IGWE N.A.U. ACHEBE v. CHIEF A.C.I. MBANEFO & ANOR (2017)

IGWE N.A.U. ACHEBE v. CHIEF A.C.I. MBANEFO & ANOR

(2017)LCN/9449(CA)

In The Court docket of Enchantment of Nigeria

On Friday, the third day of February, 2017

CA/E/175/2006

RATIO

AMOUNT TO EVIDENCE
The submissions of discovered Counsel within the briefs of argument won’t ever take the place of authorized proof. SeeYoye vs. Olubode (1974) 1 All NLR (Pt. 2) 118; Zein vs. Geidam (2004) All FWLR (Pt. 237) 457 at 480 Paragraph B and Obuoliu vs. Coker (1981) 5 SC 197. PER JOSEPH TINE TUR, J.C.A.
CITATION: WHAT SHOULD DETERMINE THE AUTHORITIES A COUNSEL WOULD CITE
The info and circumstances of a case ought to find out the authorities a discovered Counsel ought to cite to assist his argument in Court docket. SeeAdegoke Motors Nig. Ltd. vs. Adesanya (1989) Three NWLR (Pt.109) 250 at 265. PER JOSEPH TINE TUR, J.C.A.

INJUNCTION: NATURE OF INTERLOCUTORY INJUNCTION
In Hanbury and Maudsley Trendy Fairness, 1976 Version by Harold Greville Hanbury seems the next assertion on the character of an interlocutory injunction pending the willpower of the substantive swimsuit at pages 78 to 79 to wit:
The jurisdiction is said to not probably the most simply technique of defending established rights, however to probably the most handy technique of preserving the established order whereas rights are established. Interlocutory injunctions could also be prohibitory, necessary, or quia timet. Usually such an injunction stays in drive till the trial of the motion, however an interim injunction could also be granted, which endures for some shorter specified interval. If the events consent, the interlocutory listening to could also be handled as a ultimate trial if the dispute is of regulation. However this won’t be doable if the dispute is of truth, as affidavit proof is unsuitable for such points.
The principal and elementary objective of an interlocutory injunction is to protect the established order whereas the rights of the events contesting the subject-matter are to be established after the info have been gone into in a full-blown trial. That’s when the discovered trial Decide may need rendered a call in favour or towards any of the disputing events. In Snells Ideas of Fairness, 27th Version by The Hon. Sir. Robert Megarry, pages 636 to 637 additionally seems the next assertion on interlocutory injunctions pending the willpower of the substantive swimsuit to wit:
Interlocutory Injunctions:
1. Basic rules:- Although the proverbial delays of Lord Eldons chancellorship not exist, there may be nonetheless an inevitable lapse of time between the graduation of an motion and the trial. The damage being suffered by the plaintiff could be such that it might be unjust to make him wait till the trial for aid, and so in sure circumstances the Court docket will grant an injunction earlier than trial with the item of preserving issues in established order, or of facilitating the administration of justice on the trial; and in a correct case the plaintiff could even be given the entire of the aid which he would search on the trial. Equally, an injunction could also be granted pending an enchantment. The grant of interlocutory aid is at all times discretionary, and relies on the circumstances of every case. The next, nevertheless, are the extra essential issues. The established order to be saved or maintained pending trial could be depending on the character of the subject material in dispute coupled with the type of damage that if an interlocutory injunction shouldn’t be granted could outcome to the detriment of the get together that utilized for the treatment by the point the rights of the events had been decided on the finish of the trial. In Akapo vs. Hakeem-Habeeb (1992) NWLR (Pt. 247) 266, Karibi-Whyte, JSC held the place the dispute concerned the rights of a household head within the administration of household property at pages 291 to 292 as follows:
The established order which the Court docket can by the granting of injunction preserve, is the restoration of the events to the place they had been earlier than April, 1985, when respondents with drive took over the administration and management of the places of work and property of the Ojora Chieftaincy household, hitherto below the management and administration of appellants and the Household Council. PER JOSEPH TINE TUR, J.C.A.

INJUNCTION: MEANING AND NATURE OF PERPETUAL INJUNCTION
In Hanbury and Maudsley Trendy Fairness (ante), web page 69 the discovered creator defined the which means of perpetual injunction as follows:
Perpetual and Interlocutory Injunctions:
Prohibitory or necessary injunctions could also be perpetual or interlocutory. Perpetual doesn’t imply essentially that the impact of the order should endure without end; it implies that the order will lastly settle the current dispute between the events, being made as the results of an abnormal motion, the Court docket having heard within the abnormal approach the arguments on each side. However a plaintiff could not at all times have the ability to await the motion to come back on within the regular course; it could be that irreparable harm will probably be performed to him if the defendant shouldn’t be instantly restrained. If such is the case, the plaintiff will serve on him a discover that on the subsequent movement day his Counsel will apply to the Court docket for an injunction. The service of this discover will allow the defendants Counsel additionally to be heard, if he needs, however the listening to won’t be a ultimate choice on the deserves of the case. If the plaintiffs affidavit has made out a ample case, the Decide will grant an interlocutory injunction, which is efficient solely till the trial of the motion.
Once more in Snells Ideas of Fairness (supra) web page 626 seems the next write up on perpetual injunction:
Perpetual Injunctions:
1. Damages an inadequate treatment: The very first precept of injunction regulation is that prima facie you don’t get hold of injunctions to restrain actionable wrongs for which damages are the right treatment. Thus no injunction will probably be granted the place an unlawful act has been performed prior to now however there isn’t a intention of repeating it, or the place the damage might be adequately compensated by cash. However an injunction could also be granted if an award of damages could be ineffective, e.g. as a result of the defendant is a pauper; and plenty of wrongs, akin to persevering with nuisance or infringements of commerce marks, demand extra enough aid than cash. Furthermore, a celebration to a contract has a proper to its efficiency and never merely to compensation for breach, and therefore an injunction will probably be granted to restrain breaches of detrimental contracts. If, nevertheless, the events have specified a sum as liquidated damages for breach of a detrimental contract, the plaintiff can’t each get well the sum and declare an injunction. PER JOSEPH TINE TUR, J.C.A.

APPEAL: THE POWER OF THE COURT OF APPEAL TO HEAR APPEALS
The facility the Court docket of Enchantment could train upon the listening to of an enchantment is circumscribed by the necessities of the provisions of Order Four Guidelines 9(1)-(5) of the Court docket of Enchantment Guidelines, 2011 which gives as follows:
9(1) On the listening to of any enchantment, the Court docket could, if it thinks match, make any such orders as may very well be made in pursuance of an software for a brand new trial or to put aside a verdict, discovering or judgment of the Court docket under.
(2) The Court docket shall not be sure to order a brand new trial on the bottom of misdirection, or of the improper admission or rejection of proof, until within the opinion of the Court docket some substantial fallacious or miscarriage of justice has been thereby occasioned.
(3) A brand new trial could also be ordered on any query with out interfering with the discovering or choice on some other query; and if it seems to the Court docket that any such fallacious or miscarriage of justice as is talked about in Paragraph (2) of this Rule impacts half solely of the matter in controversy or one or some solely of the events, the Court docket could order a brand new trial as to the get together solely, or as to that get together or these events solely, and provides ultimate judgment as to the rest.
(4) In any case the place, the Court docket has energy to order a brand new trial on the bottom that damages awarded by the Court docket under are extreme or insufficient, the Court docket could in lieu of ordering a brand new trial:-
(a) Substitute for the sum awarded by the Court docket under such sum as seems to the Court docket to be correct;
(b) Cut back or enhance the sum awarded by the Court docket under by such quantity as seems within the Court docket to be correct in respect of any distinct head of damages erroneously included or excluded from the sum so awarded.
However besides as aforesaid, the Court docket shall not have energy to scale back or enhance the damages awarded by the Court docket under.
(5) A brand new trial shall not be ordered by motive of the ruling of any choose of the Court docket under {that a} doc is sufficiently stamped or doesn’t require to be stamped. PER JOSEPH TINE TUR, J.C.A.

JUSTICES:

JOSEPH TINE TUR Justice of The Court docket of Enchantment of Nigeria

RITA NOSAKHARE PEMU Justice of The Court docket of Enchantment of Nigeria

MISITURA OMODERE BOLAJI-YUSUFF Justice of The Court docket of Enchantment of Nigeria

Between

IGWE N.A.U. ACHEBE
(OBI OF ONITSHA) – Appellant(s)

AND

1. CHIEF A.C.I. MBANEFO
(MBANEFO ODU III OF ONITSHA)
2. AKUNWATA ONYEACHONAM OKOLONJI – Respondent(s)

JOSEPH TINE TUR, J.C.A. (Delivering the Main Judgment): The proceedings which have given rise to this enchantment arose from the ruling of Nwadi, J., rendered on 20th March, 2006. The Discover of Enchantment was filed on 23rd March, 2006 See pages 303 to 306 of the printed document.

The appellant filed a quick on 17th November, 2006 with a deeming order made by this Court docket on 22nd November, 2006. The first respondents transient was filed on 16th February, 2007. The appellant filed a reply transient on 1st March, 2007. All of the briefs had been adopted on third November, 2016 when this enchantment got here for listening to. The discovered Counsel representing the appellant recognized the next points for willpower within the appellants transient at pages Three to Four Paragraph 2.0:
(i). Whether or not inspite of the candidates software for the withdrawal of the movement, the Court docket was proper in insisting on listening to the identical?
(ii) Whether or not within the nature of the claims being superior and the pleadings, the applicant had infact a authorized proper to the title in difficulty, worthy of safety by an interlocutory order?
(iii) Whether or not the Court docket was proper

within the conclusions arrived at on the problems of established order ante bellum and steadiness of comfort between the events within the swimsuit?
(iv) Whether or not the order made might be justified primarily based on the problems raised and the supplies positioned earlier than the Court docket?

Dr. J.O. Ibik, SAN settled the first respondents transient. The discovered silk formulated the next points for willpower at web page 9 Paragraph 3.Eight of the transient to wit:
(i) Whether or not the trial Court docket exhibited bias and/or acted improperly in entertaining the movement for Interlocutory Injunction (Grounds 1, 2, 5, 6 and seven).
(ii) Whether or not the trial Court docket failed to contemplate the allegation of delay leveled towards the plaintiff/respondent (Grounds 9 and 10).
(iii) Whether or not the trial Court docket exercised its discretion judicially and judiciously in granting the applying (Grounds 3, Four and eight).

The 2nd respondent didn’t file any transient of argument.

