Chief Leonard Adoki V. Mr. Promise Robinson (2009)

LawGlobal-Hub Lead Judgment Report

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.

This is an appeal against the ruling of the High Court of Rivers State, Ahoada Judicial Division delivered on 31/10/05 refusing, the appellant’s application for an interlocutory injunction against the respondent. The appellant was dissatisfied with the decision. On 14/2/06, pursuant to a motion on notice filed on 7/12/06, he was granted leave by this court to appeal against it. The notice of appeal dated 9/11/05 containing four grounds of appeal was deemed filed on 14/2/06, Also pursuant to the said motion time was enlarged for the appellant to file his brief of argument. The appellant’s brief dated 7/12/05 was deemed duly filed and served on 14/2/06.

The respondent, although duly served with all the processes in this appeal, including the appellant’s brief of argument did not react thereto or file any process herein. Consequently this Court on 29/10/08 granted the appellant’s application filed on 9/11/06 for the appeal to be heard on his brief alone. When the appeal came up for hearing on 27/5/09 the respondent was absent and unrepresented by counsel. We were satisfied from our records that he had been duly served with a hearing notice against that date for the hearing of the appeal. Mr. G.V Obomanu, learned counsel for the appellant adopted the appellant’s brie and urged us to allow the appeal.

The appellant formulated the following issues for the determination of the appeal:

1. Whether the court below ought to maintain the status quo and preserve the res. (Grounds 2 & 3)
2. Whether the court below adequately and sufficiently considered the materials placed before it by the appellant. (Ground 1)
3. Whether the court below was biased by descending into the arena and suo motu proffering (sic) arguments in support of the respondent.

(Ground 4)

Having carefully examined the three issues formulated by the appellant, I am of the considered view that they could be conveniently condensed into one sole issue thus: Whether the learned trial Judge was right in refusing to grant the application for interlocutory injunction. The appeal shall be determined on this issue. All the submissions in the appellant’s brief will be considered in determining this issue.

Before going into the merits of the appeal, it is necessary to state briefly the facts that gave rise to it. By paragraph 25 of his statement of claim dated 29/9/05, the plaintiff (now appellant), sought the following reliefs against the defendant (now respondent) before the High Court of Rivers State, Nchia:

(a)A declaration that the plaintiff is the Uwema, Oolah Ema, Paramount Ruler/Chief of Amalem Town, Central. Abua and as the Prime Minister of Abua has the exclusive right, power and authority to install the Uwema Abua and present him for coronation by the Abua Odual Council of Traditional Rulers and Chiefs.

(b)A declaration that the defendant is not the Uwema of Amalem Abua and he has no right to perform the function of the Uwema of Amalem or to parade himself as such and that it is contrary to the custom and tradition of the Amalem Abua for the defendant to perform the functions of the Uwema Amalem or to parade himself as such when the incumbent Chief (plaintiff who was properly installed and coronate) is still alive and on the throne of the Uwema Amalem Abua.

(c)A perpetual injunction restraining the defendant, either by himself, his agents, servants, privies and cohorts from installing himself, getting installed, placing himself out, parading himself, as and/or from claiming to de the Uwema/the Chief/ the Paramount Chief of Amalem Abua and/or from performing the functions of the Uwema/ the paramount ruler of Amalem Abua and/or from interfering in any manner whatsoever with the performance by the plaintiff of his functions as the Uwema Oolah Emah/ the Chief/Paramount ruler of Amalam Abua, Capital of Abua clan.

(d)N500, 000.00 (Five Hundred Thousand Naira) damages for interference with, usurpation of, and infringement on the rights, functions and duties of the plaintiff.

On 2/7/2001 the appellant obtained an ex-parte order of interim injunction against the respondent in the following terms:

“IT IS HEREBY ORDERED that an intirim injunction be and is hereby granted restraining the defendant/respondent, his agents, servants and or privies or cohorts from appointing the defendant/respondent or any person as tile Chief/paramount Ruler/Uwema/Oolah Ema of Amalem Abua and/or from interfering in any manner whatsoever with the performance by the plaintiff/applicant of his functions as the Uwema/Oolah Ema/Chief/Paramount Ruler of Amalem Town Abua pending the determination of the motion on notice for interlocutory injunction.”

