Iheanacho Ekpahuru Ideozu & Ors V. Chief Frank Okpo Ochoma & Ors (2006)

LAWGLOBAL HUB Lead Judgment Report

OGUNTADE, J.S.C.

This is an appeal from the judgment of the court below in which it allowed an appeal from the ruling of the High Court in suit No. AHC/22/91 which is still pending before the said High Court of Ahoada Judicial Division of Rivers State. The appellants were the plaintiffs. By their amended writ of summons issued on 3rd June, 1997 against the respondents (as defendants), they claimed the following reliefs:

“1. A declaration that by Ekpeye native law and custom the Umudele Family of Ahoada is the head/founding family of Nye-Nwe-Ele (landlord) of Ahoada.

2. A declaration that the Umudele family by virtue of its status as the Nye-Nwe-Ele family of Ahoada has the exclusive and sacred custody of the main Owor-Ele-Ehuda.
3. A declaration that under Ekpeye native law and custom of inheritance, it is only members of the Umudele family being the head/founding family of Ahoada that can bear the title of Nye-Nwe-Ele or landlord/traditional ruler of Ahoada and who can possess the main Owor-Ele Ehuda and conduct all communal sacrifices for Ahoada.
4. A declaration that by virtue of the Ekpeye customary law of inheritance, the following members of Umudele Family, namely Eyele Ele, Madu Ele, Ozogbe, Nwogwo, Usuma, Imo Ideozu, Elder Michael Aliegbe, were recognized, lived, and died as the Nye-Nwe-Eles/ landlord/traditional rulers of Ahoada.
5. A declaration the defendants not being the members of the Umudele family cannot bear the title of Nye-Nwe-Ele or hold the main Owor-Ele Ehuda or conduct communal sacrifices for Ahoada.
6. A declaration that the purported certificate of conferment of the title of Nyemoji-Owhor-Ehuda dated 28/12/81 purportedly as a conferment of the title of Nye-Nwe-Ele of Ahoada on the 1st defendant by HRH R. O. Robinson Eze Ekpeye Logbo is null and void.
7. A declaration that the purported judgment or verdict of the Eze Ekpeye Logbo in Council dated 8/ 3/90 adjudging the 1st and 2nd defendants family of Abubogle as the Nye-Nwe-Ele of Ahoada and therefore entitled to hold the main Owor-Ele Ehuda is null and void.
8. An order of permanent injunction restraining the 1st defendant from holding himself out or howsoever parading himself as the Nye-Nwe-Ele of Ahoada Community.
9. An order of permanent injunction restraining all the defendants, by themselves, their servants, agents, privies or howsoever from interfering with the plaintiffs’ Umudele family rights as the Nye-Nwe-Ele family of Ahoada, as the exclusive possessor of the main Owor-Ele-Ehuda and in its conduct of communal sacrifices for Ahoada Community.”

The parties filed and exchanged pleadings and ordinarily the suit should have proceeded to a hearing but on 10/1/98, the plaintiffs applicants filed an application praying for the following:

1. An order of interlocutory injunction restraining the 1st defendant by his agents, servants, privies or howsoever from acting, holding himself out or howsoever parading himself as the Nye-Nwe-Ele of Ahoada community until the determination of this suit.
2. An order of interlocutory injunction restraining the defendants by themselves, their agents, servants privies or howsoever from entering into the premises where the Ele-Ehuda shrine is situated in Odiemelu Quarters of Ahoada for whatsoever purposes until the determination of this suit.
3. An for such further orders as this Honourable Court may deem fit to make in the circumstance.

