IHEANACHO EKPAHURU IDEOZU & ORS V CHIEF FRANK OKPO OCHOMA-2006

IHEANACHO EKPAHURU IDEOZU & ORS V CHIEF FRANK OKPO OCHOMA

(2006) LCN/3560(SC)

In the Supreme Court of Nigeria

Friday, February 17, 2006


Case Number:SC. 218/2001

 

JUSTICES:

SYLVESTER UMARU ONU, JUSTICE SUPREME COURT

ALOYSIUS IYORGYER KATSINA-ALU, JUSTICE, SUPREME COURT

, NIKI TOBI JUSTICE, SUPREME COURT

GEORGE ADESOLA OGUNTADE JUSTICE, SUPREME COURT

MAHMUD MOHAMMED, JUSTICE, SUPREME COURT

BETWEEN

APPELLANTS

1. IHEANACHO EKPAHURU IDEOZU

2. CHIDI JEROME AGWO

3. CHIEF ROBERT WEYE

4. ONYEMATARA EWOH

5. ELDER MATTHEW(For themselves and on behalf of Umudele Family of Ahoada)

AND

RESPONDENTS

1. CHIEF FRANK OKPO OCHOMA

2. MR. DAVID AZUBUIKE OCHOMA(for themselves and on behalf of Umu-AbubaogeleFamily of Ahoada)

3. ELDER FRED IDE

4. MR. WILSON EYI

5. MR. NDUBUISI JOHNSON(For themselves and on behalf of Umu-Obusenye Family of Ahoada)

6. ELDER COUPLE AMAKIRI

7. ELDER IDOKE UDE8. CHIEF FELIX IGWE(For themselves and on behalf of Umu-digwe Family of Ahoada)

RATIO

APPEAL : when a court of appeal can interfere with the finding of fact of a trial court

“It is the law that except under some stated conditions a Court of Appeal will not interfere with a discretion or finding of fact by a trial court. But where the discretion of the trial court was not judicially exercised or where the finding of fact was perverse, a Court of Appeal will definitely interfere.” Per ONU, J.S.C.

 INTERLOCUTORY INJUNCTION: Purpose of an Interlocutory injunction

“In Ajewole v. Adetimo (1996) 2 NWLR (Pt.431) 391, this court held that when a court is asked to restrain a party from doing an act pending the decision in a matter before it, but the act has been done, no order to restrain will be made. This is so because, what is sought to be prevented had happened. In other words, an interlocutory injunction is not a remedy for an act which has already been carried out. In Alon v. Dandrill Nigeria Ltd. (1997) 8 NWLR (Pt.517) 495, it was held that the main purpose of an interlocutory injunction is to preserve the res or subject matter of the litigation from destruction pending the determination of the matter. It is to maintain the status quo pending the determination of the matter. Where an action sought to be restrained has already been completed, the equitable remedy of interlocutory injunction will no longer be available to an applicant”. Per Tobi J.S.C.

 INJUNCTION: When injunction will be granted for completed acts

“Once the act or conduct is completed, the relief of interlocutory injunction is totally spent as it has no life to attack or tackle the completed act or conduct. The only remedy available in respect of a completed act or conduct is perpetual injunction, which will last in perpetuity.” Per Tobi, J.S.C. 

INTERLOCUTORY INJUNCTION: Whether court can grant injunction for completed acts

“It is now settled law that an interlocutory injunction is no more a remedy for an act which had already been carried out.” Per Oguntade, J.S.C.

INJUNCTION: When court will not grant injunction

“When a court is asked to restrain a party from doing an act pending a decision in a matter before it, but the act has been done, no order to restrain will be made because what is sought to be restrained had been completed.” per Oguntade J.S.C. 