The motion on notice for interlocutory injunction seeking the same relief pending the determination of the substantive suit, which was dated and filed on 28/6/2001, was adjourned to 17/7/2001 for hearing. The appellant filed a 19-paragraph affidavit with exhibits annexed thereto in support of the application. The respondent filed 20-pragraph counter affidavit deposed to on 26/7/2001. The appellant, on 11/10/2001, deposed to a further affidavit in support of the motion with various exhibits annexed thereto. On 28/11/2001 the respondent filed a further counter affidavit and annexed thereto an exhibit, which was inadvertently omitted from the first counter affidavit. On 14/5103 the respondent filed a further further counter affidavit.

On 27/4/05 learned counsel for both parties were in court when learned counsel for the appellant moved his application. He did not conclude his submissions on that day and the application was adjourned 10 7/6/05 for continuation. There is no record of what transpired on 7/6/05. However on 7/7/05 learned counsel for the appellant concluded his submissions. The respondent and his counsel were absent. The matter was therefore adjourned to 14/9/05 for reply. They were absent again on 14/9/05. Upon the application of learned counsel for the appellant their right of reply was foreclosed and the application adjourned to 31/10/05 for ruling. In a considered ruling, delivered on 31/10/05, the learned trial Judge refused the application. He held inter alia at page 8 of the record thus:

“The facts before me show that the respondent, whether rightly or wrongly, had been installed the Uwema of Amalem. It is trite that injunction cannot issue to restrain the act or acts already concluded ….

On the issue of lack of fair hearing before the purported unlawful removal of the applicant as argued by his counsel, and the reference to paragraph 2 of Exhibit C, it is my view that such argument is more appropriate at the hearing of the substantive suit not at this stage.

From all have said hereinbefore, I hold that this application lacks merit and should be refused. T. e same is hereby refused.”

The appellant, Chief Leonard Adoki, settled his brief of argument.

He argued that one of the considerations for the grant of an application for interlocutory injunction is the maintenance of the status quo ante bellum. He referred to: Akapo Vs Hakeem-Habeeb (1992) 6 NWLR (247) 266 at 271. He referred to his supporting affidavits wherein he averred that he had passed through all the processes required for becoming the Uwema Amalem Abua. He referred to his letter of appointment dated 7/5/2001 issued by the Abua/Odual Local Government annexed to the supporting affidavit as Exhibit A. He submitted that on 23/6/2001 he received Exhibit B, a letter dated 15/6/2001 written by the Amalem Community Council and addressed to the Chairman .Abua/Odual Council Of. Chiefs purporting to have dethroned him and that this was what gave rise to the suit before the lower court. He submitted that the respondent admitted that he was the Uwema Amalem Abua, but contended that he had been removed. He however stated that the respondent, by his own admission, had not concluded the process of becoming the Uwema Amalem Abua. He therefore argued that the status quo to be maintained was the position of the parties before the hostilities that led to the institution of the suit. He submitted that since the act complained of had not been completed the authorities of John Holt (Nig.) Ltd. Vs Holts African Workers Union (1963) 1 ALL NLR 379 at 384; Commissioner for Works (Benue) Vs Devcon Ltd. (1988) 3 NWLR (83) 407 and Gov. Imo State Vs Anosike (1987) 3 NWLR (66) 663 relied upon by the court below are inapplicable to the facts of this case.

