Jerry Henry Ubani V. Chief Joseph T.I. Ogolo (1997)
LawGlobal-Hub Lead Judgment Report
MUHAMMAD, J.C.A.
The parties to this appeal are or claim to be members of the Diepiri Section of Opobo Town. The cause of their dispute arose as to the succession to the traditional rulership of Chief of Main Ogolo House and Head of Diepiri Section. The Chieftaincy title became vacant as a result of the death of Raymond D, Ogolo in 1981 who was the Chief of Main Ogolo house and Head of Diepiri Section. The family was divided over succession to the title. This led to many Court actions. The appellants herein as plaintiffs in the lower court sued the respondents in a representative capacity in suit No. BHC/66/85. While this suit was still pending, the respondents, as plaintiffs, sued the appellants, in Suit No, BHC/16/86. The appellants’ claim in Suit No. BHC/66/85, the subject matter of this appeal, as set out in paragraph 38 of their amended statement of claim is as follows:-
“(a) A declaration that the purported installation of Joseph T. Ogolo as the Head of Diepiri Section of Opoba on the 29th November, 1985 is null and void and of no effect.
(b) A declaration that under Opobo Customary Law the right to install a Head for Diepiri Section of Opobo lies with the 6 war canoe Houses.
(c) N50,000.00 damages for the desecration of the Diepiri Shrine known as and called Kala Igoni on the 29th November, 1995,
(d) A perpetual injunction restraining the 2nd – 22nd defendants whether by themselves, servants, or otherwise whatsoever from holding out the 1st defendant as the Head of the Diepiri Section of Opobo Town.
(e) A perpetual injunction restraining the 1st defendant whether by himself, servant, agents or otherwise however from holding himself out as or acting, as the Head of Diepiri Section of Opobo Town.”
Pleadings were ordered, filed and exchanged with numerous subsequent amendments and the case went for trial before Ichoku J. The Defendants, hereinafter referred to as the respondents, then applied for an order of interim injunction to restrain the appellants from installing Chief L.L.B. Ogolo as Chief of the Main Ogolo House during the pendaney of the said Suit. This application was refused by the learned Judge on 24/6/86. Then in November 1993 the respondents again brought another application praying for the following orders:-
“1. An order of interlocutory injunction restraining the plaintiffs respondents, their servants, agents etc. from presenting anybody whomsoever to Opobo Council of Chiefs for recognition and confirmation as the Chief of Ogolo Main House of Opobo Town pending the final determination of the substantive Suit.
- An order by this Honourable Court directed against the plaintiffs/respondents or any person in their group from presenting himself to the Opobo Council of Chiefs for confirmation and ratification as the Chief of Ogolo Main House of Opobo Town.”
This application was duly granted by the trial Judge. Dissatisfied with the order the appellants appealed to this Court upon seven grounds of appeal. Pursuant to the Rules of this Court, the parties filed and exchanged their respective briefs.
In the appellants’ brief three issues were formulated for the determination of the appeal. These are:-
“(a) Whether in view of the cause of action, the subject matter in dispute and the real issues in controversy as manifest in the pleadings and the surrounding circumstances prevailing on the date of the application for interlocutory injunction in question, the trial court acted judicially and judiciously in entertaining the said application.
(b) If so, whether the trial court exercised its judicial discretion in the circumstances correctly having regard to the materials properly placed before it and the pertinent considerations governing such exercise?
(c) Whether the trial court acted or could reasonably appear to have acted with bias or predisposition towards one of the parties to the suit?”
The respondents on the other hand formulated two issues for determination:–
“1. Whether the defendants/respondent not having counterclaimed in suit No. BHC/66/85 can apply for an order of interlocutory injunction against the appellants.
- Whether the grant of the interlocutory injunction subject matter of this appeal was a proper exercise of judicial discretion by Ichoku J.”
Taking into consideration the grounds of appeal, I find the issues formulated by the respondents more precise and apposite to the grounds of appeal and as such I will adopt them for the consideration of this appeal.
On the first issue, it was submitted on behalf of the appellants that the trial Judge did not exercise his discretion correctly, in entertaining the respondents’ motion. It was submitted that even though Order 33 rules 1 & 2 of the High Court (Civil Procedure) Rules, 1987 of Rivers State is wide to enable a defendant seek interlocutory preservation and/or restraining Orders, however the competency vel non of an application by a defendant seeking an interlocutory injunction in a Suit is determined by reference to the subject matter in dispute and the cause of action. Such an application is only competent if it aims at preservation of the subject matter in dispute and the cause of action. The cases of Perepimode v. Miekoro & Ors (1992) 2 NWLR (Pt. 224) 483; Okechukwu v. Okechukwu (1989) 3 NWLR (Pt. 108) 234 and Igbinigie v. Yusuf & Ors (1993) 2 NWLR (Pt. 274) 206 were referred to in respect of a defendant asking for an injunction without counterclaiming. The case of Egbe v. Omogun (1972) 1 All NLR 99 was referred to with regards to the principles governing the grant of injunctions.