The plaintiffs as applicants filed an affidavit in support of the application. The defendants filed a counter-affidavit to which was annexed a certificate of conferment. This elicited from the plaintiffs a further affidavit. In reaction, the defendants filed a further counter- affidavit. The application was before Charles-Granville J. Parties having extensively argued the application, ruling was on 13/3/2000 delivered thereon. In the ruling, the trial Judge concluded as follows at page 90 of the record: “I shall therefore exercise my discretion in favour of the plaintiff/applicants by granting the orders sought. Accordingly, I hereby make:

1. An order of interlocutory injunction restraining the defendant by himself, his servants, agents, privies or howsoever from acting, holding himself out or howsoever parading himself as the Nye-Nwe-Ele of Ahoada Community until the determination of this suit.
2. An interlocutory injunction restraining the defendants by themselves, their agents, servants, privies or howsoever from entering into the premises where the Ele-Ehuda shrine is situate for whatever purposes until the determination of this suit.
3. Plaintiffs/applicants are hereby ordered to enter into an undertaking before the Assistant Chief Registrar II of this court, to pay to the defendant/respondents, whatever damages the court may deem fit to make, if at the end, it is found that the order of interlocutory injunction was obtained frivolously, and ought not to have made.”

The defendents/respondent who were restrained by the trial court Judge brought an appeal against the ruling. The appeal was heard at the Court of Appeal, Port-Harcourt Division (hereinafter referred to as the ‘court below’). On 22/02/01 the court below in its judgment allowed the appeal and set aside the ruling of the trial court. The plaintiffs were dissatisfied with the judgment of the court below and have come on a final appeal before this court. In their appellants’ brief filed, the issues for determination in the appeal were stated to be these:

“1. Whether the lower court was justified in law to have interfered with the discretion of the trial court by determining in favour of the respondents at the interlocutory stage the substantive issue as to which of the parties to the suit produces the Nye-Nwe-Ele of Ahoada when the issue is still pending before the trial court for determination.

2. Whether the lower court misconceived the basis of the appellants application before the lower court and also the order made by the trial Judge and came to a wrong conclusion that the order has affected third parties and disrupted the traditional business of Ahoada community.”

The respondents’ counsel in his brief elected to adopt the issues for determination as formulated by the appellants.

The basis upon which the court below reversed the ruling of the trial court was that a court of law could not restrain a party from doing an act which has been done or completed. At pages 178-179 of the record of proceedings, the court below in its judgment said: “At this stage, I would like to reproduce paragraphs 6 and 7 of the amended writ of summons of the respondents filed on 3/6/97. They read as follows:

“6. A declaration that the purported certificate of conferment of the title of Nyemoji-Owhor-Ehuda dated 18/12/81 purported as a conferment of the title of the Nye-Nwe-Ele of Ahoada on the 1st defendant by HRH R. O. Robinson, Eze Ekpeye Logbo is null and void.

7. A declaration that the purported judgment or verdict of the Eze Ekpeye Logbo in council dated 8/3/90 adjudging the 1st and 2nd defendant’s family of Abubaogele as the Nye-Nwe-Ele of Ahoada and therefore entitled to hold the Owhor-Ele-Ehuda null and void.”

The action was filed on 7/11/91. It is therefore clear from the above paragraphs of the respondents’ amended writ of summons that ten years prior to the filing of this suit in 1991 and specifically since 1981, the 1st defendant had continued to act pursuant to Ekpeye native law and custom as the Nye-Nwe-Ele of Ahoada.

It is also disclosed in the writ of summons and repeated in the statement of claim that there had been a native arbitration by the panel headed by the Supreme Head of Ekpeye Kingdom where it was adjudged that the 1st and 2nd defendants’ family of Abubogele was the Nye-Nwe-Ele of Ahoada and therefore entitled to hold the main Owhor-Ele-Ehuda as against the plaintiffs’ family. It follows therefore restraining the 1st defendant from parading Nye-Nwe-Ele which he had so held out and so paraded himself for upwards of twenty years will not only be unjust but amounts to entering judgment for the respondents before leading evidence in the case, because the issue to be decided by the court is whether the recognition given to the 1st defendant as the Nye-Nwe-Ele of Ahoada was null and void. I think the better approach should have been to maintain status quo and hold the recognition valid until it is set aside or nullified after hearing evidence from the parties.