The appellant argued that the learned trial Judge, in refusing the application, failed to give due consideration to his affidavit evidence and rather placed reliance on the respondent’s averment that the act had been completed. He submitted that where there is conflicting affidavit evidence the court is not entitled to accredit one and discredit the other and ought to call for oral evidence to resolve the conflict. He relied on the case of Governor of Imo State Vs Anosike (supra). He submitted that the court ought not to have made a finding at the interlocutory stage that the act he sought to restrain had been completed, as the issue was in contention and was to be resolved at the hearing of the substantive suit. He referred to: Governor of Imo State Vs Anosike (supra); Kufeji Vs Kogbe (1961) 1 ALL NLR (Part 1) 113.

The appellant contended that as the respondent’s right of reply was foreclosed, there was no legal argument in support of his counter affidavits. He submitted that the learned trial Judge descended into the arena and made out a case for the respondent upon which he based his decision. He submitted that the decision of a court must be confined to the issues raised by the parties. He relied on: Commissioner for Works (Benue) Vs Devcon (supra). He submitted that the action of the learned trial Judge raised the inference of a real likelihood of bias in the mind of the ordinary man. He referred to: Adio Vs A.G. Oyo State (1990) 7 I NWLR (163) 448 at 452 – 453. He urged us to allow the appeal.

The principles that guide the court in the grant or refusal of an application for interlocutory injunction are well settled. They include:

a. That there is a serious issue to be tried: the applicant is only required to show a real possibility” not probability of success at the trial. See: Obeya Memorial Hospital Vs A.G. Federation & Anor.

(1987) 3 NWLR (60) 325 at 340 B – C; Kufeji Vs Kogbe (1961) ALL NLR 113 at 114.

b. That the balance of convenience is on his side; that more justice will result in granting the application than in refusing it. The onus of proving that the balance of convenience is on his side is on the applicant. Se : Kotoye Vs C.B.N. (1989) 1 NWLR (98) 419.

c. That damages would not be adequate compensation for his damage or injury in the event that he succeeds at the’ end of the day.

d. The conduct of the applicant from the time of the act complained of to the filing of the application: that he has not been guilty of undue delay.

e. That the applicant has given an undertaking in damages in the event that the order ought not to have been made.

The main consideration in granting an application for interlocutory injunction pending the determination of a pending suit is to preserve and protect the rights of the parties from destruction by either of the parties where such right is threatened by imminent danger from the action of the other. The res in an action, which a court of record has inherent power to preserve, may be tangible, as in the case of funds in dispute or intangible, as in a right to decide who succeeds to the rulership of a community. See: Okafor Vs A.G. Anambra State (1988) NWLR (79) 736 at 750 E; Kigo (Nig) Ltd. Vs Holman Bros. (Nig) Ltd. (1980) 5 – 7 SC 60 at 73.

In light of the above principles, the first issue to be determined is whether the appellant showed that there was a serious Issue to be tried at the hearing of the substantive suit.

In his affidavit in support of his motion on notice filed/on 28/6/2001, the appellant averred thus:

1. “I am the plaintiff/applicant herein and as such conversant with the facts of this case.
2. Sometime in December 1995 while I was still practicing in the chambers of Chike Ofodile SAN .,. my Obi and Royal Family of Amalem Abua community sent for me to come and occupy the vacant stool of Uwema Amalem Abua.
3. After consultations I agreed to accept the stool if the community will unite and co-operate with my administration.
4. Consequently I went through all the processes of installation as a paramount ruler and was finally installed as the Uwema Oolah Ema/paramount chief of Amalem Abua on the 27th December 1995.
5. Since my aforesaid’ installation, I have been governing the Amalem Abua Community as its Paramount Chief. I chair all meetings, family functions and gatherings and represent Amalem community as its Chief both within and outside Amalem Abua without hindrance.
6. As the Uwema Amalem Abua I am also appointed a member of the Abua/Odual Council of Traditional Rulers and Chiefs by the Abua/Odual Local Government. The letter of appointment is annexed herein as Exhibit A.
7. Suddenly on the 23/6/2001, I received a letter from the defendant dated 15/5/2001 purporting to de-throne me as the Chief of Amalem or Oolah Ema Amalem. The aforesaid document addressed to the Chairman, Abua/Odual Council of Chiefs is herein annexed and marked as Exhibit 8.
8. The contents of the aforesaid document are false and constitute the subject of suit no AHC/22/2001 – ADOKI Vs OTTOS.
9. The defendant is contemplating replacing me in the Abua/Odual Council of Chiefs and as the Uwema Amalem Abua without undergoing the processes of installation.
10. ….
11. If the defendant is allowed to actualise his intention, he will interfere with my functions as the Paramount Chief/Oolah Ema/Uwema .. Amalem Abua as the next date of the Council of Chiefs meeting is Saturday 30/6/2001.
12. ……
13. ……
14. ……
15. ……
16. Unless restrained the defendant/respondent action (sic) will occasion an irreparable damage to my person and the Amalem community as a whole.
17. I undertake to enter into an undertaking to be ordered by the court as to indemnity.”