G.A. OGUNTADE, JSC: (Delivering the Judgment of the court) This is an appeal from the judgment of the court below in which it allowed an appeal from the ruling of the High Court in suit No. AHC/22/91 which is still pending before the said High Court of Ahoada Judicial Division of Rivers State. The appellants were the plaintiffs. By their amended writ of summons issued on 3rd June, 1997 against the respondents (as defendants) they claimed the following reliefs: “1. A declaration by Ekpeye native law and custom the Umudele Family of Ahoada is the head/founding family of NYE-NWE-ELE (Landlord) of Ahoada. 2.  A declaration that the Umudele Family by virtue of its status as the Nye-Nwe-Ele Family of Ahoada has the exclusive and sacred custody of the Main OWOR-ELE-EHUDA. 3.  A declaration that under Ekpeye native law and custom of inheritance, it is only members of the Umdele Family being the head/founding Family of Ahoada that can bear the title of NYE-NWE-ELE or Landlord/Traditional Ruler of Ahoada and who can possess the main OWOR-ELE EHUDA and conduct all communal sacrifices for Ahoada. 4.  A declaration that by virtue of the Ekpeye customary law of inheritance, the following members of Umudele Family, namely Eyele Ele, Madu Ele, Ozogbe, Nwogwo, Usuma, Imo (Ideozu, Elder Michael Aliegbe, were recognized, lived, and died as the Nye-Nwe-Eles/Landlord/Traditional rulers of Ahoada. 5.  A declaration the defendants not being the members of the Umudele Family cannot bear the title of NYE-NWE-ELE or hold the main OWOR-ELE EHUDA or conduct communal sacrifices for Ahoada. 6.  A declaration that the purported certificate of conferment of the title of Nyemoji-Owhor-Ehuda dated 28/12/81 purportedly as a conferment of the title of Nye-Nwe-Ele of Ahoada on the 1st Defendant by HRH R.O. Robinson Eze Ekpeye Logbo is null and void. PAGE| 2 7.  A declaration that the purported judgment or verdict of the Eze Ekpyeye Logbo in Council dated 8/3/90 adjudging the 1st and 2nd Defendants family of Abubogle as the Nye-Nwe-Ele of Ahoada and therefore entitled to hold the main Owor-Ele Ehuda is null and void. 8.  An order of permanent injunction restraining the 1st defendant from holding himself out or howsoever parading himself as the Nye-Nwe-Ele of Ahoada Community. 9.  An Order of permanent injunction restraining all the defendants, by themselves, their servants, agents, privies or howsoever from interfering with the plaintiffs’ Umudele Family right as the Nye-Nwe-Ele Family of Ahoada, as the exclusive possessor of the Main Owhor-Ele Ehuda and in its conduct of communal sacrifices for Ahoada Community.” The parties filed and exchanged pleadings and ordinarily the suit should have proceeded to a hearing but on 10-1—98, the plaintiffs as applicants filed an application praying for the following: “(1) An order of interlocutory injunction restraining the 1st defendant by his agents, servants, privies or howsoever from acting, holding himself out or howsoever parading himself as the Nye-Nwe-Ele of Ahoada Community until the determination of this suit. (2)  An order of interlocutory injunction restraining the defendants by themselves, their agents, servants privies or howsoever from entering into the premises where the Ele Ehuda Shrine is situated in Odiemelu Quarters of Ahoada for whatsoever purposes until the determination of this suit. (3)  And for such further order or orders as this Honourable Court may deem fit to make in the circumstance.” The plaintiffs as applicants filed an affidavit in support of the application. The defendants filed a counter-affidavit to which was annexed a certificate of conferment. This elicited from the plaintiffs a further affidavit. In reaction the defendants filed a further counter-affidavit. The application was before Charles-Granville J. Parties having extensively argued the application, ruling was on 13-3-2000 delivered thereon. In the ruling, the trial judge concluded as follows at page 90 of the record:      “I shall therefore exercise my discretion in favour of the Plaintiff/Applicants by granting the orders sought. Accordingly, I hereby make (1)  An order of interlocutory injunction restraining the 1st Defendant by himself, his servants agents, privies or howsoever from acting, holding himself out or howsoever parading himself as the Nye-New-Ele of Ahoada Community until the determination of this suit. (2)  An order of interlocutory injunction restraining the Defen-dants by themselves, their Agents, servants, privies or howsoever from entering into the premises where the Ele-Ehuda Shrine is situate for whatever purposes until the determination of this suit. (3)  The Plaintiffs/Applicants are hereby ordered to enter into an undertaking before the Assistant Chief Registrar II of this court, to pay to the Defendant/Respondents, whatever damages the court may deem fit to make, if at the end, it is found that the order of interlocu-tory injunction was obtained frivolously, and ought not to have made.” PAGE| 3 The defendants/respondents who were restrained by the trial judge brought an appeal against the ruling. The appeal was heard at