Order 18 Guidelines 3(1)-(4) and 4(1) and (2) of the Court docket of Enchantment Guidelines, 2011 gives as follows:
3(1) The transient, which can be settled by counsel, shall comprise an handle or addresses for service and shall comprise what

are within the appellant’s view, the problems arising within the enchantment in addition to amended or extra grounds of enchantment.
(2) The place doable or mandatory, the explanations within the transient shall even be supported by particulars of the titles, dates and pages of instances reported within the Legislation Studies or elsewhere together with the abstract of the selections in such instances, which the events suggest to rely on. The place it’s mandatory, reference shall even be made to related statutory devices, regulation books, and different authorized journals.
(3) The events shall assume that briefs will probably be learn and regarded together with the paperwork admitted in proof as reveals throughout the proceedings within the Court docket under, and wherever mandatory, reference shall even be made to all related paperwork or reveals on which they suggest to rely in argument.
(4) All briefs shall be concluded with a numbered abstract of the factors to be raised and the explanations upon which the argument is based.
(5) Besides to such extent as could also be essential to the event of the argument, briefs needn’t set out or summaries judgments of the decrease Court docket, not set out statutory provisions, nor

comprise an account of the proceedings under or of the info of the case.
4(1) The respondent shall additionally inside thirty days of the service of the transient for the appellant on him file the respondent’s transient which shall be duly endorsed with an handle or addresses for service.
(2) The respondent’s transient shall reply all materials factors of substance contained within the appellant’s transient and comprise all factors raised therein which the respondent needs to concede in addition to the explanation why the enchantment should be dismissed. It shall mutatis mutandis; additionally conform to Rule 3 (1), (2), (3), (4) and (5) of this Order.
Arising from a mixed studying of the above provisions is the truth that the responsibility of the appellant is to enchantment and distill the problems for willpower from the grounds of enchantment. Each the grounds of enchantment and the problems for willpower should come up from the pleadings and the ratio decidendi of the discovered trial Decide.
The responsibility of the respondent who didn’t cross-appeal nor filed a Respondents Discover is to reply all the fabric factors raised within the appellants transient of argument displaying why the enchantment needs to be

dismissed.
Points that overlap could also be merged and decided by this Court docket in order to have a brevi method choice that may decide the precise reason for the controversy that led the appellant to enchantment the choice. See Anie vs. Uzorka (1993) Eight NWLR (Pt. 309) 1 at 16-17.
The events and their respective Counsel are to imagine that the Justices learn the proceedings and the briefs of argument with the intention to render a call or an opinion. That being the case I shall undertake the process set down by the Privy Council in Ijale vs. Shonibare, Privy Council Judgments (1941-1973) by Olisa Chukura, SAN, 1980 Version, web page 947 the place Lord UpJohn held at web page 948 as follows:
There have been many problems with truth earlier than the trial Decide however just one related to this enchantment, specifically, an essential difficulty as to the existence of a ledger or produce e-book alleged to belong to the appellant which the respondent mentioned, would comprise entries regarding the transaction and would set up his case. The appellant denied the existence of any such e-book and the trial Decide determined this difficulty in his favour. The Federal Supreme Court docket differed from the trial Decide essentially in

holding that this ledger or produce e-book have to be in existence. Subsequently it adopted, because the appellant had not produced it, that the inference have to be drawn that its manufacturing would show unfavourable to him. On this floor they allowed the enchantment. In these circumstances, some evaluation of the proof by their Lordships is important however they suggest solely to evaluation the pleadings and proof regarding this query and in no clever to cowl the various different issues which had been in controversy earlier than the trial Decide, however didn’t come up on the enchantment earlier than the Federal Supreme Court docket or earlier than their Lordships.
Additionally in Odutola Holdings Ltd. & Ors. vs. Mr. Kunle Ladejobi & Ors. (2006) 5 SCNJ 63, Ejiwunmi, JSC held at pages 79-80 to wit:
Towards the reversal of this choice, the appellants have raised a number of points which I’ve reiterated above already. However in my humble view, not all the problems raised are mandatory for the willpower of the enchantment. It’s because a number of of the problems raised by the appellants and which the Court docket under made pronouncements upon didn’t stream from the ruling given by the trial Court docket in respect of the

software introduced earlier than it by the respondents.
After a cautious perusal of the judgment of the Court docket under, the grounds of enchantment filed towards that call and the subject material of the applying that led to the ruling of the trial Court docket, it’s my respectful view that the one difficulty which might be germane to this enchantment are the first and fifth points filed by the appellants. As the problems raised by the respondents aren’t dissimilar, they are going to be thought-about within the mild of the arguments superior within the consideration of the deserves of the enchantment.

I intend to depend on the problems formulated by the appellant with the intention to decide this enchantment. I shall now set out the info that led to the submitting of this enchantment which I can garner from the appellants transient from Paragraph 1.2 web page Three to wit:
On the time of submitting the swimsuit, the plaintiff additionally filed an software for interlocutory injunction (See pages 19-22), to which the defendants filed their counter affidavits (See pages 54-58 for 1st defendant, pages 79-123 for 2nd defendant and pages 138-143 for plaintiff/candidates reply to the counter affidavits). On 22nd April, 2005 the first

defendants Counsel filed the Movement at pages 66-71 contending the incompetence of the plaintiffs swimsuit and the movement was argued, to which the Court docket delivered a thought-about Ruling on 21st July, 2005 (Pages 338 -342), refusing the applying. After the Ruling, Counsel for the plaintiff then utilized for the withdrawal of the mentioned software for interlocutory injunction, in order to proceed to listening to on the swimsuit (See pages 143 L11-22), which by the expressed Ruling of the Court docket was not countenanced. In response to that refusal to dismiss the swimsuit, 1st defendant Counsel filed one other software at pages 199-205 for keep of proceedings within the trigger pending their enchantment to this Court docket towards the Courts Ruling of 21st July, 2005. The appliance was argued as at pages 346-348 and the Ruling thereon adjourned to eighth March, 2006, when it was delivered (See pages 349-351).
Instantly after the Ruling was delivered refusing the keep of proceedings, ending with the Courts remark that This Court docket is happy that this software for keep of proceedings is merely geared toward attaining a delay. Vide case of Panalpina vs.

Glenyork (2002) Eight WRN 114 at 123. There is no such thing as a enchantment pending earlier than any appellate Court docket. The appliance is aimed solely as delay ways
The Court docket invited Counsel for the plaintiff to maneuver their software for interlocutory injunction (See web page 352 L16), to which the Counsel obliged, regardless of the sooner software for its withdrawal and the truth that the Movement was not mounted for listening to on that date. On the finish of the listening to thereon (See pages 23-26 for candidates transient of argument, pages 59-63 for 1st respondents transient, pages 76-78, pages 144-148 for candidates reply to respondents transient, and pages 292-302 for 2nd respondents additional written handle) and the argument recorded at pages 346-348, the Court docket delivered a thought-about Ruling granting the injunction. The Ruling of the Court docket appealed towards is at pages 360-371. Our Discover and Grounds of Enchantment are contained within the supplementary Report on the Enchantment at pages 4-12.

The argument of the discovered Counsel for the appellant is at web page Four Paragraph 3.1 to web page 24 Paragraph 3.4(b)(ii) of the transient as follows:
Though the movement

for interlocutory injunction was filed after the inception of the swimsuit, it’s clear on the data that on 21st July, 2005 after the Courts Ruling on the first defendant/respondents software to dismiss the swimsuit as an abuse of course of, and so on, Counsel for the plaintiff/applicant at web page 343 strains 11-13 was quoted as saying Dr. J.O. Ibik recommend that it’s higher to go on with the benefit of the substantive case apart from the interlocutory software. To which as in strains 16-18, our response as recorded says: Dr. Jerry Okolo (SAN) is of the opinion that software quantity (sic) to withdrawal of software for interlocutory injunction, which is sweet. But the Court docket at strains 19-22, of its personal movement held: Court docket: So far as the Court docket is anxious this Court docket shall permit Dr. Ibik to make out time to withdraw or not withdrawn (sic) his movement for interlocutory injunction to restrain the 2nd defendant from persevering with as (sic) to behave as Odu of Onitsha.
Thereafter the 2nd defendants software for modification of our assertion of defence was taken and the case adjourned to 2nd and third November, 2005 for

movement or listening to of the substantive swimsuit. No listening to nevertheless held on the 2 (2) dates till 21st February, 2006 (see web page 346 data), when the first defendants movement for keep of proceedings primarily based on the enchantment filed towards the Ruling on the applying to dismiss was heard. In the middle of argument on this final software, discovered Senior Counsel for the plaintiff mentioned partly: Applicant did not take steps to compile his personal bundle of paperwork this being an interlocutory enchantment and applicant is absolutely conscious that pleadings have been all settled and that the case was mounted for as we speak for listening to. Counsel states that Court docket ought to respect that the plaintiff is complaining that his rightful place has been usurped with the energetic participation of the applicant and by bringing the moment software near the date mounted for listening to speaks quantity of our rivalry that applicant is minded to forestall the listening to of this case.
This similar final remark was adopted by the Court docket at web page 277 strains 15-21 and primarily based on that consideration the Court docket at web page 350 strains 24-26 mentioned in a part of the Ruling delivered: The Court docket is

happy that the applicant bringing the applying so near the date the case is mounted for listening to is orchestrated at dribbling the Court docket and irritating the listening to of the substantive swimsuit.
Instantly after that Ruling rejecting the first defendant software for keep of proceedings pending their enchantment to this Court docket, the Court docket, regardless of the frequent data of each the events, the Counsel and certainly the Court docket, that the movement for interlocutory injunction was not mounted for listening to and even point out on that date, instantly on his invitation thereto recorded as follows: Dr. Ibik mentions the movement dated 25th February, 2005 and filed on 21st March, 2005. He remembers that the movement was supported by fifteen paragraph affidavit and written submission dated and filed on 2nd March, 2005 and thereafter proceeded to listen to the movement for interlocutory injunction, regardless of the objections of Counsel for the first defendant recorded at web page 353 strains 11-18. See additionally web page 361 strains 21-23, the place the Court docket mentioned: Within the curiosity of justice it’s incumbent on the Court docket to train its discretion to listen to the movement on interlocutory

injunction.
We respectfully submit that the foregoing clearly establishes the mindset of the Court docket, which is to grant the interlocutory injunction willy nilly on the ostensible reasoning that the plaintiff applicant, who within the Courts conception was validly invested with the standing of ODU of Onitsha in 1994, was being denied the rights and privileges thereto unduly by irritating the listening to of the swimsuit on its deserves by means of the first defendants Counsels purposes. That consideration in our humble view can’t in any clever represent a correct floor for the interlocutory orders made, nor infact was the Courts perception that the plaintiff was invested with that chieftaincy title of ODU in 1994 appropriate. The plaintiffs pleading at Paragraphs 18 and 19 of the Assertion of Declare (See web page 7 strains 30-42), unequivocally put the date on which the plaintiff/applicant claims he grew to become ODU of Onitsha at IN OR ABOUT JANUARY, 1995 but at web page 370 strains 14-18 of the Courts Ruling, the Court docket held: The Court docket is happy that the plaintiff/applicant has met all the necessities for grant of interlocutory

injunction together with that of ODU OSODI of Onitsha, having been initiated and put in in 1994, that he has a proper which should be protected pending the willpower of the substantive motion
It’s instructive on this rating to look at that this similar Court docket had in its earlier Rulings within the swimsuit maintained the view on the first defendants software for keep of proceedings: This Court docket is happy that this software for keep of proceedings is merely geared toward attaining a delay There is no such thing as a enchantment pending earlier than the appellate Court docket. The appliance is aimed solely as delay ways which was wholly a conjecture apparently disposing the Court docket to some type of a sanction to arrest what’s perceived as improper, despite the fact that the identical Court docket was absolutely appreciative of the truth that: The Court docket agrees with submission of Counsel for the plaintiff/respondent, Dr. J.O. Ibik (SAN) that the gravemen within the on the spot interlocutory enchantment might be raised and absolutely argued and decided within the ultimate enchantment if want be
If certainly that’s so, why ought to the interlocutory injunction sought by the

plaintiff/applicant not additionally wait to be thought-about absolutely on the already scheduled, listening to of the swimsuit on the deserves? The Courts disposition in dashing within the interlocutory software for the orders made, appears within the circumstances lope sided, considerably pointing to a hasty resolve to guard the but unestablished claims being superior by the plaintiffs software within the swimsuit, and in any such setting the top outcome should forestall a miscarriage of justice, as on this case.
ISSUE NO (II) ISSUE OF LEGAL RIGHT:
The very first requirement going through a celebration who wishes an interlocutory injunction in the midst of a swimsuit is to determine that he has a authorized proper within the matter being contested. It’s clear on the pleadings earlier than the Court docket that the title or workplace of ODU OSODI in Onitsha city neighborhood is among the Conventional places of work within the group of the standard Governance of Onitsha city below the Igwe or Obi of Onitsha. It’s pleaded within the plaintiff/candidates assertion of declare: In Paragraph 5 (web page Four data) that: Based on Onitsha Native regulation and Customized the Obi of Onitsha (King) is within the highest