In his counter affidavit deposed to on 26/7/01 the respondent challenged the above averments thus:

1. “That I am the defendant on record and as such conversant with the facts of this matter.
2. That the depositions in paragraphs 2 and 3 of the supporting affidavit are patently false.
3. That the Obi Royal Family in 1995 never sent for the plaintiff to come and occupy the vacant stool of Uwema Amalem Abua.
4. That indeed in 1995 my uncle, Chief Amo Omonibo (AGIM the 4th) was the Uwema Amalem but because of village politics and the vaulting ambition of the plaintiff to be the Uwalema Amalem, my said uncle was dethroned to the pleasure of the plaintiff.
5. That at this time I was working with the defunct African Continental Bank Plc in Calabar, Cross River State and my senior brother, Deacon Sunday Rogers Robinson, a descendant of the Agim family and a Pastor in the Deeper Life Christian Church, refused to ascend the throne because of his religious inclination.
6. That owing to this and the fact that there was communication gap between my people at home in Amalem Abua and myself at Calabar, the plaint ff then utilized the opportunity to occupy the stool of Uwema Amalem, which he strenuously lobbied for.
7. That nobody persuaded the plaintiff to accept to ascend he throne, rather when he indicated his interest the Obi Royal Family because of the situation on ground presented him to the community for installation.
8. That as matter of fact the plaintiff was installed with a proviso that he would be on the throne in the interim pending when a rightful person to the throne comes up. This was declared to the plaintiff during his installation by the chief maker/head of Obi family, Chief Joshua Igoh, who as well installed me as the incumbent Uwema Amalem upon the plaintiff’s dethronement.
9. That in response to paragraph 5 of the supporting affidavit, I state that the Plaintiffs reign was characterized with mischief and crises. It was in fact this mischievous and misleading lifestyle that made the Amalem community to dethrone him on 11/2/2001. A copy of the letter showing his dethronement is attached and marked as Exhibit 1.
10. That the recent mayhem that claimer several lives and properties in Abua Central was perpetuated and spearheaded by the plaintiff with few others.
11. That. with respect to paragraph 6 of the affidavit in support, I say that membership of the Abua/Odual Council of Chiefs/Traditional Rulers is not a yardstick for sitting on the stool of Uwema Amalem. It is not the said council of chiefs that installed the plaintiff.
12. That the contents of Exhibit B are correct and it was made by the Amalem Community Council and signed by the respective family Chiefs and Elders.
13. That the depositions in paragraph 9 of the supporting affidavit are not true. I have performed certain installation ceremonies on 4/4/2001 when I was installed. The traditional installation to the throne of Uwema Amalem is not a one day event, it has stages.
14. That since my installation, I have been admitted into and have been attending the Abua/Odual Council of Chiefs meeting without any hindrances to the knowledge of the Plaintiff.
15. That the acts complained of by the plaintiff have long been completed to the knowledge of the Plaintiff since 4/4/2001.
16. ….
17. That having been installed by the Chief Maker/Head of Obi Family as the legitimate and incumbent Uwema Amalem with the blessing and support of the entire Amalem Community since 4/4/2001 awaiting final coronation, nothing else is left.
18. …….
19. That the plaintiff will not suffer anything if this application is refused as I have been reigning and performing the functions of the Uwema Amalem without problems and interference by anybody.”

