Emmanuel Atungwu & Anor V. Ada Ochekwu (2013)

LAWGLOBAL HUB Lead Judgment Report

SULEIMAN GALADIMA, J.S.C.

This is an Appeal brought by the Appellants from the Judgment of the Court of Appeal (herein referred to as the court below) Jos Division in Appeal No. CA/J/2/2/2001 delivered on 29/6/2004, wherein that Court dismissed the Appeal and affirmed the Judgment of the trial Court.

Dissatisfied with the Judgment of the Court below, the Appellants have appealed to this Court upon the Notice of appeal containing 8 Grounds of Appeal. From the 8 grounds of Appeal 5 issues, which the Respondent adopted for determination were formulated. I shall come to the issues anon. However, the facts of this case which has a chequered History and intriguing circumstances must be first exposed. It is that sometimes about 29th day of April 1995, the Respondent herein was appointed the substantive Clan Head of Edikwu Community, following the death of the previous holder and the expiration of the Regency or period allowed by the Custom and Tradition of the people.

Upon the Appointment of the Respondent by the King Makers, the Respondent was “beaded” as the substantive Clan Head. Following the appointment and beading of the Respondent, the 1st Appellant, who was then laying claim to the Regency, upon the death of his own father, one ATUNGWU AJIMA, who himself was once a Regent, commenced proceedings against the Respondent at Otukpo High Court vide Suit No. OHC/196/95 challenging the appointment of the Respondent as the Clan Head of Edikwu Clan. The 1st Appellant also sought for an order of the court allowing him to continue in the acting capacity.

Issues having been joined, the Respondent filed a Motion No.OHC/50/M/95 seeking for an order dismissing the case on the ground that there was no further vacancy in the office of the Clan Head of Edikwu Clan to allow for the regency or acting period to continue.

On the 21st day of March 1996, the Otukpo High Court in a considered Ruling granted the application and struck out the case. In the course of the Ruling the trial court found that the Respondent herein, then the applicant in the motion is the substantive Clan Head of Edikwu Clan. It was also held that there was no vacancy existing in the clan Headship of Edikwu Clan after the Applicant was selected and beaded, and accordingly the case was struck out.

It was upon the above Ruling of KAKA’AN J that the Respondent commenced proceedings against the Appellants in suit No.MHC/63m/97, seeking for an order of Mandamus and injunction. In the course of the proceedings in the said Suit No. MHC/63m/97 the Appellants herein filed an interlocutory appeal to the Court of appeal in Appeal No. CA/J./160/97, challenging the Ruling of the trial court which had assumed jurisdiction to entertain the case.

The Court of Appeal, however, on the 25th day of October, 1995 in a well considered Judgment dismissed the appeal and ordered that the case be heard on the merit.

Upon the Judgment of the Court of Appeal in the said appeal No.CA/J/160/97 the trial court proceeded with the case and on 12th day of April 2001 granted the reliefs sought by the Respondent herein. Aggrieved by this decision, the Appellants appealed to the Court of Appeal upon Notice of appeal containing 7 grounds. Again,on the 29th day of June 2004 the court below dismissed the appeal and affirmed the Judgment of the trial court. It is against this Judgment of the Court below that the Appellants herein, have appealed to this Court.

As earlier stated in this Judgment the appellants’ Notice of Appeal contains 8 Grounds of Appeal from which 5 issues have been formulated as follows:

“3.01. Whether the Court of Appeal was right in striking out grounds 3 and 4 of the Notice of Appeal on the ground that no issues were formulated thereon.

3.02 Whether the Court of appeal was right when it held that the suit No.MHC/63m/97 seeking the relief of mandamus and injunction was not premature, pre-emptive and that no approval of relevant government agency was required for the selection/appointment and beading of the Clan Head of Ediwku.

3.03 Whether the Court of Appeal was right in confirming the order of injunction against the second appellant after having allowed the appeal on issue No. 2 concerning suit No.OHG/503m/95 which was the basis of the trial of the court order of injunction, particularly against the second appellant who was not a party in that case.

3.04 Whether the Court of Appeal was right when it held that there was no need to call oral evidence on the issue of demand and that there was satisfactory proof of demand on the first appellant to handover the chieftaincy property to the respondent.