Apex of conventional authority. Paragraph Eight of the identical (web page 5 data) says: Based on Onitsha native regulation and customized the NDICHIE title shouldn’t be hereditary and solely turns into vacant on the loss of life of the title holder. It’s the prerogative of the Obi of Onitsha to confer NDICHIE title on probably the most eligible candidate permitted by NDICHIE title holders.
Then in Paragraph 42(a) (web page 10 data), one of many reliefs sought by the plaintiff is: A declaration that below Onitsha native regulation and customized, the plaintiff is and was duly and correctly put in and initiated into the vacant seat of ODU OSODI of Onitsha in 1994 opposite to the pleading in Paragraph 18 (web page 7 data) that he was enthroned by the ceremony of ISU IKE NA UKPO in or about January, 1995).
These assertions had been successfully handled within the 1st defendants assertion of Defence at Paragraph 5(iii), (iv), (v), 6 and 9 (pages 32, 34 data), notably in Paragraph 5(v), the place it’s pleaded: The Ndichie title, not like Ounces title shouldn’t be taken as of proper. Quite the opposite, it’s conferred by the Obi of Onitsha at his pleasure,

on individuals from among the many Ounces title holders whom he feels have distinguished themselves and may help him in administration of geopolitical models of Onitsha. It’s not a self edifying ceremony however certainly a name to service and a mere privilege.
Then at Paragraphs 24 and 26 (web page 41 data), it was contended that the plaintiff was validly destooled and the 2nd defendant validly put in as ODU of Onitsha by the first defendant. On the a part of the 2nd defendant, Paragraphs 5, 8, 48 and 50 of the Amended Assertion of Defence and Counter declare successfully denied the mentioned plaintiffs averments, (pages 171-180 data) particularly Paragraph 50(a)-(g) which clearly assert the standard proper of the Obi of Onitsha to nominate and destool any such appointee for causes proven.
We submit that on the pleadings there may be at the very least settlement between the events that:
(a) The Obi of Onitsha is the unique authority vested with the Proper (whether or not below consultations or not) to impact all such appointments, together with the ODU OSODI titled and
(b) That the fitting to be so appointed is out there to all and each indigene of Onitsha as soon as so

certified.
It due to this fact follows that the one discernible, identifiable authorized proper within the circumstances is that of the Obi of Onitsha because the unique appointing authority; and consequently there can’t be mentioned to exist in anybody Onitsha indigene (even when so entitled to be appointed), authorized proper to be so appointed. Put in one other approach, probably the most that may be mentioned of anybody so entitled, accords him a mere privilege to be conferred on such a celebration on the occasion of appointment, the standing of which he would thence on take pleasure in durante officii. This facet was made a part of our additional submissions in opposition to the interlocutory injunction sought (see pages 292-193 data), the essence of which is that after the Obi is acknowledged as the only real unique appointing authority thereto, there can’t be a authorized proper within the plaintiff towards any threatened or precise violation of any such non existent proper.
In Magi vs. College of Agriculture, Makurdi & Ors. (2006) Vol.Four WRN 86 at 118-121 the place the difficulty was whether or not a College can withhold or refuse to award a Diploma to a scholar who fulfils its diploma necessities, the Supreme

Court docket approving the dicta, developed in Turner vs. Board of Trustees of College of Illinois 363 N-E second 208 (III Ct. App. 1977), and College of Calabar & Ors. vs. Esiaga (1997) Four NWLR (Pt. 502) 719 held inter alia:
Certainly if a College has a discretion and never a compulsory responsibility to resolve who it may possibly/will award its diploma and Part 7 of the College Act, 1992 vests within the 2nd respondent (the Senate), to the exclusion of some other physique of the College, the only real duty for the award of diploma and such different qualification as could also be prescribed in reference to examinations held, how can/may it’s mentioned that it acted maliciously, capriciously or whimsically in its choice contained in Exhibit 6? (refusing the award/expelling the coed from the College) I feel not.
In as far as the examinations are carried out in accordance with the College guidelines and rules and duly permitted and ratified by the College Senate, the Courts don’t have any jurisdiction within the matter. A Court docket of regulation which dabbles or flirts into the sector of College examinations, a most essential and delicate facet of College operate

ought to remind itself that it has encroached into the bowels of College authority. Such a Court docket ought to congratulate itself of being a celebration to the destruction of the College and that will probably be dangerous not just for the College but additionally for the complete nation. Let that day not come.
The appointment at stake is made topic to the customs and traditions of Onitsha and the right ends of justice might be met solely on the finish of a listening to on the deserves and never by an interlocutory willpower, akin to would within the circumstances confer a authorized proper within the get together complaining when infact there isn’t a different however a mere privilege vested in him. Moreover, the exclusivity of the Obis proper to nominate his Ndichie appears to us absolutely vindicated within the case of Chief Netufo vs. Chief Omoolorun (2005) 43 WRN 55 at 74-81 the place in a chieftaincy tussle by which precisely the identical reliefs as on this case had been sought, the Supreme Court docket mentioned in elements (despite the fact that the matter went to full listening to):
From the proof adduced earlier than the trial Court docket it seems to me that the one difficulty for willpower on this enchantment is who between the appellant and

respondent is the permitted Oloja of Oluagbo or just placed on the totality of proof earlier than the trial Court docket, was the appellant not appointed or put in the Oloja of Oluagbo by the Olu of Igbobini?…
It was in proof earlier than the trial Court docket that Exhibit D the conferment of the Oloja of Oluagbo to the appellant was retracted by the Olu of Igbobini by means of Exhibit F, the appellant himself acknowledged this act
If the Olu of Igbobini because the paramount Ruler of Igbobini Kingdom, is the one who has the general authority to approve the appointment of any individual to any workplace of a Chief within the Kingdom, now denounced and says he doesn’t acknowledge the title of that individual or that he didn’t appoint or set up the individual to any Chieftaincy stool, or as on this case of the appellant because the Ogoro of Oluagbo, that energy or authority can’t be challenged by the person involved until after all by the neighborhood as an entire.
The identical views had been held in Ideozu vs. Okpa Ochoma & Ors. (2006) Four NWLR (Pt. 9710) 364 or 20 WRN 145, (at web page 165) the place Oguntade, JSC delivering the main judgment, described the

Chieftaincy Stool in contest as a privilege which the first defendant had loved since eighth December, 1981.
It’s trite regulation that an applicant for interlocutory injunction should first set up his entitlement to a authorized proper therein ever earlier than the succeeding issues of the necessities of significant points for trial and steadiness of comfort will come up. See Egbe vs. Onogun (1972) 1 All NLR (Pt.95); Ojukwu vs. Gov. of Lagos (1986) Three NWLR (Pt. 60) 39 Akapo vs. Hakeem (1992) 7 SCNJ 119; Globe Fishing Ind. Ltd. vs. Coker (1990) 11 SCNJ 56 at 65-86. A mere privilege as on this case can’t due to this fact mature right into a authorized Proper for which such an order can correctly be made. To that extent the requisite precondition for the sustenance of the applying for interlocutory injunction can’t be mentioned to have been established, the so referred to as proper claimed being infact a mere privilege conferred on the applicant by the appointment, if certainly correctly made a truth additionally strenuously challenged within the swimsuit on the pleadings.
The previous arguments herein lead us to the subsequent level on the over all analysis of the problems of truth positioned earlier than the

Court docket for consideration on the applying.
On the pleadings, Paragraphs 5 of the assertion of declare accepts the primacy of the Obi of Onitsha within the conventional affairs of the City/Group (See pages Four and 5 data). Paragraphs 36-40 thereof additional present that the plaintiff/applicant had by the proclamation made by the Obi together with the members of Onitsha Group dated 18th July, 2004, been eliminated and stripped of his title as ODU OSODI whereas the 2nd defendant had been put in in that workplace as his alternative. Then Paragraph 42(a) of the reliefs sought, requested for A declaration that below Onitsha native regulation and customized the plaintiff is and was duly and correctly put in and initiated into the vacant seat of ODU OSODI of Onitsha in 1994. This was adopted by the injunction claimed in Paragraph 42(4) (web page 10 data).
On the a part of the defence, in Paragraphs 5(i), (ii), (iii), (v), 6, 9, the first defendant challenged the aforesaid claims of the plaintiff and in Paragraphs 13, 24, 26 and 29, contended that the plaintiff had since eighth July, 2004 been eliminated/destooled and the 2nd defendant duly appointed (pages 33-43).

For the 2nd defendant, Paragraphs 8, 9, 14, and 48 made pertinent rebuttals of the plaintiffs claims with Paragraph 50(a), (d) and (e) confirming the stool of the 2nd defendant, ending with a counter declare at Paragraph 51(4) that 2nd defendant is the current and reigning Odu of Onitsha (See pages 173-180).
These contentious had been additionally canvassed and emphasised within the counter affidavits of the defendants (See notably Paragraphs 20, 21, 23, and 31 of 1st defendants counter affidavit, pages 79-123 on the relative destooling and set up of the events, and Paragraphs 5, 6, 8, and 11 of 2nd defendants counter affidavit (pages 80-83).
The disclosure implied in these opposing contentious had been to a big extent, on the a part of the defendant, backed up, with paperwork connected as Displays B, C and F all of which verify that the plaintiff (rightly or wrongly) had since eighth July, 2004 been destooled and the 2nd defendant put in in his place on ninth July, 2004. It additionally established the festering dispute between the events on which of the occasions of destooling

and set up was performed in accordance with the relevant customs and traditions of Onitsha city neighborhood.
We submit that for the bottom issue to be established, for one to be able to choose which of those contentions to just accept, proof of that relevant customized and custom should first be led and canvassed on both facet, making an allowance for that below Part 14(1) of the Proof Act, 1990, proof of customized (of the sort being contested) is a truth to be established by proof. The trial Court docket nevertheless whereas seemingly appreciating these consideration, rejected off hand and outright all of the mentioned contentions of the relevant customs and traditions put ahead by the defence, and, in flip gave complete credence to the variations advocated by the plaintiff, all that with none proof in any way on both facet. At web page 365 strains 26 to web page 366 strains 1-2 the Court docket mentioned: The bundle of reveals connected to the counter-affidavit of the 2nd defendant/respondent have virtually nothing to do with the plaintiff/candidates complaints The plaintiff/candidates affidavit is straight ahead and to the purpose. This differs from the

counter affidavit of the first and 2nd defendants/respondents, which launched into a voyage of circumnavigation.
The authorities are legion that the place there are substantial conflicts on materials problems with truth on the interlocutory stage of trial, the Court docket is sure to resort to proof for his or her decision in accordance with the necessities of justice if it should so resolve at that stage. See Emmanuel Anzaku & Ors. vs. Govt Gov. Nasarawa State (2006) 12 WRN 140 at 207-208 the place the Court docket noticed inter alia, counting on earlier choices:
The Court docket the place the necessity arises, ought to invite proof to clear points the place there are conflicts within the proof of opposing events. In Ebohon vs. Legal professional-Basic of Edo State (1997) 5 NWLR (Pt. 505), 298 at 309, it was held that when a Court docket is confronted with affidavits that are irreconcilably in battle, the Decide listening to the case to resolve the battle ought to ask the events and listen to oral proof from the deponent or such different witnesses because the events could also be suggested to name. See Uku vs. Okumagba (2001) 41 WRN 133; Olu-Ibukun vs. Olu-Ibukun (1974) NSCC 91 at 95; Eboh vs. Willie Oki (1974)

