 83 of the records, he opined as follows.

“There is no averment in the counter-affidavit that he has been recognised as the village head of Ndon Idung Adiakot, I am satisfied that there is a serious issue to be tried and that the claim is not frivolous or vexatious”.

He did not stop at this because at page 84 of the records, he observed.

“In the course of this ruling, I had held that Ndong Idung Adiakot is not a village known to law and that the 1st defendant is not a village head as defined in section 43(1) of the Edict.”

As has been shown from the above, the learned trial Judge had found that the status quo that should be maintained is the Esit Urua corporate existence as one entity, having five families and one village head, that Ndong Idung Adiakot has not been listed as a village but as a unit or Ekpuk in Esit Urua village and that there is no averment to show that the 1st appellant has been recognised as a village head.

The life issues in this matter is whether Esit Urua village has five families, which include Ndong Idung Adiakot as the respondents claim or that Ndong Idung Adiakot is a separate village, lying side by side with Esit Urua as the appellants contend in their counter affidavit the appellants deposed to the facts that their village is an old village which had been omitted from the Government Gazettes due to inadvertence, that the government set up a committee which compiled a list of the omitted villages and that the report was annexed to the counter-affidavit as exhibit A that Afaha clan in Eket Local Government to which both Esit Urua and Ndong Idung Adiakot belong to recognise both of them as separate and distinct villages that the 1st appellant is their village head and that he sits in Afaha clan council together with the village head of Esit Urua village, that the 2nd and 3rd appellant were in 1998, elected chairman and secretary respectively of their village council after the dissolution of the village executive.

It is also their contention that in 1998, they launched a fund for the development of the village which yielded the sum of N400,000.00. All these were denied by the respondents who alleged various acts of defiance by the appellants which they said led to a great deal of tension.

The above are all life issues that are to be resolved by the learned trial Judge at the trial in which evidence will be led to show whether Ndon Idung Adiakot is a village separate and distinct from Esit Urua as the appellants contend but instead of identifying those issues that call for a trial, the learned trial Judge after finding that Ndon Idung Adiakot is not a village, but a unit or Ekpuk in Esit Urua village and that there is no averment that the 1st appellant has been recognized as a village head of Ndon Idung Adiakot, he observed as follows;

“I am satisfied on the basis of what I have highlighted under the first question for determination that there is a serious issue to be tried and that the claim is not frivolous or vexatious.”

With due respect to the learned trial Judge, his ruling has not only touched the substantive issue to be determined at the hearing, but has also determined the whole case. He has decided that the corporate existence of Esit Urua as one entity with five families and one village head has to be maintained and that Ndon Idung Adiakot is one of the families in Esit Urua, I wonder what is left to be determined at the trial.

It is settled law that in an interlocutory application that the court must confine itself to issues necessary for disposing of the application and avoid pronouncement on any matter which touches the substantive suit. See: Chief Daniel Ogbonnaya & Ors. v. Adapalm (Nig.) Ltd. (1993) 5 NWLR (Pt. 292) 147, (1993) 6 SCNJ 23; Iweka v. S.C.O.A. (Nig.) Ltd. (2000) 7 NWLR (Pt.664) 325; Mortune v Gambo (1979) 3-4 SC 54; Kufeji v. Kogbe (1961) 1 All NLR 113.

At page 85 of the records, he observed:

“In the final result, the application is granted as prayed. The defendants/respondents are hereby restrained from parading themselves, acting in any manner howsoever, giving directives or orders as the village head, village council chairman and secretary respectively of a nonexistent Ndong Idung Adiakot village in Eket Local Government Area of Akwa Ibom State, until the determination of the substantive suit. Because of the peculiar nature of this case, I shall be favourably, disposed to granting an application for accelerated hearing of the main case if such an application is brought before me.”

(Italics for emphasis).

If Ndon Idung Adiakot is a non-existent village, I wonder what the learned trial Judge will determine in the substantive suit.

The learned Counsel for the respondents had argued that the pronouncements of the learned trial Judge have not disposed of the entire suit and that the appellants would have waited till the end of the trial and appeal should they lose the case, it will be fool hardy for the appellants to take such a course where the trial Judge had already decided that Ndon Idung Adiakot is a non existent village and that it is one of the five families in Esit Urua village in Eket Local Government Area.

In fact, the appeal can succeed on this score alone.

In application for interlocutory injunction as in this case. It is only the function of the court to determine whether or not there is a serious issue to be tried at the hearing of the substantive suit and having determined that there is a serious issue to be tried and that the action is not frivolous and vexations, he will stop there and go to other aspects of the matter.