It was also submitted that in view of the subsisting judgment in Suit No. BHC/16/86 which is valid and binding on the parties and the parties being the same as in the instant proceedings, it was incompetent for the respondents to have brought the application in question in the circumstances. It was contended that there was no basis on which any alleged right of the respondents could be founded. Their claim to right of installation having been tried on the merits, and dismissed in the said judgment. It was further contended that there was absolutely no material placed before the court by the respondents remotely showing that the respondents’ candidate had exclusive right of confirmation and/or recognition by tile Opobo Council of Chiefs and that nowhere was there any assertion of any right in the respondents whose violation was being threatened. It was then submitted that the trial Judge acted arbitrarily in entertaining the respondents’ application in the circumstances and that the ratio in Ladunni v. Kukoyi (1972) All NLR (Pt.1) 133 and Ifekwu v. Chuba Mgbako & Ors (1990) 3 NWLR (Pt. 140) 588 should be applied to the instant proceedings.
In reply the respondents submitted that interlocutory injunctions and interim preservation of properties are governed by the Rivers State of Nigeria High Court (Civil Procedure) Rules, 1987. It was submitted that the phrase “by any party to an action” as contained in Rule 1 shows that the only qualification for an applicant for an order of interlocutory injunction is that one needs to be a party to the action.
It was contended that it was irrelevant if such an applicant was a plaintiff or a defendant in the suit. It was submitted that the appellants have admitted that much in paragraph 4.2 of their brief. It was submitted that the distinction drawn by the appellants in Perepimode’s Case (supra) was one without difference. It was also submitted that the reference to the case of Okechukwu (supra) was a very serious misconception. That decision it was contended, was factually distinguishable from the present appeal, it was submitted that this issue should be resolved in favour of the respondents.
Order 33 of Rivers State High Court (Civil Procedure) Rules, 1987 provides:-
33.(1) An application for the grant of an injunction may be made by any party to an action before or after the trial of the action, whether or not a claim for injunction was included in that party’s action.
(2) Where the applicant is the plaintiff and the case is one of urgency, the application for the grant of an injunction may be made ex-parte on affidavit but except as aforesaid, the application shall be made by motion on notice or summons”.
The import of Order 33 rule 1 is that any party to an action, whether he is the defendant or the plaintiff, may apply for the grant of an injunction. In granting an interlocutory injunction the principles governing such grant must be followed. The object of an interlocutory injunction is to preserve matters in status quo until the case can be tried. Its aim is to protect a right claimed by the applicant See Ladunni v. Kukoyi (supra) where it was stated by the Supreme Court at page 136 as follows;-
“Evidently an application for an interim injunction postulates that the applicant has a right, the violation of which he seeks to prevent and in order to do so effectively to ensure at that stage of the proceedings that the subject matter of the right be maintained in status quo. A person resisting the application for an interim injunction could either deny the right itself for only deny the breach of it or indeed both the right and the breach of it”.
It could be seen that the basis for any application for an interlocutory injunction is the protection of a right. It therefore follows for a party to succeed he must show that he has a right to protect. In view of this can a defendant who has not counterclaimed apply for an interlocutory injunction? The answer, in my opinion, depends on the circumstances of each case. The overriding principle is that he must show that he has a right to protect. In Okechukwu v. Okechukwu (supra) it was held that a defendant who did not counterclaim was not entitled to apply for an injunction.
It was stated at page 243 that-
“A defendant who has no counter-claim and has given no notice of one can hardly be said to have a right asserted before the court, the violation of which he seeks to prevent”.
See also Ifekwu v. Mgbako (supra) where it was stated at page 592 that:-
“…It was quite irregular and wrong as the injunction was not based on any interest or right claimed by the defendants. In other words, they had no right to an interim injunction in the first place”.
The two cases cited above were considered by Akpabio J.C.A. in Igbinigie v. Yusuf (1993) 2 NWLR (Pt. 274) 206 and came to conclusion at page 217 that:-
“…the real ratio for the two cases was not because the defendant did not file a counter-claim, but rather because he failed to show that he had a right to protect. Injunctions whether interim, interlocutory or perpetual are not granted in vacuo, but only to protect a right which is being threatened. Once the applicant can show that he has a right which was being threatened he will be granted an interlocutory injunction irrespective of whether he filed a counter-claim or not”.