1 SC 179 at 187 and Chairman N.P.C. vs. Chairman Ikawe L.G. (2001) 13 NWLR (Pt. 731) 540 at 556, 559 pages 563 and 565.
The place there may be documentary proof duly positioned earlier than a trial Court docket, it’s obliged to look into it as a part of the proof on which to base its judgment. It’s not solely by calling oral proof that conflicts in an affidavit proof might be resolved. The place there may be genuine documentary proof supporting one of many affidavits in battle with one other, the trial Court docket ought to have a look at it and apply it in coming to a simply choice. See Nwosu vs. Environmental Sanitation Authority (2004) 20 WRN 94, (1990) 2 NWLR (Pt.135) 688. Chairman NPC vs. Chairman Ikare L.G. (2001) 13 NWLR (Pt. 731) 540 at 558-560; Eyo vs. Inyang (2001) Eight NWLR (Pt. 715) 304.
Confronted with conflicting affidavits on the operative customs and traditions of Onitsha, as clearly contended within the pleadings and affidavits, the trial Court docket ought to have referred to as for oral proof to allow it decide, if it should at that stage, the reality of the matter. It’s equally the regulation {that a} Court docket ought to desist from making a discovering or reaching a conclusion on the substantive matter

in difficulty earlier than the events in an interlocutory continuing. See Olaniyan vs. Aroyehun (1991) 5 NWLR (Pt.194) 652; Asere vs. Asere (1991) 6 NWLR (Pt.197) 316; SGB Ltd. vs. Buraimoh (1991) 1 NWLR (Pt.168) 428.
By reaching the conclusion at web page 370 strains 14-29: The Court docket is happy that the plaintiff/applicant has met all the necessities for the grant of interlocutory injunction together with that as ODU OSODI of Onitsha, having been initiated and put in in 1994 that he has a proper which should be protected, pending the willpower of the substantive swimsuit.
The place that initiation, and set up of the applicant is clearly put in difficulty as aforesaid, (even with out contemplating the complement of the problems of his elimination), quantities to announcing a verdict upholding the rights claimed with out trial. As earlier noticed one of many plaintiffs principal reliefs sought in Paragraph 42(a) is A declaration that below Onitsha native regulation and customized the plaintiff is and was duly and correctly put in and initiated into the vacant seat of ODU OSODI of Onitsha in 1994 which the 2nd defendant in Paragraphs 11, 12, 13, 21, 24,

25, 26, 27 and 28 of the Amended Assertion of Defence/Counter Declare put in difficulty on the trial, supported by a surfeit of the documentary proof thereto beforehand talked about. To uphold that proper but to be canvassed on the listening to, at an interlocutory stage and not using a correct decision of the required proof, erects a sordid occasion of travesty of justice. It’s merely a case of awarding that proper being sought within the continuing ever earlier than the proof is gone into, which might by no means be correct or proper. In essence the place of the Court docket at that stage of the trial has accepted (i) That there’s an damage in violation of the candidates rights for which he can’t be adequately compensated in damages (ii) That the damage constitutes a violation of the candidates rights/privileges accruing to him in that title completely which he contends, is in the course of the candidates lifetime, and (iii) That the standard title of ODU OSODI in Onitsha City solely turns into vacant on the loss of life of the incumbent applicant, in any circumstances, below the customs and traditions of the City; even supposing all these points represent the first

controversy on which the Court docket is being referred to as upon for a willpower, on the conclusion of trial within the Courts judgment.
ISSUE NO (III) STATUS QUO ANTE BELLUM:
Though the Court docket made a slightly scant reference to the difficulty of what within the circumstances of the case ought to correctly characterize the established order ante bellum, the place it mentioned, at web page 369 strains 30 to web page 370 strains 1-4: the treatment for interlocutory injunction is non permanent and designed to maintain events in established order ante bellum pending the willpower of the substantive motion
It’s out submission that it completely misconceived the right identification of what was infact the established order between the events on the level when the litigation ensued.
As earlier demonstrated, the plaintiff/candidates pleading in Paragraphs 18 and 19 of his assertion of declare categorically pleaded that his initiation and set up as ODU OSODI of Onitsha was in or about January, 1995 but by the discovering of the Court docket within the Ruling, he was initiated and put in in 1994. Be that as it could, one of many

plaintiffs reliefs claimed is for a declaration of the validity of that his investiture. On the a part of the defence, the rivalry each on the pleadings and counter affidavits, is that the plaintiff mentioned authentic investiture was performed in contravention of the customs/traditions of Onitsha and is due to this fact null and void. The identical defence supplies additionally contend that the plaintiff had in any occasion been eliminated as at eighth July, 2004 by the acknowledged unique appointing authority (the Obi of Onitsha) and the 2nd defendant correctly invested with the title on ninth July, 2004. In that setting two distinct points come up on these info, specifically, (a) the propriety of the plaintiffs investiture, in 1994 or 1995 and (b) the validity of his elimination on eighth July, 2004.
This swimsuit was after all initiated as per the endorsements on the Writ of Summons on 1st March, 2005. It follows that as on the time of its initiation two separate impartial, despite the fact that related occasions, had been put in place, which now type the muse or reason for motion within the claims being superior. These occasions are firstly the REMOVAL of the plaintiff as ODU OSODI and secondly the

set up of the 2nd defendant in that title. Each of those occasions on the events displaying, unquestionably occurred on eighth July, 2004 and ninth July, 2004, for the swimsuit filed on 1st March, 2005. Little doubt the established order ante bellum in that circumstances have to be the 2 (2) mentioned occasions of eighth July, 2004 and ninth July, 2004, and it was, with respect totally fallacious for the Court docket to set the established order ante bellum, as discovered within the Ruling, to be in 1994. That false impression clearly, in our view, misled the thoughts of the Court docket on the very important issues relevant to the grant of the order for interlocutory injunction made. The right identification of this requirement of established order turns into essential on the consideration of the steadiness of comfort as between the events within the litigation, and the place it’s misplaced any discovering on that steadiness of comfort is sure to be defective. That was why we had argued on the listening to of the applying (See 2nd defendants written handle at pages 292-293) that the grant of the interlocutory injunction sought will quantity to an order of re-investiture of the title on the plaintiff/applicant, who had

infact, even by his personal displaying, been eliminated or divested with the title, as on the time when he filed his summons in Court docket. By the choice in UTB Ltd. vs. Dol. Pharmacy (Nig) Ltd. (2002) Eight NWLR (Pt. 770) 726 at 751 established order ante bellum is the scenario or place prevailing earlier than the defendants conduct complained of by the plaintiff…
It appears to us that the views expressed by Adefarasin, C.J., Lagos State in Alhaji Balarabe Musa vs. Gov. Kaduna State (1981) NCLR 763 stand germane right here, the place he mentioned:
As a voluntary affiliation it (any group of peoples) has the rights to put down its choices even the place they’re unreasonable. They need to be obeyed or the member in disobedience is entitled to stop. The get together in its personal proper is supreme over its personal affairs. This have to be mentioned boldly and clearly. Until it has violated its personal constitutional provisions, the Court docket won’t intrude. The Court docket won’t substitute its personal will for that of a political get together or some other voluntary affiliation. Those that be a part of golf equipment or associations, or political events should pay attention to the perils of membership. The bulk

will should prevail whether or not it’s cheap or unreasonable. The Court docket can’t intrude in a matter akin to this.
Till the problems in contest have been gone into, with the requisite proof on each side, will probably be untimely to uphold the naked claims of both get together within the proceedings at an interlocutory stage. See additionally Ideozu vs. Ochoma (supra) at web page 161. Apart from, the accepted incontrovertible fact that the problems complained of had lengthy been accomplished ought to impel any Court docket of regulation to refuse the order sought.

The first respondent set out the info that led to this enchantment at web page 2 Paragraph 2.1 to web page Eight Paragraph 3.7 within the transient as follows:
For a correct appreciation of the arguments canvassed on the problems distillable within the on the spot interlocutory enchantment, the pertinent info of the case could also be briefly summarized as follows:
The plaintiff/respondent sued the first defendant/appellant and the 2nd defendant/respondent in Swimsuit No.O/109/2005 for the wrongful act of the first defendant/appellant purporting clandestinely to put in the 2nd defendant/respondent because the ODU OSODI of Onitsha throughout the incumbency of the plaintiff/respondent as ODU

OSODI and in breach of the native regulation and customized of Onitsha.
The motion in Swimsuit No.O/109/2005 is in private capability. Concurrently with the graduation of the mentioned swimsuit on 25th February, 2005 the plaintiff/respondent introduced a movement on Discover for Interlocutory Injunction restraining the defendant when it comes to the prayers therein sought. The mentioned movement at pages 19 to 26 of the document was initially mounted for listening to on 25th April, 2005 earlier than Hon. Justice Umeadi, J. However earlier than the listening to date the case was transferred to Honourable Justice J.C. Nwadi for causes or grounds undisclosed to the plaintiff/respondent.
With the graduation of the mentioned motion the plaintiff/respondent filed his assertion of declare see pages Four to 11 of the document. After getting into an look the first defendant/appellant filed his personal assertion of defence on sixth April, 2005 (see pages 31 to 43 of the document) coincidentally with the assertion of defence of the 2nd defendant/respondent at pages 44 to 53 of the document.
On 18th April, 2005 the first defendant/appellant reacted to the movement for interlocutory injunction by submitting a Counter-Affidavit and written handle at

pages 54 to 65 of the document. On 22nd April, 2005, the 2nd defendant/respondent additionally filed his personal Counter Affidavit and written handle at pages 76 to 125 of the document.
On 22nd April, 2005, the first defendant/appellant introduced a movement on Discover (with no return date q.v. pages 66 to 71 of the document) searching for keep of additional proceedings within the substantive swimsuit and in addition difficult the competency of the mentioned swimsuit. On the identical day the 2nd defendant/respondent reacted to the movement for interlocutory injunction by submitting his personal Counter Affidavit and Written Tackle. As a result of peripheral nature of the orders sought within the movement earlier introduced by the first defendant/appellant difficult the competency of the plaintiffs motion Hon. Justice J.C. Nwadi, J., to whom the case was in the meantime transferred by order of the State Chief Decide determined, with the consent of Counsel for all of the events, to first hear the mentioned movement.
On 21st July, 2005, the decrease Court docket delivered its Ruling dismissing the mentioned movement referred to in Paragraph 2.8 (supra). Counsel for the plaintiff/respondent referred to as the eye of the decrease Court docket to the undisposed movement for

interlocutory injunction laid out in Paragraph 2.5 (supra) and urged that it may be higher if the substantive swimsuit had been proceeded with since pleadings had been filed and exchanged. Discovered Counsel for the first defendant/appellant reacted to the mentioned suggestion by asking Counsel for the plaintiff/respondent to make up his thoughts whether or not to withdraw the mentioned movement or not. Discovered Senior Counsel for the 2nd defendant/respondent opined that the suggestion by Counsel for the plaintiff/respondent was tantamount to withdrawal of the movement below reference. Nonetheless, the decrease Court docket was firmly of the view that the Court docket ought to permit the Counsel for the plaintiff/respondent time to make up his thoughts whether or not to withdraw the mentioned movement or not; and so dominated.
Instantly thereupon the discovered Senior Counsel for the 2nd defendant/respondent moved his movement at pages 154 to 170 of the document for go away to amend the 2nd defendants assertion of defence. This was granted with out objection. Thereupon 2nd defendant/respondent filed his amended assertion of defence with counter-claim at pages 232 to 241 of the document.
The first defendant/appellant appealed

towards the order dismissing his preliminary objection by his Discover of Enchantment dated 29th July, 2005 (see pages 181 to 188 of the document). He adopted up the mentioned Discover of Enchantment with one other movement on Discover dated 14th February, 2006 praying for keep of additional proceedings q.v. pages 199 to 222 of the document. On the finish of the proceedings on 21st July, 2005, the case was formally adjourned to 2nd and third November, 2005 for movement or listening to of the substantive swimsuit see web page 244 strains 17 to 19 of the document. The subsequent listening to date was on 21st February, 2006 as a result of intervening public occasions.
On 21st February, 2006, the first defendant/appellant moved his movement aforementioned. This software was contested and Ruling thereon was adjourned to eighth March, 2006 when it was delivered with an order of dismissal of the mentioned software.
On eighth March, 2006 after the mentioned Ruling was delivered, Counsel for the plaintiff/respondent reminded the decrease Court docket of the long-outstanding movement for interlocutory injunction aforesaid and begged to maneuver. He was permitted to maneuver the applying. Thereafter Counsel for the first defendant/appellant and 2nd

defendant/respondent had been on their software, granted an adjournment to 20th March, 2006 to reply to the argument already canvassed in assist of the applying for interlocutory injunction.
By a movement on Discover dated 15th March, 2006 (with no return date) q.v. pages 242 to 257 of the document, discovered Counsel for the first defendant/appellant prayed the decrease Court docket for keep of proceedings and for an order expunging Counsels submissions in assist of the applying for interlocutory injunction. Additionally prayed for is an order setting down the mentioned software for interlocutory injunction for argument afresh. This additional software for keep was belittled by Counsel for the plaintiff/respondent. Discovered Senior Counsel for the 2nd defendant/respondent additionally indicated his willingness to argue his response to the argument for interlocutory injunction. The decrease Court docket directed the Counsel for the defendant/appellant to argue in opposition to the applying for interlocutory injunction. Each Counsel submitted their respective arguments accordingly. Thereafter Ruling was reserved for 27th March, 2006. It was nevertheless delivered on 28th March, 2006 as a result of

intervening public vacation.

