Chief Oyibo Agbomagbo & Anor V. Chief Oloku Okpogo & Ors (2005)

LawGlobal-Hub Lead Judgment Report

U.M. ABBA AJI, J.C.A.

In the present appeal, the Appellants as the Plaintiffs, took out a writ of Summons against the five Original Defendants in this Suit on the 29 day of May, 1984, before the Delta State High Court, Warri, claiming declaratory and injunctive reliefs against the said five original Defendants.

On the 30th of May, 1984; the Appellants obtained an interim order of injunction against the Defendants restraining them from installing any person as the Odio-Ologbo of Ofagbe. On the 23/10/86, the Court upon the application to discharge the Order of Interim Injuction dismissed the application and in consequence, affirmed the interim order granted by it.

By a motion Ex-parte, dated the 28th day of January, 1999, the present 3rd defendant and Chief Matthew Ikpoku and Attorney General, Delta State, were joined in the suit as 7th and 8th Defendant’s respectively and further Orders of interim injunction made against them. By a motion on notice, dated 9th day of February, 1999, which followed the motion Ex-parte, the Appellants claimed the following orders:-

1. Restraining the 7th Defendant herein from parading himself, claiming or holding himself out as a Odio – Ologbo of Ofagbe, pending the hearing and final determination of the Suit.
2. Restraining the 8th Defendant herein from recognising, holding out or granting a Staff of Office to and or, in any way dealing with the 7th Defendant as the Odio-Ologbo of Ofagbe, pending the hearing and final determination of the Suit.

The motion was argued by the respective Counsel and in a considered ruling delivered as the 27th day of April, 1999, the trial Court refused the order for injunction sought and dismissed the application and discharged the order of interim injunction. This is what the trial Court held in dismissing the Appellant’s application:-

“Having regard to the above, the court is of the view that the plaintiffs have been using the process of this court by way of motion exparte for interim injuction in warding off other opponents in the past, without vigorously pursuing the matter to its logical conclusion.

Moreover, and more importantly, the plaintiffs by their showing in paragraph 11 of their affidavit in support of the motion papers had admitted that the 7th defendant had been installed the Odion-Ologbo of Ofagbe on 28/12/98. The grant of interlocutory injunction is no remedy to a completed action (See Anosike v. Gov. Imo/State (1987) 4 NWLR part 66 p. 663. On the whole, this application lacks merit and it must fail and it is hereby dismissed. The earlier order of this court, restraining the 7th defendant from parading himself as the Odio-Ologbo of Ofagbe is hereby rescinded. There will be cost of N500.00 for the 7th defendant for this application.

It is against this ruling that, the Appellant’s have now appealed to this Court. Four Original grounds of appeal were filed and two additional grounds of appeal were filed with leave of Court. The grounds of appeal without their particulars are hereby reproduced.

1. The learned trial judge erred in law, when he refused to grant the order of injunction.
2. The learned trial judge erred in law, in holding that there is no claim before the Court on which to base 2 the prayers sought.
3. The learned trial judge erred in law, when he upheld the act of 7th Respondent in disobeying Court Orders.
4. The Ruling is against the weight of evidence.
5. The learned trial judge erred in law, when he held as follows:-

“The Court is of the view that the Plaintiff’s have been using the process of this Court by way of motion ex-parte for interim injunction in warding off other opponents in the past without vigorously pursuing the matter to its logical conclusion.”

6. The learned trial judge erred in law, when he held that Plaintiff’s admitted that the 7th Defendant had been installed the Odio-Ologbo of Ofagbe on 28/12/98.

In compliance with the Rules of this Court, parties filed and exchanged briefs of argument. The Appellant’s brief settled by T.R. Ikpotor Esq. identified a single issue for the determination of the appeal viz:-

Was the refusal of the learned trial judge to grant an order of injunction a proper exercise of discretion?

In the 1st – 3rd Respondents brief settled by I. Ovwighorienta Esq. also identified a lone issue for determination of the Appeal thus, whether the learned trial judge was right in refusing to grant the interlocutory injunction sought by the Plaintiffs having regard to the facts and particular circumstances of this case.

In the 4th Respondent’s brief settled by Prof. A.A. Utuama, A.G. Delta State, also a lone issue was identified for the determination of the appeal viz, whether the learned trial judge judiciously exercised his discretion, when he refused to grant interlocutory injunction sought by the Appellants against the 3rd and 4th Respondents.

At the hearing of the appeal, learned Counsel, for the Appellants adopted his brief of argument, dated 17/1/02 and filed on the 21/1/02, and the Appellants reply brief filed on the 31/4/04, and urged us to allow the appeal. Learned Counsel for the 1st-3rd Respondents also adopted his brief of argument dated 14/5/03 and deemed filed on the 31/3/04 and asked us to dismiss the appeal. The learned Counsel for the 4th Respondent also adopted his brief of argument dated 3/12/03 and deemed filed on the 31/3/04 and urged us to dismiss the appeal. All the issues as formulated by the respective Counsel are virtually one and the same thing.