Jerry Henry Ubani V. Chief Joseph T.I. Ogolo (1997)

LawGlobal-Hub Lead Judgment Report

MUHAMMAD, J.C.A. 

The parties to this appeal are or claim to be members of the Diepiri Section of Opobo Town. The cause of their dispute arose as to the succession to the traditional rulership of Chief of Main Ogolo House and Head of Diepiri Section. The Chieftaincy title became vacant as a result of the death of Raymond D, Ogolo in 1981 who was the Chief of Main Ogolo house and Head of Diepiri Section. The family was divided over succession to the title. This led to many Court actions. The appellants herein as plaintiffs in the lower court sued the respondents in a representative capacity in suit No. BHC/66/85. While this suit was still pending, the respondents, as plaintiffs, sued the appellants, in Suit No, BHC/16/86. The appellants’ claim in Suit No. BHC/66/85, the subject matter of this appeal, as set out in paragraph 38 of their amended statement of claim is as follows:-

“(a) A declaration that the purported installation of Joseph T. Ogolo as the Head of Diepiri Section of Opoba on the 29th November, 1985 is null and void and of no effect.

(b) A declaration that under Opobo Customary Law the right to install a Head for Diepiri Section of Opobo lies with the 6 war canoe Houses.

(c) N50,000.00 damages for the desecration of the Diepiri Shrine known as and called Kala Igoni on the 29th November, 1995,

(d) A perpetual injunction restraining the 2nd – 22nd defendants whether by themselves, servants, or otherwise whatsoever from holding out the 1st defendant as the Head of the Diepiri Section of Opobo Town.

(e) A perpetual injunction restraining the 1st defendant whether by himself, servant, agents or otherwise however from holding himself out as or acting, as the Head of Diepiri Section of Opobo Town.”

Pleadings were ordered, filed and exchanged with numerous subsequent amendments and the case went for trial before Ichoku J. The Defendants, hereinafter referred to as the respondents, then applied for an order of interim injunction to restrain the appellants from installing Chief L.L.B. Ogolo as Chief of the Main Ogolo House during the pendaney of the said Suit. This application was refused by the learned Judge on 24/6/86. Then in November 1993 the respondents again brought another application praying for the following orders:-

“1. An order of interlocutory injunction restraining the plaintiffs respondents, their servants, agents etc. from presenting anybody whomsoever to Opobo Council of Chiefs for recognition and confirmation as the Chief of Ogolo Main House of Opobo Town pending the final determination of the substantive Suit.

2. An order by this Honourable Court directed against the plaintiffs/respondents or any person in their group from presenting himself to the Opobo Council of Chiefs for confirmation and ratification as the Chief of Ogolo Main House of Opobo Town.”

This application was duly granted by the trial Judge. Dissatisfied with the order the appellants appealed to this Court upon seven grounds of appeal. Pursuant to the Rules of this Court, the parties filed and exchanged their respective briefs.

In the appellants’ brief three issues were formulated for the determination of the appeal. These are:-

“(a) Whether in view of the cause of action, the subject matter in dispute and the real issues in controversy as manifest in the pleadings and the surrounding circumstances prevailing on the date of the application for interlocutory injunction in question, the trial court acted judicially and judiciously in entertaining the said application.

(b) If so, whether the trial court exercised its judicial discretion in the circumstances correctly having regard to the materials properly placed before it and the pertinent considerations governing such exercise?

(c) Whether the trial court acted or could reasonably appear to have acted with bias or predisposition towards one of the parties to the suit?”