ISSUE (I):
I needn’t reproduce the argument of the discovered Counsel within the appellants reply transient as a result of when the enchantment got here up for listening to on third November, 2016, there may be nothing to indicate on document that the discovered Counsel representing the first respondent argued any preliminary objection in respect of the incompetency of the Discover and Floor of Enchantment to warrant the appellant submitting a reply transient. No matter preliminary objection the first respondent may need raised within the transient of argument however not argued is deemed deserted. I shall confer with the proceedings of the Court docket under that had been carried out on 20th March, 2006 which have given rise to this enchantment. The proceedings are at pages 354 to 359 of the printed document to wit:
20th Day of March, 2006.
Plaintiff is current
2nd defendant is current.
Dr. J.O. Ibik (SAN) of Counsel seems for the plaintiff and with Ibik G.I. (Mrs) and Ikedigwe B.C., Esq.
F.O. Ofodile, Esq. of Counsel with Carol Anyikwa (Mrs) for the first defendant.
E.D. Chukwuma, Esq. of Counsel with C.C. Ononye, J.O. Emordi and Ngozi Okolonji for the 2nd

defendant. Counsel says that Mrs. Emordi informs him that J.H.C. Okolo (SAN) asks that matter be stood down.
Dr. Ibik (SAN) informs Court docket that J.H.C. Okolo knowledgeable him to face down the matter down that he’ll make a quick cease at Awka and acquire date and rush down.
Court docket:- Swimsuit is stood down until 10-11am.
J.H.C. Okolo (SAN) now seems for the 2nd defendant and with him Dr. Z.C. Anyogu, E.D. Chukwuma, C.C. Ononye, J.O. Emordi, Miss. Ngozi Okolonji for the 2nd defendant.
Dr. J.O. Ibik (SAN) provides the title of Chudi Obieze, I.G. Ibik (Mrs) and Ikedigwe B.C.
E.O. Ofodile, Esq. seems with Carol U., Anyikwa (Mrs) for the first defendant.
Dr. J.O. Ibik asks Court docket to proceed with movement for interlocutory injunction. That every Court docket has its personal responsibility to convey to bear on the litigants and has to behave in accordance with the rule of sport. Counsel doesn’t perceive how software within the Court docket of Enchantment for keep of proceedings in the principle might be mentioned to be at risk or rendered worthless of the Honourable Court docket mere to conclude argument on the movement for interlocutory injunction aimed on the restoration of the established order ante which is the

restoration of the plat type of the principle trigger will probably be addressed each in proof and authorized submission. Counsel asks Court docket to discountenance the invitation to remain proceedings on this case.
J.H.C. Okolo (SAN) informs Court docket that he’s ready to proceed for interlocutory injunction.
E.O. Ofodile is now requested to ship his reply within the movement for interlocutory injunction. Counsel refers back to the 1st Counter affidavit filed of thirty paragraph deposed to by Nwolisa Agusiobo dated 18th April, 2005 and filed the identical day. Counsel depends on all of the paragraph of the affidavit in addition to a written handle filed on behalf of the first defendant/respondent dated 15th April, 2005 and filed on 18th April, 2005. Counsel provides that the gravamen to the objection being sought is that you don’t make injunction towards a accomplished act.
J.H.C. Okolo (SAN) refers to Counter Affidavit filed by 2nd defendant dated 22nd April, 2005 with numerous reveals. On 22nd April, 2005, Counsel filed reply transient on the applying. Counsel depends to the processes in opposition to the applying. Abstract of 2nd defendants place that going by the assertion of declare.

Counsel needs to direct Courts thoughts to Paragraphs 34 and 36, Paragraph 34 states that 2nd defendant has since March, 1994 assumed paraded himself as Odu. Refers back to the paragraph which publicly terminated what plaintiff use to take pleasure in. Counsel says that plaintiff is now asking in 2006 to wave a bond interlocutory order. Provides that equally doesn’t help the indolent. Counsel allies himself with the difficulty of the act having been accomplished way back. Such a order being sought shouldn’t be amenable.
Counsel observes on the declare at Paragraph 42(a), (b) and (c) plaintiff is asking to achieve a discovering that his first set up was so as and requests his Lordship that as since that set up is upheld nobody will in his life time be put in. Easy nationality demand that the validity of his recognition must be reached that the Court docket can attain the choice that he was correctly put in on the finish of the case. Counsel states that till that call is reached the Court docket will probably be leaping the gun earlier than reaching the purpose.
Refers back to the life time unique proper is topic to proof that are issues of Customary Legislation and till the Court docket hears

proof won’t be able to achieve choice a method of the order. Counsel urges Court docket to have regard to the case of the Supreme Court docket in Elesie Agba vs. Okogbue (1991) 7 NWLR (Pt. 204) at web page 391.
Judgment written by Hon. Justice P.Okay. Nwokedi coping with up to date societal Customary Legislation and his view is that Customary Legislation is rarely static and if it had been it’ll lose its essence. On this case an age grade imposed explicit sample of conduct of all of the folks coming to the group and in the midst of it sure sanctions had been imposed for non-compliance, and when it occurred they sequestrated or seized his property and the sufferer went to Court docket and mentioned the grade has no rights to grab his property and the last word view of the Supreme Court docket that conduct have to be seen with the acceptance of the conduct inside the neighborhood not like what it was earlier than our forefathers choices is that the conduct was not enforced despite the fact that they didn’t say the conduct was repugnant, that may be a conduct which had existed for hundreds of years was rejected.
The relevance is that the customary apply is a unstable idea and that what our forefathers did shouldn’t be

what occurs as we speak. States that plaintiff ought to get into the witness field and say how he’s entitled to. Counsel refers to a different facet is the propriety of constructing the order for Interlocutory Injunction when the time state of the previous have been accepted by each side.
Counsel states that the title shouldn’t be one thing private however created inside Onitsha indigenes and the rights and obligations revolve inside the similar neighborhood and never the individual so put in however the neighborhood and that it requires the acceptance of the neighborhood to put on an empty garland and if it isn’t accepted by the neighborhood it turns into meaningless.
Submits that neighborhood curiosity can’t be stopped at this stage cannot say to the 2nd defendant cease parading your self as Odu, till I attain a call on this swimsuit. And that going by the neighborhood essence any choice a method or different won’t change the order. Counsel refers to Bulunkutu vs. Zwangina (1997) 11 NWLR (Pt. 529) 526 notably 539-540 that Court docket ought to desist from making orders in useless and if the neighborhood says they dont know the individual in favour of interlocutory injunction the place then is the Court docket. The frequent

parlance is that you just take out fish from Anam citizen you will have affected the complete Anam citizen. Submits that the steadiness of comfort is on the Onitsha neighborhood and never on the dramatis individual, Counsel urges Court docket to carry that such orders ought to not be made at this stage let the plaintiff go into the witness field. Akinwose vs. AIT Ltd. (1961) WRNLR 116 urges Court docket to reject the applying.
Dr. Ibik seeks an indulgence to make use of the affidavit sworn by plaintiff/applicant elevating a brand new incontrovertible fact that weren’t contained within the plaintiffs supporting affidavit for interlocutory injunction. Refers back to the written handle and reply to level of regulation.
Counsel observes that on the stage of interlocutory software an iron clad (gate) between the issues to be decided in the principle case and the issues raised within the interlocutory injunction. Refers to factors raised by J.H.C. Okolo (SAN) the factors in assertion of declare and substantive reliefs claimed opining that till your Lordship involves the conclusion that the plaintiff is entitled to the declaration sought by him one can’t have a look at the interlocutory software. That’s as a result of the place of 2nd

defendant was accepted to have been in existence since 1994 that Court docket mustn’t grant the applying. Counsel states that 2nd defendant by his amended assertion of defence has put in a declaration in his favour in his counter declare. Each declare and counter claims are to be addressed on the listening to of the substantive swimsuit not at this stage of interlocutory injunction. Any level for the substantive trial shouldn’t be nibbled at this stage for interlocutory software the triable points was distilled from NAL Financial institution (2002) states that the ratio in that case is that the Court docket seems on the affidavit supplies in order to find out whether or not there’s a triable difficulty.
On the difficulty of accomplished act Governor of Lagos State, Onyeso & Nebedom, the place the Supreme Court docket held that the place the alleged full act is the very reason for motion the Court docket should ignore the so referred to as accomplished act. It’s the train of the Courts discretion to order injunction. Refers to Paragraph 2 of written handle. Akibu vs. Oduntan states that it’s non-issue Onitsha indigenes aren’t events to the swimsuit, states that in plaintiffs affidavit 2nd defendant insatiable quest to

be an Odu in 1994 ended up in a fiasco in Swimsuit No.O94 cited which was taken out and the current plaintiff and late Igwe of Onitsha that no physique appointed him Odu and he recited and mentioned he was not .
On difficulty of delay, motion is taken with the approaching into play with 1st defendant, the 2 collaborated one with the opposite secretly to put in 2nd defendant as Odu and as quickly because it was found plaintiff got here to Court docket. Submit that steadiness of comfort tilts in favour of the plaintiff particularly when Onitsha neighborhood alone shouldn’t be a part of the sport. Submit that 2nd defendant stops parading as Odu until the top of the swimsuit.
J.H.C. Okolo refers to Court docket to the reveals on this trial in view of Displays B, C and F and alongside Onitsha customized within the counter affidavit says that merely motion is that 2nd defendant filed counter-claim. Check with pendency of sure motion, and that Paragraph 15 if reply to amended assertion of declare has been overtaken. Counsel refers to accomplished act and it’s only in relationship to interlocutory motion is concluded that’s ultimate for interlocutory injunction.

The Court docket can set it apart in his judgment if he finds it mandatory to take action.
Counsel asks the query that if injunction is granted the Odu having been eliminated and new Odu restrained that will probably be an affront for Onitsha folks. States that substantive case needs to be heard.
Court docket:- On settlement of Counsel software is adjourned to 27th March, 2006 for Ruling.
SGD. J.C. NWADI, JUDGE, 20/3/2006.