the Court of Appeal, Port-Harcourt Division (hereinafter referred to as the ‘court below’). On 22-02-01 the court below in its judgment allowed the appeal and set aside the ruling of the trial court. The plaintiffs were dissatisfied with the judgment of the court below and have come on a final appeal before this Court. In their appellants’ brief filed, the issues for determination in the appeal were stated to be these: “(1) Whether the lower court was justified in law to have interfered with the discretion of the trial court by determining in favour of the Respondents at the interlocutory stage the substantive issue as to which of the parties to the suit produces the Nye-Nwe-Ele of Ahoada when the issue is still pending before the trial court for determination. (2) Whether the lower court misconceived the basis of the appellants application before the lower court and also the order made by the trial judge and came to a wrong conclusion that the order has affected third parties and disrupted the traditional business of Ahoada community.” The respondents’ counsel in his brief elected to adopt the issues for determination as formulated by the appellants. The basis upon which the court below reversed the ruling of the trial court was that a court of law could not restrain a party from doing an act which has been done or completed. At pages 178-179 of the record of proceedings the court below in its judgment said –      “At this stage, I would like to reproduce paragraphs 6 and 7 of the amended writ of summons of the respondents filed on 3/6/97. They read as follows:- “6. A declaration that the purported certificate of conferment of the title of Nyemoji-Owhor-Ehuda dated 18/12/81 purported as a conferment of the title of the Nye-Nwe-Ele of Ahoada on the 1st defendant by HRH R. O. Robinson, Eze Ekpeye Logbo is null and void. 7.  A declaration that the purported judgment or verdict of the Eze Ekpeye Logbo in council dated 8/3/90 adjudging the 1st and 2nd defendant’s family of Abubaogele as the Nye-Nwe-Ele of Ahoada and therefore entitled to hold the Owor, Ele-Ehuda null and void.”      The action was filed on 7/1/91. It is therefore clear from the above paragraphs of the respondents’ amended writ of summons that ten years prior to the filing of this suit in 1991 and specifically since 1981 the 1st defendant had continued to act pursuant to Ekpeye native law and custom as the Nye-Nwe-Ele of Ahoada. It is also disclosed in the writ of summons and repeated in the statement of claim that there had been a native arbitration by a panel headed by the Supreme Head of Ekpeye Kingdom where it was adjudged that the 1st and 2nd defendants’ family of Abubogele was the Nye-Nwe-Ele of Ahoada and therefore entitled to hold the main Owor-Ele-Ehuda as against the plaintiffs’ family. It follows therefore restraining the 1st defendant from parading himself as the Nye-Nwe-Ele which he had so held out and so paraded himself for upwards of twenty years will not only be unjust but amounts to entering judgment for the respondents before leading evidence in the case, because the issue to be decided by the court is whether the recognition given to the 1st defendant as the Nye-Nwe-Ele of Ahoada was null and void. I think the better approach should have been to maintain the status quo and hold the recognition valid until it is set aside or nullified after hearing evidence from the parties.” PAGE| 4 And finally on the point the court below said in the same vein at page 181:      “This submission is misplaced because the 1st defendant having been duly recognized as the Nye-Nwe-Ele and had been acting as such since 1981, what the learned trial Judge restrained was clearly a completed act. In Ajewole V. Adetimo (supra) the Supreme Court held that when a court is asked to restrain a party from doing an act pending a decision in a matter before it, but the act has been done, no order to restrain will be made because what is sought to be restrained had been completed. See also the case of John Holt Nig. Ltd. V. Holts African Workers Union (supra) and Ayorinde V. Attorney-General of Oyo State (supra).” The appellant in his written brief before this Court has argued that it was wrong for the court below to have interfered with the exercise of discretion by the trial court. Counsel relied on Ngwu V. Onuigbo (1990) 13 NWLR (Pt. 636) 512, 523-524. It was further submitted that the court below erred by making in its judgment certain pronouncements, which affected the issues to be decided in the substantive matter. Counsel relied on Biocon Agrochemicals (Nig.) Ltd. & Ors. V. Kudu Holdings (Pty) Ltd. [2000] 15 NWLR (Pt. 611) 493 at 505 and 509. Olunloyo V. Adeniran [2001] 4 NWLR (Pt. 734) 699 at 708, (2001) 11 SCM 195 In granting the application the trial court in its ruling at pp. 88-89 of the record had reasoned thus:      “The applicants in this case have shown that there is a serious issue for trial to which learned counsel for the Respondents conceded. That issue which is the Res, is the claim of both parties to be entitled to bear the title of Nye-Nwe-Ele, and to posses the main Owhor and to sacrifice to Ele-Ehuda shrine. It is my view that this state of affairs calls for the courts intervention at this stage to prevent the doing of anything that will affect the smooth trial of the substantive suit.      