And finally on the point the court below said in the same vein at page 181:

“This submission is misplaced because the 1st defendant having been duly recognized as Nye-Nwe-Ele had been acting such since 1981 what the learned trial Judge restrained was clearly a completed act. In Ajewole v.Adetimo (1996) 2 NWLR (Pt.431) 391 the Supreme Court held that when a court is asked to restrain a party from doing an act pending a decision in a matter before it, but the act has been done, no order to restrain will be made because what is sought to be restrained had been completed. See also the case of John Holt (Nig.) Ltd. v. Holts African Workers Union (1963) 1 All NLR 279, (1963) 2 SCNLR 383 and Ayorinde v. Attorney- General of Oyo State (supra)”.

The appellant in his written brief before this court has argued that it was wrong for the court below to have interfered with the exercise of discretion by the trial court. Counsel relied on Ngwu v. Onuigbo (1999) 13 NWLR (Pt.636) 512, 523-524. It was further submitted that the court below erred by making in its judgment certain pronouncements, which affected the issues to be decided in the substantive matter. Counsel relied on Biocon Agrochemicals (Nig.) Ltd. & Ors. v. Kudu Holdings (Pty) Ltd. (2000) 15 NWLR (Pt. 691) 493 at 505 and 509; Olunloyo v. Adeniran (2001) 14 NWLR (Pt.734) 699 at 708.

In granting the application, the trial court in its ruling at pp. 88-89 of the record had reasoned thus:

“The applicants in this case have shown that there is a serious issue for trial to which learned counsel for the respondents conceded. That issue which is the res, is the claim of both parties to be entitled to bear the title of Nye-Nwe-Ele, and to posses the main Owhor and to sacrifice to Ele-Ehuda shrine. It is my view that this state of affairs calls for the courts intervention at this stage to prevent the doing of anything that will affect the smooth trial of the substantive suit.

One of the primary functions of the court is to see that law and order reigns supreme in the society and every decision of any court must be geared towards the maintenance of law and order, and not to cause blood shed or a state of anarchy in the society. In this case, the refusal to grant an order of interlocutory injunction and allowing the respondents to continue parading the 1st defendant as the Nye-Nwe-Ele and to perform sacrifices at the Ele-Ehuda shrine which is the issue for determination by this court during the pendency of the suit will create a situation where there might be disturbances, as deposed to in paragraph 20 of the supporting affidavit that such acts would inevitably lead to the breakdown of law and order in Ahoada, since the patience of members of the applicant’s family are gradually wearing off.”

Was the trial court right And was the court below in error to have reasoned that an act, which had been completed, ought not be restrained Before I answer these questions, I must express that the submission of appellants’ counsel that an appellate court does not make a practice of reversing the exercise of discretion by a court of trial is only partially true. It does not represent an absolute principle of law. In Enekebe v. Enekebe (1964) 1 All NLR 102, this court per Bairamian, J.S.C. quoted approval a portion of the statement of Lord Simon in Blunt v. Blunt (1943) AC 517 at 526 where he said:

“If it can be shown that the court acted under a misapprehension of fact in that it either gave weight to irrelevant or unproved matters or omitted to take into account matters that are relevant, there would, in my opinion, be ground for an appeal. In such a case the exercise of discretion might be impeached, because the court’s discretion will have been exercised on wrong or inadequate materials but, as was recently pointed out in this House in another connexion in Charles Osenton v. Johnson (1942) AC 130, 138.

‘The appellate tribunal is not at liberty merely to substitute its own exercise of discretion for the discretion already exercised by the Judge. In other words, appellate authorities ought not to reverse the order merely because they would themselves have exercised the original discretion, had it attached to them, in a different way. But if the appellate tribunal reaches the clear conclusion that there has been a wrongful exercise of discretion in that no weight, or no sufficient weight, has been given to relevant considerations then the reversal of the order on appeal may be justified.”