The discovered trial Decide rendered his choice on 12th April, 2006 (See web page 360 to 371 of the printed document). The Court docket held at web page 369 strains 30 to web page 371 strains 1 to 13 of the printed document as follows:
Within the case of Onyesoh vs. Nebedum (1992) Three NWLR (Pt. 229) 315 the Supreme Court docket restated the rules governing grant of an interlocutory injunction which embrace that an injunction can solely be granted to assist or defend a authorized proper, the treatment for interlocutory injunction is non permanent and designed to maintain the events in established order ante bellum pending the willpower of the substantive motion, being an equitable treatment the grant of the interlocutory injunction is discretionary, the applicant should present from the

affidavit in assist of his software that there’s a real dispute between the events to be decide earlier than the Court docket, will probably be a robust floor in favour of the applicant if he can present that the conduct of the respondent ins unjustified, and that the applicant can’t be satisfactorily or adequately compensated in damages, and it isn’t the regulation that the applicant should present a prospect of acquiring a everlasting injunction on the finish of the trial. It’s ample for the applicant that there have to be a severe query between the events to be tried on the listening to. The Court docket is happy that the plaintiff/applicant has met all the necessities for grant of Interlocutory Injunction together with that as Odu Osodi of Onitsha having been initiated and put in in 1994 that he has a proper which should be protected pending the willpower of the substantive motion, that there’s a severe difficulty on the proof earlier than the Decide between the events to be tried, and that the steadiness of comfort is in favour of granting the applying than refusing it. Vide Akapo vs. Hakeem Habeeb (supra). This software should succeed and it succeeds. The Court docket

hereby makes the next orders:-
1. The defendant/respondents, their servants, brokers or privies are hereby restrained by an interlocutory injunction from interfering and, or additional interfering with the plaintiff/applicant within the train of his rights and efficiency of his capabilities because the ODU OSODI of Onitsha as prescribed below Onitsha Native Legislation and Customized pending the listening to and willpower of the substantive swimsuit within the above proceedings.
2. The 2nd defendant/respondent is hereby restrained by interlocutory injunction from parading himself because the ODU OSODI of Onitsha and or purporting to train, usurp or persevering with to usurp the authentic powers, capabilities, rights, privileges vested within the applicant because the duly put in and initiated ODO of Onitsha as established below Onitsha Native Legislation and Customized pending the willpower of the substantive swimsuit.
3. The plaintiff/applicant is hereby ordered to enter into bond with the Assistant Chief Registrar, for the sum of N20,000.00 (Twenty Thousand Naira) ought to it prove that this order mustn’t have been made.
SGD. J.C. NWADI, JUDGE, 12/4/2006.

The Discover of Enchantment

is at web page 303 to 305 of the printed data.

The movement which the appellant complains the discovered trial Decide didn’t afford him a chance to be heard was dated 15th March, 2006 and filed on the identical day. It’s at pages 242 to 243 and the affidavit in assist is at web page 245 to 246 of the document to wit:
1. An order staying additional proceedings on this swimsuit pending the listening to and willpower of this movement on Discover.
2. An order of Court docket setting apart the proceedings of this Honourable Court docket instantly following after the Ruling delivered on eighth March, 2006 on this swimsuit.
3. An order of Court docket Expunging from the Courts Data Guide the mentioned proceedings instantly following after the Ruling of eighth March, 2006 on this swimsuit.
4. On granting of prayers 1, 2, and three above for an order of Court docket fixing the movement on Discover dated 25th day of February, 2005 and filed on 2nd March, 2005 for listening to on a date handy to and agreed by Counsel for all events and the Honourable Court docket.
AND for such additional Order/or different orders as this Honourable Court docket could deem match to make within the circumstance.
AND FURTHER TAKE NOTICE

that the grounds on which this software is made is as follows:
(a) No movement was mounted for listening to on the eighth day of March, 2006.
(b) eighth day of March, 2006 was mounted for the Ruling of the Court docket in a movement for keep of continuing introduced by the first defendant/applicant herein.
(c) eighth day of March, 2006 was not mounted for Ruling and continuation.
(d) A date mounted for Ruling shouldn’t be a date for listening to of a movement.
(e) A date mounted for movement shouldn’t be a date for listening to of the case.
(f) Justice should not solely be performed however should manifestly and undoubtedly be seen to have been performed.
(g) Listening to arguments on a movement not mounted for that day is overreaching, prejudicial and opposite to the foundations of pure justice.
(h) The Honourable Court docket had no jurisdiction to listen to plaintiffs movement dated 25th February, 2005 and filed on 2nd March, 2005 on eighth March, 2006.

The appliance was verified on a sworn affidavit of Nwolisa Agusiobo, Secretary to the appellant to wit:
1. By advantage of my workplace, I’m conversant with the info of this case and have the permission and consent of each H.R.M. Igwe Achebe and his

Counsel E. Obiesie Ofodile to swear to this affidavit.
2. On 21st February, 2006, after Counsel for the first defendant/applicant E. Obiesie Ofodile had moved a movement for keep of proceedings pending enchantment and arguments taken, the Honourable Court docket adjourned the matter to the eighth day of March, 2006 for Ruling.
3. On eighth day of March, 2006 the Honourable Court docket delivered its Ruling the place upon Counsel for plaintiff/respondent knowledgeable Court docket that he had a movement dated 25th February, 2005 filed on 2nd March, 2005 and was prepared to maneuver similar.
4. Regardless of objections by Counsel for 1st defendant that the process was fallacious the Court docket allowed plaintiff to maneuver the movement.
5. The mentioned movement was not mounted for listening to on the eighth day of March, 2006.
6. A date mounted for Ruling shouldn’t be a date mounted for listening to of a movement.
7. Afortiori, a date mounted for movement shouldn’t be a date for listening to.
8. By permitting the movement to be moved the first defendant/applicant has been prejudiced.
9. The Honourable Court docket had no jurisdiction to listen to a movement which was not mounted for listening to on that day. The mentioned movement had earlier been deserted, stayed

and put within the cooler by Counsel for the plaintiff Dr. J.O. Ibik, SAN.
10. Counsel for 1st defendant/applicant was taken abruptly.
11. Justice should not solely be performed however should manifestly and undoubtedly be seen to have been performed.
12. Until the mentioned proceedings whereby plaintiffs Counsel was allowed to maneuver the movement dated 25th February, 2005 filed on 2nd March, 2005 is put aside and expunged from the document of Court docket the first defendant will proceed to undergo injustice.
13. The proceedings of this Honourable Court docket instantly after the Ruling of eighth March, 2006 is most prejudicial and detrimental to the first defendant/applicant.
14. E. Obiesie Ofodile of Counsel informs me in his workplace at 31D Awka Highway at Four Oclock on ninth March, 2006 and I verily consider him:
(a) That on the listening to of this movement he would depend on the Courts data and all processes within the Courts possession.
(b) That the process adopted/adopted by the Honourable Court docket on eighth March, 2006 was improper and opposite to the Guidelines.
15. I do solemnly sincerely declare that I make this solemn declaration rigorously

believing the identical to be true and by advantage of the provisions of the Oaths Act, 1990.

This Court docket is sure by the entries made by the discovered trial Decide in regard to the proceedings of 20th March, 2006. SeeJulius Berger (Nig) Ltd. vs. Femi (1993) 5 NWLR (Pt. 295) 612 at 619-620. This Court docket will act solely on the printed and licensed true copies of the document of enchantment. See N.P.M. Co. Ltd. vs. CNDETS. S. (1971) 1 NMLR 223 at 226; Omohodion vs. C.O.P. (1961) Four All NLR 594; Q vs. Ogodo (1961) Four All NLR 700 and Q vs. Isa (1961) Four All NLR 668.
In Enekebe vs. Enekebe (1964) NMLR 42, Bairamian, JSC held at web page 46 that, Within the instances on discretion which I’ve seen, the trial Court docket goes by the fabric offered to it, and the Court docket of Enchantment goes by the fabric within the document
I’ve intentionally reproduced the proceedings carried out within the Court docket under on 20th March, 2006, I’ve underlined the oral submissions of Dr. J.O. Ibik, SAN of discovered silk that represented the first respondent within the Court docket under. I can’t see at what stage of the proceedings Dr. Ibik, SAN notified the Court docket and his discovered colleagues that he supposed to

withdraw any movement that was pending earlier than the Court docket, however, the discovered trial Decide insisted and proceeded to listen to argument on the movement. I can’t additionally see the place the discovered silk and the discovered trial Decide did in what E.O. Ofodile, Esq. of Counsel to the appellant is ascribing to them from the printed document. I’ve additionally underlined the oral argument of E.O. Ofodile, Esq. relating to the movement for interlocutory injunction that was pending and moved by Dr. Ibik, SAN and opposed by J.H.C. Okolo, SAN representing the 2nd respondent on 20th March, 2006. At no time in the midst of listening to the applying for interlocutory injunction did the pendency of the movement dated and filed on 15th March, 2006 crop up because the document of enchantment present. See Gonzee (Nig.) Ltd vs. NERDC (2005) All FWLR (Pt. 274) 235 the place Edozie, JSC held at web page 245 Paragraphs G-F to wit:
The Court docket and the events are sure by the document of enchantment as licensed and is presumed appropriate until the opposite is proved. A celebration who challenges the correctness of document of proceedings should swear to an affidavit setting out the info or aside of the continuing

omitted or wrongly said within the document. Such affidavit have to be served on the Decide or registry of the Court docket involved: See Ehikeoye vs. C.O.P. (1992) Four NWLR (Pt. 233) 57; Sommer vs. Federal Housing Authority (1992) 1 NWLR (Pt. 219) 548; Texaco Panama Inc. vs. Shell PDC Nig. Ltd. (2002) FWLR (Pt. 96) 579; (2002) 5 NWLR (Pt. 759) 209 at 234.
The mere assertion in his transient of argument by discovered Counsel for the plaintiff that the related reveals had been earlier than the Court docket under, on the materials time is inadequate to controvert the assertion of the Court docket under on the contrary. Discovered Counsel not being the registrar of the Court docket under who’s the custodian of the reveals, shouldn’t be able to say whether or not these reveals had been earlier than the Court docket under on the materials time. I’m, due to this fact, ready to agree with the assertion by the Court docket under that the reveals weren’t made obtainable to it regardless of its request for them. However the essential query is whether or not it was actually mandatory for the Court docket under to see these reveals earlier than reaching a call on the difficulty of evaluation of damages.

From all indications the movement was not listed for listening to on 20th

March, 2006. Neither did E.O. Ofodile, Esq. apply that the 2 purposes needs to be heard the identical day or at some other adjourned day however any of the discovered silk opposed the applying. There is no such thing as a ruling from the discovered trial Decide in that regard. The submissions of discovered Counsel within the briefs of argument won’t ever take the place of authorized proof. SeeYoye vs. Olubode (1974) 1 All NLR (Pt. 2) 118; Zein vs. Geidam (2004) All FWLR (Pt. 237) 457 at 480 Paragraph B and Obuoliu vs. Coker (1981) 5 SC 197.

The info and circumstances of a case ought to find out the authorities a discovered Counsel ought to cite to assist his argument in Court docket. SeeAdegoke Motors Nig. Ltd. vs. Adesanya (1989) Three NWLR (Pt.109) 250 at 265.

It is vitally fallacious and this will likely represent knowledgeable misconduct to assault the choice or character of a discovered trial Decide on a difficulty not argued nor canvassed within the Court docket under on enchantment. See Balogun vs. Obisanya & Anor. (1956) 1 FSC 22 at 23 and Atanda & Ors. vs. Ajani & Ors. (1989) 2 NSCC 511 at 526. I resolve difficulty (i) towards the appellant.

ISSUES (II)-(IV):
In Hanbury and Maudsley Trendy Fairness,

1976 Version by Harold Greville Hanbury seems the next assertion on the character of an interlocutory injunction pending the willpower of the substantive swimsuit at pages 78 to 79 to wit:
The jurisdiction is said to not probably the most simply technique of defending established rights, however to probably the most handy technique of preserving the established order whereas rights are established. Interlocutory injunctions could also be prohibitory, necessary, or quia timet. Usually such an injunction stays in drive till the trial of the motion, however an interim injunction could also be granted, which endures for some shorter specified interval. If the events consent, the interlocutory listening to could also be handled as a ultimate trial if the dispute is of regulation. However this won’t be doable if the dispute is of truth, as affidavit proof is unsuitable for such points.