One of the primary functions of the court is to see that law and order reigns supreme in the society and every decision of any court must be geared towards the maintenance of law and order, and not to cause blood shed or a state of anarchy in the society. In this case, the refusal to grant an order of interlocutory injunction and allowing the Respondents to continue parading the 1st Defendant as the Nye-Nwe-Ele and to perform sacrifices at the Ele Ehuda shrine which is the issue for determination by this court during the pendency of the suit will create a situation where there might be disturbances, as deposed to in Paragraph 20 of the Supporting Affidavit that such acts would inevitably lead to the break down of law and order in Ahoada, since the patience of members of the Applicant’s family are gradually wearing of.” Was the trial court right? And was the court below in error to have reasoned that an act, which had been completed, ought not be restrained? Before I answer these questions, I must express that the submission of appellants’ counsel that an appellate court does not make a practice of reversing the exercise of discretion by a court of trial is only partially true. It does not represent an absolute principle of law. PAGE| 5 In Enekebe V. Enekebe ]1964] 1 All N.L.R. 102, this Court per Bairamian JSC. quoted with approval a portion of the statement of Lord Simon in Blunt V. Blunt [1954] A. C. 517 at 526 where he said:      “If it can be shown that the court acted under a misapprehension of fact in that it either gave weight to irrelevant or unproved matters or omitted to take into account matters that are relevant, there would in my opinion be ground for an appeal. In such a case the exercise of discretion will have been exercised on wrong or inadequate materials but, as was recently pointed in this House in another connection in Charles Osenbon V. Johnston [1940] a.C. 130, 138:      ‘The appellate tribunal is not at liberty to substitute its own exercise of discretion for the discretion already exercised by the judge. In other words, appellate authorities ought not to reverse the order merely because they would themselves have exercised the original discretion, had it attached to them in a different way. But if the appellate tribunal reaches the clear conclusion that there has been a wrongful exercise of discretion in that no weight or no sufficient weight has been given to relevant considerations….. then the reversal of the order may be justified.” See also Solanke V. Ajibola [1968] 1 All NLR 46 at 51 and Saffieddine V. COP (1965) 1 All NLR 54. Earlier in this judgment, I set out the reliefs, which the plaintiffs/appellants sought by their claims against the defendants/respondents. The 6th and 7th claims made by the plaintiffs/appellants postulated that His Royal Highness R. O. Robinson Eze Ekpeye Logbo had conferred the title Nyemoji-Owhor-Ehuda on the 1st defendant and that a certificate of such conferment dated 8/12/81 was issued to the 1st defendant. It was also made manifest that a judgment or verdict of Eze Ekpeye Logbo in Council had been given in favour of 1st and 2nd defendants family on 8/3/90. The plaintiffs/appellants wished by their suit to set aside these acts. The Plaintiffs/appellants’ original writ of summons as distinguished from the amended writ of summons was issued on 7/11/91. The undisputed factual situation as at 7/11/91 when the plaintiffs/appellants commenced their suit was that a conferment rightly or wrongfully done had been made on the 1st defendant about 10 years before the plaintiffs/appellants commenced their suit. A customary body, Eze Ekpeye Logbo in Council had also as at 8/3/90 decided the dispute in favour of the 1st and 2nd defendants. The plaintiffs/appellants had been aware of these occurrences and it was apparent that because they felt that these acts were improperly done that the plaintiffs by their suit asked that these acts be set aside as null and void. Strangely however, after pleadings had been fully filed, the plaintiffs/appellants brought their application on 10-1/98, some seven years after they filed their suit. They asked that the 1st defendant be restrained from holding himself out as the Nye-Nwe-Ele of Ahoada community, a privilege which the 1st defendant had enjoyed since 8/12/81 and before the commencement of the plaintiffs’ suit. In other words, the plaintiffs were asking by their application that the situation as it stood before the commencement of the suit be reversed even before the case was heard. PAGE| 6 In John Holt Nig. Ltd. V. Holts African Workers in Nigeria and Cameroons [1963] 1 All NLR 385 at 389-390, Ademola C.J. said:      “The second aspect is the insistence of the learned trial judge to continue the hearing of the application for interlocutory injunction when it was so obvious from the facts before him that the object for which the