(Underlining mine)

The appellant’s further affidavit in support in of the motion and the respondent’s further and further further counter affidavits in opposition thereto further buttress their respective positions as reproduced above.

It is evident from the averments of the parties that there is a serious issue to be tried at the hearing of the substantive suit, namely whether the plaintiff (appellant) herein is entitled to a declaration that he is the Uwema Amalem Abua of the Amalem Community of Amalem/Odual Local Government Area of Rivers State, and whether the defendant (respondent) has a right to perform the functions of that office. The legality or otherwise of the alleged dethronement of the appellant is also an issue in contention.

The appellant averred in paragraph 7 of his supporting affidavit that he received the letter intimating him of his purported dethronement on 23/6/01. The writ of summons and the application for interlocutory injunction were filed on 28/6/01. The appellant was therefore not guilty of undue delay. It is also evident from the nature of the claim before the court below that damages would not be adequate compensation for the appellant’s loss or injury in the circumstances of this case.

The main reason relied upon by the learned trial Judge at pages 7 and 8 of the record for refusing the application was that the act complained of had already been completed. The appellant however contends that the act had not been completed because even the respondent admitted that he had only performed some or the installation ceremonies. He has also argued strenuously that the learned trial Judge descended into the arena by making a case for the respondent. I have carefully perused the ruling at pages 4 – 8 of the record. At page 5 paragraphs 2 and 3 the learned trial Judge, in the course: of reviewing the submissions made on behalf of the appellant stated thus:

“On 1 above, counsel submitted that from the affidavits in support of this application and the annexures as well as the counter affidavit filed by the respondent there are substantial issues to be tried in this suit. … He submitted that while the applicant is saying that he is still the paramount ruler of Amalem Community having been installed after the performance of the customary and traditional rites associated with such installation, and has not been removed as sworn in paragraphs 1 2, 3, 4, 5, 6, 9 & 11 of the supporting affidavit, paragraphs 2 (iii), 2 (iv), 2 (vii), 2 (viii), 2 (xi) and 2 (xiii)1of the further affidavit and Exhibit C attached, respondent on the other hand claims in his counter affidavit that the applicant is no longer the paramount ruler of Amalem Community as he (applicant) has been removed and replaced by the respondent.

He referred to paragraphs 8, 9, 13, 14, 15, 16, 17 & 19 of the respondent’s counter affidavit and submitted that from averments as sworn in the aforementioned affidavits there exists substantial issue to be tried …”

At Page 6 paragraph 2 lines 17 – 22 His Lordship continued:

“He submitted that the respondent in his counter affidavit claims to have been installed but not yet coronated as tile Uwema Amalem.

He referred to paragraphs 13 & 17 thereof.

Counsel contended that since the respondent has not completed his installation ceremonies, his deposition in paragraph 15 of his counter affidavit cannot be true, therefore the applicant having been installed enjoys the balance of convenience. ”

At page 7 last paragraph he stated:

“Again is paragraphs 8, 13, 14, 15 & 17 of respondent’s counter affidavit, referred to and relied upon by learned counsel for the applicant in cause (sic) of his argument, the fact therein deposed to show that the respondent was installed Uwema Amalem on 4/4/2001. ”

An allegation that a Judge descended into the arena of conflict and made out a case for one of the parties to the detriment of another is very grave and must never be made lightly. This is because such conduct amounts to a breach of the sacred oath sworn by a judicial officer to dispense justice without fear or favour, affection or ill will. It also inevitably compromises the constitutional rights of the parties to fair hearing. I have quoted the learned trial Judge extensively to show that all the material he relied upon in reaching his decision was material properly before the court and extensively relied upon by learned counsel for the appellant in the course of his submissions. The respondent, although absent had filed counter affidavits challenging the appellant’s assertions.