The principal and elementary objective of an interlocutory injunction is to protect the established order whereas the rights of the events contesting the subject-matter are to be established after the info have been gone into in a full-blown trial. That’s when the discovered trial Decide may need rendered a call in favour

or towards any of the disputing events. In Snells Ideas of Fairness, 27th Version by The Hon. Sir. Robert Megarry, pages 636 to 637 additionally seems the next assertion on interlocutory injunctions pending the willpower of the substantive swimsuit to wit:
Interlocutory Injunctions:
1. Basic rules:- Although the proverbial delays of Lord Eldons chancellorship not exist, there may be nonetheless an inevitable lapse of time between the graduation of an motion and the trial. The damage being suffered by the plaintiff could be such that it might be unjust to make him wait till the trial for aid, and so in sure circumstances the Court docket will grant an injunction earlier than trial with the item of preserving issues in established order, or of facilitating the administration of justice on the trial; and in a correct case the plaintiff could even be given the entire of the aid which he would search on the trial. Equally, an injunction could also be granted pending an enchantment. The grant of interlocutory aid is at all times discretionary, and relies on the circumstances of every case. The next, nevertheless, are the extra essential issues.

The established order to be saved or maintained pending trial could be depending on the character of the subject material in dispute coupled with the type of damage that if an interlocutory injunction shouldn’t be granted could outcome to the detriment of the get together that utilized for the treatment by the point the rights of the events had been decided on the finish of the trial. In Akapo vs. Hakeem-Habeeb (1992) NWLR (Pt. 247) 266, Karibi-Whyte, JSC held the place the dispute concerned the rights of a household head within the administration of household property at pages 291 to 292 as follows:
The established order which the Court docket can by the granting of injunction preserve, is the restoration of the events to the place they had been earlier than April, 1985, when respondents with drive took over the administration and management of the places of work and property of the Ojora Chieftaincy household, hitherto below the management and administration of appellants and the Household Council.

The discovered trial Decide has to contemplate whether or not the motion of the get together that utilized for an interlocutory injunction is frivolous, or there are triable points in granting or refusing an software for an interlocutory injunction.

In Adenuga vs. Odumeru (2003) FWLR (Pt.158) 1288 at web page 1304 Paragraph H to web page 1305 Paragraphs A-G to wit:
In an software for an interlocutory injunction, the plaintiff should present an existence of his proper which must be protected within the interim. He should on the similar time fulfill the Court docket that there’s a actual query to be tried within the substantive swimsuit: Egbe vs. Onogun (1972) 1 All NLR 95 at 98. This doesn’t require the Court docket to find out the benefit of the plaintiffs entitlement to the declare. Nevertheless it locations on the plaintiff an preliminary burden. It’s the burden of displaying that there’s a severe query to be tried upon the affidavit proof (as nicely with averments within the assertion of declare, if any has been filed): See Obeya Memorial Hospital vs. Legal professional-Basic of the Federation (1987) Three NWLR (Pt.60) 325.
It’s mandatory to emphasise that it’s of significant significance for a plaintiff searching for an interlocutory injunction to adduce sufficiently exact factual affidavit proof to fulfill the Court docket that his declare for a everlasting injunction on the trial shouldn’t be frivolous; or at any price, primarily based

on the substantive declare to provide affidavit proof to fulfill the Court docket in justification of his software for an interlocutory injunction to take care of the established order. It’s only when this has been performed that it’s going to grow to be mandatory for the Court docket to proceed additional with the applying to contemplate the steadiness of comfort. In any other case the applying should be refused on the level the Court docket shouldn’t be so happy. That is clear from the remark made by Lord Diplock in American Cyanamid Co. vs. Ethicon Ltd. (1975) 1 All E.R. 504 at 510 as to what needs to be the method in contemplating an software for an interlocutory injunction.
He mentioned inter alia:
It’s no a part of the Courts operate at this stage of the litigation to attempt to resolve conflicts of proof of affidavit as to info on which the claims of both get together could finally rely to not resolve troublesome questions of regulation which name for detailed argument and mature issues. These are issues to be handled on the trial so until the fabric obtainable to the Court docket on the listening to of the applying for an interlocutory injunction fails to reveal that the

plaintiff has any actual prospect of succeeding in his declare for a everlasting injunction on the trial, the Court docket ought to go on to contemplate whether or not the steadiness of comfort lies in favour of granting or refusing the interlocutory aid that’s sought.
It appears to me that even when there had been no trigger for me to remark adversely on the complaints laid within the grounds of enchantment and the problems set down for willpower, this enchantment stood no likelihood of succeeding. The probability {that a} plaintiff would have succeeded in establishing his proper to an injunction if the motion had gone to trial is an element to be introduced into the steadiness by the Decide in weighing the dangers that injustice could outcome from his deciding the applying for an interlocutory injunction a method slightly than the opposite: See NWL Ltd. vs. Woods (1979) Three All ER 614 at 626.
Financial advantages a celebration has been deriving from the property earlier than the alleged interference or invasion could also be thought-about in granting or refusing an software for interlocutory injunction pending the willpower of the rights of the events. See Adesina vs. Arowolo (2005) FWLR (Pt. 245) 1123 at

1140-1141 Paragraphs F-G.

The info in dispute are to be garnered from the pleadings filed and exchanged by the events within the Court docket under. The case of Chief A.C.I. Mbanefo within the Court docket under is that he was duly and correctly put in and initiated into the vacant seat of Odu Osodi of Onitsha in 1994 and is entitled to occupy that conventional workplace and maintain the standard rank of Ndichieume and Ndichie Ukpo for all times in accordance with the Onitsha Native Legislation and Customized therefore the Chief sought the declarative reliefs within the Court docket under coupled with perpetual injunction in Paragraph (d) of his declare. If on the finish of the trial the Chief is ready to show his declare I feel he could be entitled to the perpetual injunction claimed, if not the Court docket under would dismiss.

In Hanbury and Maudsley Trendy Fairness (ante), web page 69 the discovered creator defined the which means of perpetual injunction as follows:
Perpetual and Interlocutory Injunctions:
Prohibitory or necessary injunctions could also be perpetual or interlocutory. Perpetual doesn’t imply essentially that the impact of the order should endure for

ever; it implies that the order will lastly settle the current dispute between the events, being made as the results of an abnormal motion, the Court docket having heard within the abnormal approach the arguments on each side. However a plaintiff could not at all times have the ability to await the motion to come back on within the regular course; it could be that irreparable harm will probably be performed to him if the defendant shouldn’t be instantly restrained. If such is the case, the plaintiff will serve on him a discover that on the subsequent movement day his Counsel will apply to the Court docket for an injunction. The service of this discover will allow the defendants Counsel additionally to be heard, if he needs, however the listening to won’t be a ultimate choice on the deserves of the case. If the plaintiffs affidavit has made out a ample case, the Decide will grant an interlocutory injunction, which is efficient solely till the trial of the motion.
Once more in Snells Ideas of Fairness (supra) web page 626 seems the next write up on perpetual injunction:
Perpetual Injunctions:
1. Damages an inadequate treatment: The very first precept of injunction regulation is that

prima facie you don’t get hold of injunctions to restrain actionable wrongs for which damages are the right treatment. Thus no injunction will probably be granted the place an unlawful act has been performed prior to now however there isn’t a intention of repeating it, or the place the damage might be adequately compensated by cash. However an injunction could also be granted if an award of damages could be ineffective, e.g. as a result of the defendant is a pauper; and plenty of wrongs, akin to persevering with nuisance or infringements of commerce marks, demand extra enough aid than cash. Furthermore, a celebration to a contract has a proper to its efficiency and never merely to compensation for breach, and therefore an injunction will probably be granted to restrain breaches of detrimental contracts. If, nevertheless, the events have specified a sum as liquidated damages for breach of a detrimental contract, the plaintiff can’t each get well the sum and declare an injunction.

The plaintiff based his reason for motion on the Native Legislation and Customized in Onitsha, Anambra State. In The Queen: Exparte Adebo vs. Governor-In-Council, Western Area (1962) 1 All NLR 917, Charles, J., held within the Excessive Court docket of Justice of the defunct Western Nigeria

Area in a deposition of a Chief by the Governor-In-Council at pages 923 to 924 as follows:
An workplace shouldn’t be within the strict sense itself a proper however it could be the topic of such a proper. Thus, an individual could have a proper (within the strict sense) to be appointed to it or to carry it for a time period. It might be even have such rights appurtenant to it, such for granted to wage. In as far as deprivation of the workplace extinguishes such rights, a call to deprive is a willpower affecting the rights of the workplace holder. Below the Chiefs Legislation a acknowledged Chief has a proper within the strict sense to carry workplace till he’s disadvantaged of it in accordance with Part 22, that’s till the Governor-in-Council decides to depose him after being happy that any of the required grounds exist. The satisfaction of the Governor-in-Council that such a floor exists is a situation precedent to the train of the facility of deposition, in order that the workplace of Chief shouldn’t be held on the will of the Governor-in-Council however is one which the holder is entitled to retain till the Governor-in-Council is happy that one of many specified grounds for deposition exist.

Additional, it’s a matter of judicial data I feel, that, as on this case, the workplace of Chief usually, if not invariably, has appurtenant to it a proper to wage and different rights. As Part 22 doesn’t restrict the facility of deposition to Chieftaincy places of work which do not need appurtenant rights, if there are any such places of work, it essentially confers an influence to make a willpower which impacts the fitting or rights, within the strict sense, of a person.
As regards to the second query, whether or not the Governor-in-Council is sure to behave judicially in making a willpower below Part 22, you will need to acknowledge that there’s a presumption that when the Legislature confers an influence on an authority to make a willpower affecting a person in his property or individual, it intends that the facility shall be exercised judicially in accordance with the rule of pure justice that the person affected have to be given an enough alternative to be heard. That proposition was clearly acknowledged by the Privy Council in Smith vs. The Queen, (1878), Three App. Cas. 614. In that case the Governor of Queensland had presupposed to cancel a lease below a statutory

energy which offered; If at any time throughout the foreign money of a lease it shall be proved to the satisfaction of the Commissioner that the lessee had deserted his choice and failed in regard to the efficiency of the situations of residence throughout a interval of six months, it shall be lawful for the Governor to declare the lease completely forfeited and vacated.
The Privy Council allowed an enchantment from an order of ejectment by the Supreme Court docket of Queensland as a result of the forfeiture on which that order was primarily based had not been lawfully made in that the Fee had not happy himself in a judicial method of the grounds for it, since he had not given the lessee an enough alternative to be heard.