injunction was asked for, namely, the introduction of a Reconstruction Plan to the defendants’ Company, had already been effected, and the Plan had been introduced before the application for interim injunction was filed. In other words, an interlocutory injunction was no more a remedy for an act which had already been carried out.” (underlining mine) See also U.B.N. Plc. V. Adjarho [1997] 6 NWLR (Pt. 507) 112 at 124 and Ochudo V. Oseni 1 ]1998] 13 NWLR (Pt. 580) 103. On the facts available it seems to me that the court below was right to have allowed the appeal by setting aside the order of interlocutory injunction granted by the trial court it being clear that the acts in respect of which the plaintiffs/appellants sought an interlocutory injunction had in fact been completed. It only remained for the trial court to declare the concluded acts null and void if the plaintiffs/appellants succeeded in their claim. The trial court was wrong to have granted an interlocutory injunction in the circumstances of this case. Under their second issue, the appellants have contended that the court below misconceived the basis of their application. It was argued that the court below erroneously formed the impression that the order made by the trial court would affect third parties. Counsel relied on Akapo V. Hakeem-Habeeb & Ors. [1992] 6 NWLR (Pt. 247) 266 at 287 and Onyesoh V. Nnebedun [1992] 3 NWLR (Pt. 229) 319. I have read the judgement of the court below wholly and the impression I have is that the major point made therein was that the acts which the trial court purported to restrain had in fact been concluded. It is therefore of no consequence if the court below in addition to the point majorly made thought that the order of the trial court might affect third parties. In the final conclusion, I do not see any merit in this appeal. It is accordingly dismissed with N10,000.00 costs in favour of the respondents. S. U. ONU, JSC: Having been privileded to read in advance the lead judgment just delivered by my learned brother, Oguntade JSC, I am in entire agreement with him that this appeal be dismissed. A few comments of mine, I think, will do in expatiation of the two issues for determination discussed in this appeal as follows:- In issue No. 1, the Appellants have taken the view firstly, that the Court of Appeal interfered with the discretion of the trial court and secondly, that the Court of Appeal in coming to the decision that the interlocutory injunction was wrongly granted did in fact in that process, decide the “substantive issue of which of the parties to the suit produces the Nye-Nwe-Ele of Ahoada when the issue is still pending before the trial court.” PAGE| 7 The main plank of the claim in High Court as disclosed in the pleadings was not that the title or stool of the Nye-Nwe-Ele of Ahoada was vacant and so the High Court should decide between the plaintiffs and defendants who should ascend to the vacant stool. On the contrary their claim was that the 1st defendant has since December 1981 been issued with a certificate of conferment of the title of Nye-Nwe-Ele and that the High Court should declare the said conferment or recognition as null and void. If one may ask the Appellants, if the 1st defendant had not been so recognized what then do the Appellants want the court to declare null and void? And if the 1st defendant had not been going about performing the functions of the office of the Nye-Nwe-Ele, why do the Appellants want him to be restrained from holding himself to be the Nye-Nwe-Ele? The true position in the case in hand is that the Appellants are in court to protest the recognition or conferment of the title of Nye-Nwe-Ele on the 1st defendant. Except the court decides that the 1st defendant and his family are not the proper title holders and accedes to the appellants’ claim to nullify the recognition or conferment, the question whether the Appellants should produce the Nye-Nwe-Ele, being the person to hold the main Owhor-Ele-Ehuda does not arise. Notice the difficulty encountered by the Appellants in the court below (Court of Appeal) which drove them to a rather confused engagement in an exercise in semantics, an exercise which the court below rightly deprecated. The Appellants in the court below admitted that what the 1st defendant had before they filed the suit was a conferment and not a recognition. The court below not impressed by the 1st Appellant’s contention commenced thus: “The contention of the learned counsel to the respondents that the certificate given to the 1st Appellant was not a certificate of recognition but rather a conferment is totally misplaced because whether by recognition or conferment, the 1st Appellant had acted before and since 1981 as the Nye-Nwe-Ele of Ahoada. When therefore the Appellants complain about the court below interfering with the discretion of the trial court the allegation appears to be specious. This is because they have not pin – pointed any particular finding of fact of the trial court which was within the province of the trial court but which the Court of Appeal interfered with. It is the