See also Solanke v. Ajibola (1968) 1 All NLR 46 at 51 and Saffieddine v. C.O.P. (1965) 1 All NLR 54.

Earlier in this judgment, I set out the reliefs, which the plaintiffs/appellants sought by their claims against the defendants/respondents. The 6th and 7th claims made by the plaintiffs/appellants postulated that His Royal Highness R. O. Robinson Eze Ekpeye Logbo had conferred the title Nyemoji-Owhor-Ehuda on the 1st defendant and that a certificate of such conferment dated 8/12/81 was issued to the 1st defendant. It was also made manifest that a judgment or verdict of Eze Ekpeye Logbo in Council had been given in favour of 1st and 2nd defendant’s family on 8/3/90. The plaintiffs/appellants wished by their suit to set aside these acts. The plaintiffs/appellants’ original writ of summons as distinguished from the amended writ of summons was issued on 7/11/91. The undisputed factual situation as at 7/11/91 when the plaintiffs/appellants commenced their suit was that a conferment rightly or wrongfully done had been made on the 1st defendant about 10 years before the plaintiffs/appellants commenced their suit. A customary body, Eze Ekpeye Logbo in council has also as at 8/3/90 decided the dispute in favour of the 1st and 2nd defendants. The plaintiffs/appellants had been aware of these occurrences and it was apparent that because they felt that these acts were improperly done that the plaintiffs by their suit asked that these acts be set aside as null and void. Strangely however, after pleadings had been fully filed, the plaintiffs/appellants brought their application on 10/1/98, some seven years after they filed their suit. They asked that the 1st defendant be restrained from holding himself out as the Nye-Nwe-Ele of Ahoada community, a privilege which the 1st defendant had enjoyed since 8/12/81 and before the commencement of the plaintiffs’ suit. In other words, the plaintiffs were asking by their application that the situation as it stood before the commencement of the suit be reversed even before the case was heard. In John Holt (Nig.) Ltd v. Holts African Workers in Nigeria and Cameroons (1963) 1 All NLR 385 at 389-390, Ademola, C.J. C said:

“The second aspect is the insistence of the learned trial Judge to continue the hearing of the application for interlocutory injunction when it was so obvious from the facts before him that the object for which the injunction was asked for, namely, the introduction of a reconstruction plan to the defendants’ Company, had already been effected, and the plan had been introduced before the application for interim injunction was filed. In other words, an interlocutory injunction was no more a remedy for an act which had already been carried out.”

See also U.B.N. Plc. v. Adjarho (1997) 6 NWLR (Pt.507) 112 at 124 and Ochudo v. Oseni I (1998) 13 NWLR (Pt.580) 103.

On the facts available it seems to me that the court below was right to have allowed the appeal by setting aside the order of interlocutory injunction granted by the trial court; it being clear that the acts in respect of which the plaintiffs/appellants sought an interlocutory injunction had in fact been completed. It only remained for the trial court to declare the concluded acts null and void if the plaintiffs/appellants succeeded in their claims. The trial court was wrong to have granted an interlocutory injunction in the circumstances of this case. Under their second issue, the appellants have contended that the court below misconceived the basis of their application. It was argued that the court below erroneously formed the impression that the order made by the trial court would affect third parties. Counsel relied on Akapo v.Hakeem-Habeeb & Ors. (1992) 6 NWLR (Pt.247) 266 at 287 and Onyesoh v. Nnebedum (1992) 3 NWLR (Pt.229) 315. I have read the judgment of the court below wholly and the impression I have is that the major point made therein was that the acts which the trial court purported to restrain had in fact been concluded. It is therefore of no consequence if the court below in addition to the point majorly made thought that the order of the trial court might affect third parties.

In the final conclusion, I do not see any merit in this appeal. It is accordingly dismissed with N10,000.00 costs in favour of the respondents.

SC.218/2001