Sobie Ojimba & Ors V. Peter Ojimba & Ors (1996)

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ONALAJA, J.C.A.

The plaintiffs now referred to in this judgment as the respondents sought and were granted leave at the High Court of Rivers State holden in Port Harcourt to commence and institute the action there, in a representative capacity. By their writ of summons they claimed against the defendants hereinafter referred to in this judgment as the appellants the undermentioned particulars of claim:-

“The plaintiffs’ claim against the defendants jointly and severally is for an injunction to restrain the defendants, their agents or privies from installing a chief of OJIMBA Village without the consent of the entire OJIMBA Village and the entire KPEYA War Canoe House of Okrika.”

Immediately after the institution of the action, the respondents applied and were granted interim order of injunction against the appellants.

After service of the writ and the interim order of injunction on the appellants in accordance with the provisions of High Court Civil Procedure Rules of Rivers State because of the type of order of interim injunction granted, appellants applied under the relevant order of Rivers State High Court Civil Procedure Rules for a variation or discharge of the said order of interim injunction. As the mistake of grant of the order was so apparent to the lower court instead of discharging the order it was varied to hold pending the determination of the motion on notice for interlocutory injunction against the appellants.

Respondents eventually applied for an order of interlocutory injunction on notice against the appellants. The relief of interlocutory injunction is hereby set down as below:-

“(i) An interim injunction in the terms of the ORDER of this Court dated 5th day of May 1988 pending the determination of this suit” the relief granted on 5th day of May 1988 was based on the prayers of the  respondent thus:-

“(i) Interim injunction to restrain the defendants, their supporters, privies and collaborators from carrying on the proposed installation of a chief in OJIMBA Village.

(ii) Interim injunction to restrain the defendants, their supporters, privies and collaborators from presenting one CLIFFORD IWERISO OJIMBA as Chief of OJIMBA Village.”

The respondents filed supportive copious affidavit and attached documents marked as exhibits to the motion on notice of interlocutory injunction.

The appellants also filed very lengthy and copious counter affidavit wherein they marked as exhibits the attached documents relied upon by them. Owing to the nature of the facts deposed to in the counter affidavit to meet and deny them the respondents filed a further affidavit in reply to the counter affidavit.

In moving the motion learned counsel for the respondents submitted that the issue was a chieftaincy matter whereby a certain section known as OJIMBA desired to install a chief of their own being a smaller section of a larger part which had just installed the chief for the whole area which included OJIMBA Village, by their act the appellants were introducing new chieftaincy stool contrary to the existing customary law of the area. Should the application be refused it meant imposition of a chief on an unwilling majority. From the deposed facts learned counsel for respondents relied on Obeya Memorial Specialist Hospital v. A.G. Federation & Anor (1987) 3 NWLR (Pt. 60) page 325 and also on Nigerian National Supply Company Limited v. Alhaji Hamajoda Sahana Company Ltd. (1986) 5 NWLR (Pt. 40) page 204, so court should grant the prayer.

On his part learned counsel for the appellants opposed the application that the custom alleged had no legal basis, thereby respondents failed to establish legal right which had been infringed. As the nature of the civil rights alleged to have been violated were not established or shown since chieftaincy matter is not civil right or human rights so observed the Supreme Court in Mustapha v. Governor of Lagos State (1987) 2 NWLR (Pt. 58) page 539 at 543. The respondents therefore lacked the locus standi to file the action. Reference was made to Thomas v. Olufosoye (1986) 1 NWLR (Pt. 18) page 669 at 672. They were busy bodies, so they lacked the locus standi.

He submitted further that the native law and custom was not strictly proved, as there was no evidence of such native law and custom. See Otaru v. Otaru (1986) 3 NWLR (Pt. 26) page 14.