There is no doubt that there is a serious issue in this case to be tried at the hearing which is whether Ndon Idung Adiakot is a non existent village, but one of the five families in Esit Urua as the respondents claim or a separate and distinct village as contended by the appellants.

In dealing with the issue of status quo which should be preserved, the learned trial Judge held that the status quo which should be maintained is the Esit Urua corporate existence as one entity having five families and one village head. This finding can be very easily faulted because there is no where in their supporting affidavit that they deposed to that there was a pressing injury against which they needed to be protected. It will not be right to say that at the time that the respondents brought their action that the village existed as one entity with five families and a village head.

In considering whether to grant an application for interlocutory injunction, the Judge must act judicially and judiciously. He must look at the whole case. He must have regard not only to the strength of the claim, but also the strength of the defence and then decide on what is best to be done, some times, it is best to grant an interlocutory injunction so as to maintain the status quo until the trial. At the other times, it is best not to impose a restraint on the defendant but leave him to go ahead. The remedy is so useful that it should be kept flexible and discretionary. It must not be made subject to strict rules. In other words, each case depends on its own peculiar circumstances.

See Odumeru v. Adenuga (supra).

If the learned trial Judge had applied these principles to the instant case, he would not have made the grant which rather had the effect of going beyond the status quo for the parties and created a completely different scenario in order to predicate an order of the sort granted by the court.

I entirely agree with Chief Assam Assam, the learned Counsel for the appellants that the application was a subterfuge to secure the orders granted without the formality of a trial.

Another point is that the learned trial Judge had failed to properly direct his mind to the balance of convenience of the parties and the nature of the injury which the appellant on the one hand would suffer, if the injunction is granted and the case is subsequently decided in his favour and that which the respondents on the other hand might sustain if the injunction was refused and he ultimately obtained judgment in his favour.

See. Kotoye v. CBN (supra); Obeya Memorial Hospital v. A.-G., Federation (supra); Odumeru v. Adenuga (supra)

The respondents in their supporting-affidavit, stated as follows.

“16. That in 1999, the respondents directed members of Nung Adiakot family to disobey directive of the Esit Urua village council and not to participate in any village communal activity.

17. That the respondents also directed members of Nung Adiakot family not to allow the village of Esit Urua to take the benefit of communal properties like palm fruits on their land for village development projects.
18. That consequently acting on the foretasted instruction of the respondents a few members of the respondents’ family started trouble in village by preventing others from participating in community projects and by preventing the village from harvesting communal palm fruits.
19. That these same people acting on the instructions of the respondents and claiming to owe allegiance to a separate village council proceeded to harvest the palm fruits of Esit Urua village on a date fixed by the and directed by the respondents.
20. That this generated a great deal of tension in the village and violence broke out in the village resulting in multiple police arrest and detention.
21. That upon noticing the tension and threat to peace and order in the village some well meaning and enlightened sons of the village met with the 1st respondent and pleaded with him not to interfere in village matters and not to cause the breach of peace in Esit Urua village. The 1st respondent promised not to do so but reneged on his promise.
22. That consequently one of the sons of Esit Urua village, who met with 1st respondent Dr. Okon Umoetuk wrote to the 1st respondent complaining to him about his conduct and its effort on the village of Esit Urua. Attached and marked exhibit D is a copy of the letter of Dr. Umoetuk to the 1st respondent.
23. That subsequently we as family head of Esit Urua village wrote to the 1st respondent requesting him to explain to us, why he is disrupting the peace and order of the village. Attached and marked exhibit E is a copy of our letter.
24. That upon receipt of our letter 1st respondent ignored the letter and rather, proceeded to the Nigeria Police Force Zone 6 Headquarters in Calabar and procured to the policemen there to arrest all the five family heads of Esit Urua village, including the son of Chief Warrie Edulk, the family head of Nung Adiakot respondent’s family and detained all of us at Calabar.
25. That in the presence of policemen at Calabar, the respondents told us that they will never ever succumb to the authority of the village council of Esit Urua and will continue to act and direct their followers to act as members of a separate and distinct village of Ndon Idung Adiakot.
26. That we were surprised by this utterance of the respondents before the police, more so as it portends more violence and discord for the village of Esit Urua.
27. That consequently we consulted Francis Ekanem, Esq. of counsel and instructed him to petition to the Commissioner of Police Akwa Ibom State complaining about the conduct of the respondents and its threat to the peace of Esit Urua village. Our said counsel did so. Attached and marked exhibit F is a copy of the petition.
28. That to our surprise, the police refused to react to the petition and rather directed us to seek redress in the law court.
29. That emboldened by the obvious inaction of the police to restrain them the respondents commenced another round of disruptive activities in the village directing some members of their family to openly ignore all forms of authority in Esit Urua village and to act in all ways as members of Ndon Adiakot village.
30. That the respondents now schedule and held separate activities with a few of their family members as members of Ndon Idung Adiakot village and have mapped out plans to commence communal activities as members of Ndon Idung Adiakot village.
31. That these activities and conduct of the respondents have generated a great deal of tension in the village as youths of Esit Urua village are poised to resist the attempt of the respondents to show discard in the village.
32. That we as family head of Esit Urua village, are afraid that serious violence may erupt if the respondents are restrained from behaving as village head, village council chairman and secretary of a non existent Ndon Idung Adiakot village and issuing out orders and directives to some of their family members in that capacity.
33. That the threat to the peace and order of Esit Urua village, emanates only on account of the conduct of the respondents hereinbefore enumerated and will cease once this Honourable Court restrains them from so acting.
34. That it is in the interest of justice, peace and order that this Honourable Court grants this application and restrains the respondents as prayed.
35. That we believe very strongly that if not restrained, the respondents will cause an out break of serious violence in Esit Urua village before the conclusion of the substantive suit.