Apart from the fact that learned counsel for the appellant himself made copious references thereto, the law is trite that a court can suo motu make reference to the case file before it and make use of any document it finds necessary. See: Fumudoh Vs Abora (1991) 9 NWLR (214) 210 at 229 E. The contention that the learned trial Judge suo motu offered arguments in support of the respondent’s case is unfounded and unwarranted.

On the issue as to whether or not the act complained of had been completed, the appellant contended that the status quo to be maintained was the status quo ante bellum, that is, the position of the parties before the institution of the suit. In the case of Akapo Vs Hakeem-Habeeb (1992) 6 NWLR (247) 266 at 303 F – G. it was held per Nnaemeka-Agu, JSC that:

” … The literal meaning of status quo ante bellum) is the state of affairs before the beginning of hostilities.”

In the same case, Ogundare, JSC at page 311 C opined thus:

“It [staius quo ante bellum} can only mean the situation prevailing before the defendants’ conduct complained of by the plaintiff.”

The status quo to be maintained is the state of affairs at the time of filing the action as at is, at a stage when no further activity can be restrained. See: Ayorinde Vs A.G. Oyo State (1996) 3 NWLR (434) 20; Okafor Vs A.G. (1992) 2 SCNJ 219; Adewale Vs Gov. Ekiti State (2007) 2 NWLR (10119) 634 at 658 F – G.

Now what was the prevailing situation in this case before the beginning of hostilities? From the averments in paragraphs 4, 5 and 6 of the supporting affidavit, the appellant, having duly completed all the installation processes was installed as the Uwema Oolah Ema/Paramount Chief of Amalem Abua on 27th December 1995. He had since that date been fulfilling all the functions of that office without hindrance. By virtue of his position as the Uwema Amalem Abua he was a member of the Abua/Odua Local Government Council of Chiefs as evidenced by EXh. A dated 7/5/01 attached to the supporting affidavit.

Suddenly on 23/6/01 he received a letter, Exh. B dated 15/6/01 endorsed by the Chiefs and elders of the family to the effect that he had been dethroned since 11th February 2001 and that the respondent had been installed as Uwema Amalem since 4th April 2001.

The respondent in his counter affidavit, particularly paragraphs 6.7 and 8 thereof admitted that the appellant was duly installed as the Uwema Amalem, although he averred that the installation as with a proviso that he was to occupy the throne for an interim period pending the availability of a rightful contender. The appellant averred in paragraph 9 of his supporting affidavit that the respondent sought to replace him in the Abua/Odual Council of Chiefs without undergoing the process of installation. He averred that the next meeting of the council was fixed for 30/6/2001.

In reaction to these averments the respondent I averred in paragraph 13 of his counter affidavit that he had performed “certain” installation ceremonies on 4/4/01 and that the installation process has stages. In paragraph 17 he averred that he is “awaiting final coronation.”

It is evident from the affidavit evidence before the court that the situation prevailing before the respondent’s conduct complained of by the appellant was that he was the incumbent Uwema Amalem and a member of the Abua/Odual Local Government Council of Chiefs. The conduct complained of is his purported dethronement and the purported installation of the respondent.

Having regard to the averments of the respondent that he had performed only some of the installation ceremonies and that the final coronation had not taken place, it would not be correct to state, as the learned trial Judge did, that the act sought to be restrained had been completed.

There was sufficient material before the learned trial Judge for the exercise of discretion in favour of the appellant by maintaining the status quo pending the determination of the substantive suit.

The sole issue for determination in this appeal must therefore be answered in the negative. The appeal succeeds and is hereby allowed.

The ruling of the High Court of Rivers State, Ahoada Judicial Division in Suit No. AHC/45/2001 delivered on 31/10/05 is hereby set aside. The appellant’s motion on notice dated and filed on 28/6/2001 for interlocutory injunction is granted as prayed.

The parties shall bear their respective costs in this appeal.

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Other Citations: (2009)LCN/3377(CA)