Native Legislation and Customized acknowledges the significance of chiefs or conventional rulers within the society coupled with the rights and privileges which will connect to their places of work.
In Nigerian Land Legislation by B.O. Nwabueze, 1982 Reprint, the discovered creator wrote at pages 149 to 152 in regards to the significance of a Chief inside a Group as follows:
Because the bodily embodiment of his neighborhood, village or household, it’s clear

that the Chief should occupy a central place in the entire system of communal tenure. The establishment of Chieftaincy is slightly a novel one, so distinctive certainly that any try to explain it by reference to analogous English establishments is sure to mislead. Thus within the celebrated however cautious phrases of Rayner, C.J., which have been repeated and permitted occasions with out quantity within the instances, the chief is known as being to some extent within the place of a trustees, and as such holds the land for using the neighborhood or household. There may be nothing sacrosanct concerning the concept of trusteeship neither is it essentially a time period of artwork, in order that the outline of the Chiefs place by analogy to it is probably not so terribly objectionable, as soon as the important variations between him and a trustee strictly so-called are clearly understood. Maybe probably the most elementary of those variations is that whereas a trustee of land has the authorized title vested in him and is due to this fact the authorized proprietor of it, the authorized title to communal land is vested within the quasi-corporation, the neighborhood, village or household, and never within the chief individually. To explain him as an

proprietor, even in a free sense, is due to this fact deceptive. This isn’t to say, nevertheless, that the place of the Chief is merely one among mere honour or dignity. In Adanji vs. Hunvoo (1908) 1 NLR 74, the plaintiff who had sued to determine his proper to the Chieftaincy of the Fiyento of Badagry was non-suited on the bottom that the declare associated solely to a place of mere honour or dignity, and didn’t increase any difficulty of a authorized or equitable proper. This choice, with respect, reveals a lack of know-how of the true significance of Chieftaincy in Nigeria. It’s a place which by its personal inherent drive carries sure rights and powers below Customary Legislation, notably in relation to land a truth which distinguishes the declare in Adanji vs. Hunvoo from that within the English case of Cowley vs. Cowley (1901) A.C. 450 upon which the choice purports to have been primarily based. Fortuitously, the Courts have in subsequent instances proven an accurate appreciation of the true significance of Chieftainship below Customary Legislation as a place importing sure rights and powers. Thus in Ademola vs. Thomas (1946) 12 WACA 81 the plaintiffs claimed a declaration that the

set up by the primary and second defendants of the third and fourth defendants as Oluwo and Balogun of Iporo respectively was opposite to Customary Legislation, and an injunction restraining them from appearing in these places of work. It was argued that the Court docket may solely have jurisdiction in a swimsuit respecting Chieftaincy when the declare was for rights in property attaching to the Chieftaincy, the difficulty of title being merely incidental, and never when the declare was for a declaration of proper to a title and there was no declare for consequential reliefs in relation to pecuniary rights connected thereto. In rejecting this argument, the WACA noticed:
There is no such thing as a query on this case of the titles claimed by the appellants being naked titles of honour or dignity akin to was the case in Cowley vs. Cowley nor of it being unsure whether or not these titles indicate some rights in property and we don’t assume that this Court docket could be doing justice to the respondents declare had been it to carry that, as a result of there may be within the writ of summons no particular declare in respect of the property rights attaching to the titles in query, due to this fact the declare was in respect of mere

title to honour or dignity and, as such, outdoors the jurisdiction of the Supreme Court docket.
So additionally in Owa-Ale of Ikare vs. The Olukare of Ikare the place each the Supreme Court docket and the WACA declined jurisdiction on the authority of Adanji vs. Hunvoo to entertain a declare by the plaintiff to the headship of Ikaree and to the unique proper to put on the crown and to take pleasure in all the opposite privileges attaching thereto, on the bottom that that declare was no multiple to determine title to a place of mere priority, the Privy Council held that, aside from the declare of unique proper to put on the crown which isn’t a acknowledged authorized proper, the exact nature of the declare to the headship of Ikare ought to have been investigated with a view to discovering what rights, powers and privileges, if any, connect to it, and that because it was not, the case have to be retried.
It has been urged that the rights and powers inherent within the place of a chief are merely these of a caretaker. Whereas it’s true that the chief shouldn’t be a trustee/proprietor of the land of his neighborhood within the strict sense by which that time period is often understood, it’s equally not true

that he’s solely a caretaker. In a case the place a member of a household who was not its head acted as caretaker of the household property, Kingdon, C.J., noticed that maybe the time period caretaker is strictly talking, a misnomer, however it’s a time period which is often used on this nation to imply the member of the household, not essentially the top, who acts as agent for the household in conducting its affairs. In strictness a caretaker is just a licence with nothing just like the amplitude of the rights and powers possessed by the chief over communal land. Apart from the Courts have generally distinguished between the rights of the chief and an abnormal member who acts as caretaker of communal land, casting upon the later the responsibility to account to every particular person member for any earnings from the land whereas relieving the previous from it. Nor can the chief be regarded, merely as an agent of his neighborhood, village or household, for, as will presently be proven, his authority is inherent in his workplace and doesn’t derive from any company or mandate given by the members; the members are due to this fact fairly incompetent to abrogate or limit the chiefs rights and powers in

relation to communal land with out his consent. The true place seems to be that, because the bodily alter ego of his neighborhood, village or household, the chief is the right individual to train the possession rights of the neighborhood, village or household, topic to the person rights of the members. He represents the household with respect to the train of those rights. As soon as the title of possession is clearly separated from the train of the rights and powers to which it provides rise, the place of the chief can then be perceived in its true perspective; the previous is vested in the neighborhood, village or household as a quasi-corporation whereas the latter belong to the chief. Thus, in Onitola vs. Bello the plaintiff was granted a declaration that, as head of the Onisemo Household in Lagos, he was the individual entitled to the administration of all of the properties of the household, to the possession of all such properties and of all monuments of title relating thereto. If a label is required for the place, it’s that of a supervisor or director which most closely fits it, although even this isn’t definitive sufficient nor altogether correct. Plainly, mentioned Bairamian, JSC, delivering

the judgment of the Supreme Court docket in Akano vs. Ajuwon in frequent parlance folks converse of the land of X, the top of the household; and if the family members themselves accomplish that, they can’t complain if strangers do. From a attorneys viewpoint, it is probably not exact; however a lawyer, too, would discover it laborious to find an English time period by which to explain the place of the household head. In strictness he’s not the proprietor; some assume it’s unwise to name him the trustee and import English concepts of trusts; maybe supervisor is nearest however this time period doesn’t altogether match both. The reality is that the place of the chief in relation to communal land is a pecuniary distinctive one, a uniqueness which is borne out by the truth that with out the energetic participation of the chief, no outright alienation of the land might be validly made, however that every one the opposite members desired and permitted of it. It follows, noticed Harragin, C.J., in Agbloe vs. Sapporo, that it’s fairly inconceivable for land to be legally transferred and authorized title given with out his consent. Certainly, whereas his consent suffices to validate a grant of

occupancy proper within the case of an outright grant of the land itself it isn’t sufficient for him merely to consent; he have to be a celebration to the grant or conveyance for it to be efficient to cross the title of possession.
Part 68(1), (2) and 70 of the Proof Act, 2011 gives but the significance of conventional rulers, chiefs or conventional title holders inside their communities by offering as follows:
68(1) When the Court docket has to type an opinion upon some extent of overseas regulation, Customary Legislation or Customized, or of Science or Artwork, or as to identification of handwriting or finger impressions, the opinions upon that time of individuals specifically expert in such overseas regulation, Customary Legislation or customized, or science or artwork, or in questions as to identification of handwriting or finger impressions, are admissible.
(2) Individuals so specifically expert as talked about in Subsection (1) of this part are referred to as consultants.
70. In deciding questions of Customary Legislation and customized, the opinions of conventional rulers, chiefs or different individuals having particular data of the Customary Legislation and customized and any e-book or manuscript acknowledged as authorized authority by folks

indigenous to the locality by which such regulation or customized applies, are admissible.

In my humble opinion, whether or not the choice, appointment or set up of the respondent below Onitsha Native Legislation and Customized was proper or fallacious that must be decided after the discovered trial Decide has heard the case to completion and rendered a call both in favour of the respondent or the appellant because the case could also be. As an interim measure the respondent was entitled to an interlocutory injunction so that the established order ante could also be maintained pending the willpower of the rights of the events.

No citizen is to take legal guidelines into their fingers. Courts of Justice don’t encourage self-help. Grievances needs to be submitted to the Courts of regulation and fairness for willpower. InThe Navy Governor of Lagos State & Ors. vs. Chief Ojukwu & Ors. (1986) All NLR 233, Oputa, JSC held at web page 247 as follows:
I’ve had the privilege of a preview of the lead causes for ruling simply delivered by my discovered brother, Eso, JSC. I’m in full settlement with him that the candidates prayer for a keep of execution needs to be refused. I additionally

agree along with his sound reasoning and legitimate conclusions. However as the problems raised on this software have an effect on radically and essentially the idea and apply of the Rule of Legislation in our nation; the Safety of the Particular person Citizen from an Abuse of Govt Energy; and the Position of our Courts within the Preservation of Legislation and Order in our society; it’s in my humble view, mandatory that the fullest expression be given to the views of particular person Justices of this Court docket at the very least to additional emphasize the factors so ably made within the lead Causes for Ruling.
Admittedly, the nation is now ruled by navy regime however it’s to the exterior credit score of all of the Navy Governments in Nigeria on the whole and the current navy regime specifically, that every pledged itself to look at and to be sure by the fundamental rules of the rule of regulation. That is extremely commendable for the place the rule of regulation is compelled to abdicate the rule of drive is routinely enthroned. And for this reason, and the place, sure options of this software are slightly disturbing.

In my humble opinion, the discovered trial Decide exercised a judicial discretion to grant the interlocutory

order of injunction pending the willpower of the substantive swimsuit to satisfy the justice of the case. The facility the Court docket of Enchantment could train upon the listening to of an enchantment is circumscribed by the necessities of the provisions of Order Four Guidelines 9(1)-(5) of the Court docket of Enchantment Guidelines, 2011 which gives as follows:
9(1) On the listening to of any enchantment, the Court docket could, if it thinks match, make any such orders as may very well be made in pursuance of an software for a brand new trial or to put aside a verdict, discovering or judgment of the Court docket under.
(2) The Court docket shall not be sure to order a brand new trial on the bottom of misdirection, or of the improper admission or rejection of proof, until within the opinion of the Court docket some substantial fallacious or miscarriage of justice has been thereby occasioned.
(3) A brand new trial could also be ordered on any query with out interfering with the discovering or choice on some other query; and if it seems to the Court docket that any such fallacious or miscarriage of justice as is talked about in Paragraph (2) of this Rule impacts half solely of the matter in controversy or one or some solely of the events, the Court docket could order a brand new trial as to

the get together solely, or as to that get together or these events solely, and provides ultimate judgment as to the rest.
(4) In any case the place, the Court docket has energy to order a brand new trial on the bottom that damages awarded by the Court docket under are extreme or insufficient, the Court docket could in lieu of ordering a brand new trial:-
(a) Substitute for the sum awarded by the Court docket under such sum as seems to the Court docket to be correct;
(b) Cut back or enhance the sum awarded by the Court docket under by such quantity as seems within the Court docket to be correct in respect of any distinct head of damages erroneously included or excluded from the sum so awarded.
However besides as aforesaid, the Court docket shall not have energy to scale back or enhance the damages awarded by the Court docket under.
(5) A brand new trial shall not be ordered by motive of the ruling of any choose of the Court docket under {that a} doc is sufficiently stamped or doesn’t require to be stamped.

The onus of displaying that the choice of the discovered trial Decide in granting the Interlocutory Injunction pending the willpower of the substantive swimsuit was considerably fallacious or led to a miscarriage of justice for this Court docket to

intrude with the choice has not been discharged by the appellant.

I resolve points (ii)-(iv) towards the appellant.

My humble opinion is that there isn’t a benefit on this enchantment which I hereby dismiss. I award N50,000.00 value to the first respondent.

RITA NOSAKHARE PEMU, J.C.A.: I learn prior to now, the lead judgment simply delivered by my brother, Hon. Justice JOSEPH TINE TUR, JCA.

I agree along with his reasoning and opinion.

I additionally dismiss the enchantment. I abide by the consequential order made as to prices.

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I had the chance of studying prior to now the lead judgment of my discovered brother, HON. JUSTICE JOSEPH TINE TUR, JCA. I agree along with his conclusion that there isn’t a benefit on this enchantment. I too dismiss the enchantment. I abide by the order for prices made therein.

Appearances

E.O. Ofodile, Esq. with him, Chidu Chigbo, Esq. For Appellant

AND

Dr. J.O. Ibik, SAN with him, O.J. Ibik, Esq., Okay.I. Obianzor, Esq. and C.M. Ejeh, Esq. for the first Respondent.

E.A. Nwora, Esq. for the 2nd Respondent. For Respondent