36, That we are willing and ready to enter into any bond and give any undertaking, that this Honourable Court may require from us to grant this application.

If one goes through the above and the whole length and breadth of the respondents affidavit, there is no where it is shown that the respondents have a legal right, which is threatened and ought to be protected and that the injury that will be caused by the violation of their right will not be adequately compensated in damages recoverable in their favour at the trial, the court has no power to grant an injunction where the applicant has not established a recognisable legal right. Whatever is the injury which the appellants need such a protection must also be weighed against the corresponding need of the respondent to be protected against the injury resulting from the respondents having, been prevented from exercising their own legal right for which they could not be adequately compensated under the respondents undertaking in damages if the uncertainty is resolved in the appellants’ favour at: the trial.

See: Obeya Memorial Hospital v, A-G,. Federation supra Orji v, Zaria Industries Supra, Kotoye v, C.B.N Supra.

The only thing shown in the respondents affidavit is that the appellants are unilaterally creating a village and acting as village head, village council chairman and secretary respectively, that they directed members of Nung Adiakot family not to allow the village of Esit Urua to take the benefit of village communal properties like palm fruits on the land for village development projects and that this has generated a great deal of tension in the village and that violence broke out in the village resulting in multiple police arrest and detention. I must observe that the learned trial Judge had not fully and adequately considered where the balance of convenience for the parties lies and the whole circumstances of this case, and if he had done so obviously, he would have seen that the balance of the convenience lies in favour of the appellants and not the respondents, that is, that the injury which the appellants would suffer, if the order of the interlocutory injunction is granted and the case is subsequently decided in their favour is greater than that which the respondents on the other hand might sustain if the injunction was refused and they ultimately obtain judgment in their favour.

If the learned trial Judge had fully and adequately addressed his mind to the whole circumstances of this case and also all these issues, he would not have found that the respondents’ affidavit has shown that the status quo which should be maintained is the Esit Urua village corporate existence as one entity having five families and one village head and also granting an injunction against the appellants from parading themselves, giving directives or orders as the village head, village council chairman or secretary respectively of a non-existent Ndon Idung village.

Finally, I must observe that the learned trial Judge at page 77 of the record observed that the parties had filed and exchanged their pleadings and that that was very impressive and at page 85 of the record, he further observed that because of the peculiar nature of this case that he would be disposed to grant an accelerated hearing of the main case if such an application was brought before him.

I must say that having observed the peculiar nature of the instant case that he would not have granted the order sought which would definitely dispose of the main case, the only course open to him is to have ordered an accelerated hearing of the case and dispose of the matter straight away and thereby obviate what has happened in this case. On the whole, I have considered all the evidence in this case and I am of the firm view that the appeal is meritorious and that it ought to be allowed. In the result, I allow the appeal. I set aside the ruling of the High Court of Akwa Ibom State per Okon, J. delivered at Eket on the 9th day of February, 2000. I hereby, order that this case be remitted to the High Court of Akwa Ibom State for trial by another Judge.

The appellants are entitled to costs which I assess and fix at the sum of N5,000.00

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Other Citations: (2003)LCN/1456(CA)