law that except under some stated conditions a Court of Appeal will not interfere with a discretion or finding of fact by a trial court. But where the discretion of the trial court was not judicially exercised or where the finding of fact was perverse, a court of appeal will definitely interfere. Vide Makinde V. Akinwale (2000) 2 NWLR (Pt. 645); Chikere V. Okegba (2000) 12 NWLR (Pt. 681) 274; Acme Builders Ltd V. K.S.W.B (1999) 2 NWLR (Pt. 590) 288 and Uzochi V. Onyemwe (1999) 1 NWLR (Pt. 587) 339. Having taken a careful look at this case I take the firm view that the trial court’s discretion was wrongly exercised and the court below quite rightly exercised its discretion to set it aside in the interest of justice. The court below is empowered under section 16 of the Court of Appeal Act to “……generally have full jurisdiction over the whole proceedings as if the proceedings have been instituted in the Court of Appeal as a court of first instance and may rehear the case in whole or part…….” The Appellants’ insistence that the court below by setting aside the order of injunction thereby decided the substantive action in favour of the respondents is unfortunate. It shows a total lack of understanding of the judgment of the court. The principle is that the court will not make an order of restraint of an act which has been completed and that the court will not make an order of injunction if that will have the effect of altering the status quo. See John Holt Nig. Ltd. V. Holts African  Workers Union (1963) 1 All NLR 379, U.B. N. V. Adjarho (1997) 6 NWLR (Pt. 507) 112 and Ochido V. Useni (1998) 13 NWLR (Pt. 580) 103. PAGE| 8 In its judgment in the case herein on appeal, the court below set out in extenso the relevant claims of the Appellants vide paragraphs 6 and 7 whose ipse dixit was to the effect that 1st Respondent as at 1981 had been recognized as the Nye-Nwe-Ele of Ahoada and that such could not justify the order of injunction granted by the High Court except it was wrongly intended to upset the well established principle that an injunction will not be issued to alter the status quo. For these reasons, I agree with the Respondents’ submission that the Court below was perfectly right when it concluded thus: “………It follows therefore that restraining the 1st defendant from parading himself for upwards of 20 years will not only be unjust but amount to entering judgment for the respondents before leading evidence in the case, because the issue to be decided by the court is whether the recognition given to the 1st defendant as the Nye-Nwe-Ele of Ahoada was null and void. I think the better approach should have been to maintain the status quo and hold the recognition valid until it is set aside or nullified after hearing evidence from the parties.” The Appellants in their brief have insisted that the res in the substantive suit was the claim of both parties to be entitled to bear the title of Nye – Nwe – Ele of Ahoada Town. With due respect, I disagree with this submission and state that the res was rather the entitlement of the defendants’ family to continue to keep the main Owhor and to sacrifice at the Ele – Ehuda shrine, a fact which the Plaintiffs/Appellants have sought to nullify in the substantive suit. The Appellants ought to appreciate that there must be something on the ground before the question of nullification can arise. One cannot ask a court to nullify a vacuum or nothing. The Appellants after setting out the findings of the lower court to the effect that “it is clear from the amended writ of summons that ten years prior to filing of this suit and specifically since 1981 the 1st defendant had continued to act pursuant to Ekpeye native law and custom as the Nye – Nwe – Ele of Ahoada” to have rather sentimentally and unguardedly condemned the court below for making a finding of fact without evidence and therefore entering judgment for the respondent without evidence at the stage of interlocutory injunction. This may have to do with the veracity of the case put up by the appellants who have contended that finding was not borne out by the evidence. The position of the Appellants is quite curious for the sheer reason that it was the Appellants who had voluntarily claimed that a certificate dated 18/12/81 certifying the 1st Respondent as the Nyemoja – Owhor – Ehuda being conferred with the title Nye – Nwe – Ele of Ahoada, a claim which the Appellants urged the court below to examine and act upon accordingly when and as necessary. Besides, it is not clear what they (Appellants) mean by evidence when apart from the claim on the writ there was abundance of evidence from the Respondents’ counter-affidavit reproduced in the Defendants/Respondents’ counter-affidavit repro-duced in their brief of argument in the court below. Furthermore, the 1st Respondent has been accepted as the Nye – Nwe – Ele by the Ahoada community and even by a section of the Appellants’ family. It cannot be said therefore that the Appellants were not aware of the existence of such evidence; accordingly their contention that the judgment of the Court of Appeal in this respect