He concluded at page 218 by stating;-
“So, on the totality of the foregoing one must say that the existence of a counter-claim by a defendant is not a sine quo non for the granting of an interlocutory injunction in favour of a defendant against a plaintiff as long as he shows that he has a real right to protect. In this connection, appellant himself conceded that 4th respondent had already sued them in Suit No. B/146/87 which was then still pending, concerning the recovery of the same car or its value. This, to my mind was as good as a counter-claim, if not better.
The important thing is that respondent had shown both in his affidavit and otherwise, that he had a real interest in the case to protect, and this was not controverted in any counter-affidavit”.
I have very carefully considered the reasonings in the above cases and as I have earlier stated the basis for any application for interlocutory injunction is the protection of a right. For a party to succeed he must show that he has a right to protect. I am therefore of the opinion that if at all a defendant can show that he has a right to protect, without filing a counter-claim, an interlocutory injunction may be granted in his favour.
I will now consider the circumstances of the present appeal to determine whether or not the trial Judge was right in granting the interlocutory injunction. At the beginning of this judgment I have set out in full, the appellants’ claim against the respondents. The claim is for a declaration that the installation of the 1st respondent as the head of Diepiri Section of Opobo is null and void, a declaration that the right to install a Head for Diepiri Section lies with the six war canoe houses, damages for desecrating the Diepiri Shrine and perpetual injunction restraining the 1st respondent from holding himself out as or acting as the head of Diepiri Section of Opobo Town. During the pendancy of this suit, the respondents as plaintiffs sued the appellant’s in suit No. BHC/16/86 claiming the following reliefs:-
“(1) A declaration that the purported and mock installation of the 10th defendant (Levi Brown Ogolo) as the Chief of Ogolo Main House on the 10th day of April 1986, during the pendency of Suit No. BHC/66/85 is unlawful, null, void and of no legal effect whatsoever.
(2) A declaration that the installation of the 1st plaintiff (Chief Joseph T. Ogolo) as the Chief of Ogolo Main House on the 29th November, 1985 is lawful and valid in accordance with the custom of Ogolo Main House of Opobo Town and that the Palace of Chief Ogolo Diepiri in Ogolo Main House Compound is customarily under the custody and control of the installed Chief of Ogolo Main House.
(3) N60, 000.00 (Sixty thousand Naira) being damages for trespass committed by the 11th – 16th defendants in that on or about the 10th day of April, 1986 and on diverse days before and thereafter the aforesaid defendants by themselves, their agents and servants without the consent of the plaintiffs broke and entered into Ogolo Main House Palace desecrated same as well as the Shrine in Opunogu “Ihu Ezi” of Chief Ogolo’s compound which are in peaceful possession of the plaintiffs.
(4) Perpetual Injunction restraining the defendants, their agents and servants from holding out the 10th defendant as Chief of Ogolo Main House in Opobo Town.
(5) A perpetual Injunction restraining the 10th defendant, by himself, servants, agents, from holding himself out as or acting as the Chief of Ogolo Main House in Opobo Town”.
Looking at the claims in the two Suits i.e. Suit No. BHC/66/85 and Suit No. BHC/16/86 one could see that they are similar. Each is claiming that the purported installation of the other as the Chief of Ogolo Main House is null and void and of no effect. They are claiming damages from each other while each wants the other to be restrained from holding himself out as the Chief of Ogolo Main House in Opobo Town. By Suit No. BHC/16/86 the respondents were laying claim to the stool of Chief of Ogolo Main House. This means that they have a right which they can protect. However, this is only during the pendancy of the said Suit or where the Suit was determined in their favour.
In our present case, the respondents did not bring the application during the pendancy of the Suit. They brought the application after their claim was dismissed. Without suit No. BHC/16/86, the respondents could not be said to have any right which they wanted to protect. The affidavit in support of the motion also did not show that the respondents are claiming any right. Therefore hold that the respondents have failed to show that they have a right which is being threatened which they sought to protect.
In the circumstances I hold that the trial Judge was wrong in granting the interlocutory injunction. The appeal has merit and it is hereby allowed. The orders of Ichoku J are hereby set aside and the respondents’ application for interlocutory injunction is dismissed. The appellants are entitled to the cost of these proceedings which I assess at N1000 at the court below and N2000 in this court.
Other Citations: (1997)LCN/0283(CA)