had no evidential support can only be described as unfortunate. PAGE| 9 The Appellants have further contended that “there is no evidence before the lower court that the Respondents (i.e now Appellants) did not apply for injunction until almost one year after the installation of the 1st defendant.” Clearly, the quotation is incomplete and misleading since the Appellants have left out the other portion of the judgment. The concluding part of the judgment should read….. “and waited for almost ten years to sue him and another seven years to apply for interlocutory injunction to restrain him from performing the functions of his office to which he was appointed in 1981.” When the totality of that portion of the judgment is quoted as above, it is clear that the Court of Appeal was at pains to appreciate why the plaintiffs were seeking the equitable remedy of injunction which are granted in cases of urgency. Thus, in Ajewole V. Adotimo (1996) 2 NWLR (Pt. 431) 391 this Court said: “Interlocutory or interim injunctions are granted in cases of urgency. Thus an applicant who is guilty of delay thereby demonstrates the absence of any urgency requiring prompt relief. In the instant case, no urgency was disclosed by the Appellant to enable the court exercise its discretion in its favour.” See also Kotoye V. Central Bank (1989) 1 NWLR (Pt. 98) 419 and Missini V. Balogun (1968) All NLR 310. The Supreme Court in principles laid down in several decided cases will not interfere in the exercise of the discretion of a lower court unless the exercise of such discretion is “manifestly wrong, arbitrary, reckless or injudicious.” See per Nnamani, JSC in University of Lagos V. Olaniyan (1985) 7 NWLR 156 at 163. See also In Re Adewunmi (1988) 3 NWLR (Pt. 83) 483; Lauwers Import-Export V. Jozebson Ltd (1988) 13 NWLRD (Pt. 88) 430. Other cases decided on the same principle are Demuren V. Asuni (1967) All NLR 94 at 101, Solanke V. Ajibola (1968) 1 All NLR 46 at 52, University of Lagos V. Aigoro (1985) 1 NWLR 143 at 148, Niger Construction Co. Ltd V. Okugbeni (1987) 4 NWLR 787 and Nwabueze V. Nwosu (1988) 4 NWLR (Pt. 88) 257 at pages 262 and 266. As has been decided in a majority of cases on the exercise of discretion, it has been held that discretion is not to be reversed merely because courts might think it quite plain that they would have adopted a different course. In further answer to the point that there was no evidence to support the quoted portion of the judgment of the court below at page 14 of the Appellants’ brief, I am of the view that the exception taken by the Appellants is misplaced since in none of the four grounds of appeal has that portion of the judgment been questioned either as a misdirection or error in law and particularly, as there is no general ground of appeal complaining that the judgment of the Court of Appeal is against the weight of evidence. Accordingly, the Appellants’ submission on that point, relates to no issue arising from a valid ground of appeal and this Court therefore lacks the jurisdiction to entertain the argument which I hereby accordingly discountenance. ISSUE NO. 2 PAGE| 10 Appellants issue No. 2 questions “whether the lower court misconceived the basis of the Appellants’ application before the lower court and also the order made by the trial Judge and came to a wrong conclusion that the order has affected third parties and disrupted the traditional business of Ahoada Community. The short answer to this issue as succinctly put by the Respondents is, in my view: (1) that the court below had in no way misconceived the basis of the Appellants’ application. The court below indeed truly appreciated the basis of that application which is why it held that the order of injunction ought not to have been granted because the Appellants delayed for several years and established no urgency that the application was made to restrain an act that had already been done and that third parties’ interest had been adversely affected by the order of injunction. I adopt in its entirely Respondents’ answer on this issue and have nothing further to add thereto. For the reasons I have given and the more compelling ones contained in the leading judgment of my learned brother Oguntade, JSC with which I entirely agree, I too dismiss the appeal. I make similar consequential orders inclusive of those as to costs contained in the leading judgment of my learned brother Oguntade, JSC. KATSINA-ALU, JSC: I have had the advantage of reading in draft the judgment delivered by my learned brother Oguntade JSC. I agree with it. Paragraphs 6 and 7 of the Amended Writ of Summons of the Plaintiffs filed on 3/6/97 read as follows: “6. A declaration that the purported certificate of conferment of the title of Nyemoji – Owhor-Ehuda dated 18/12/81 purported as a conferment of the title of the Nye-nwe-ele of Ahoada on the 1st defendant by HRH R.O. Robinson, Eze Ekpeye Logbo is null and void. 7.

COUNSELS

J.T.O. Ugboduma Esq. For the appellants A. Ekong-Bassey SAN, with him V.N. Ikhua Madueyi, Esq. For the respondents.

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