Akukalia Chike Ofodile, San Ofr V. Nwamulunamma Helen Agusiobo & Ors (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ISAIAH OLUFEMI AKEJU, J.C.A. (Delivering the Leading Judgment)

At the Onitsha Judicial Division of the High Court of Anambra State, the party now described as the 1st set of respondent, Nwamulunamma Helen Agusiobo, filed her Writ of Summons and Statement of Clam on 22/4/2009 in commencement of suit No. 0/132/2009 for three declaratory reliefs and perpetual injunction as averred in paragraph 11 (a-d) of the said Statement of Claim.

The List of Witnesses, the Deposition as well as List of Documents to be relied upon at the trial were all filed with the originating processes. There are 12 defendants in the suit.

In its essence, the suit had challenged the suspension of the plaintiff by the Onitsha Traditional Council as a member of the Otu Odu Onitsha Ado-na-Idu and the dissolution of the elected executive Committee of the Otu Odu Onitsha Ado-na-Idu by Onitsha Traditional Council while the injunction was to restrain the defendants, their agents or privies from further interfering in the affairs, management and control of Otu Odu Onitsha Ado-na-Idu.

On the same 22/4/2009, the plaintiff filed a motion on notice for orders of interlocutory injunction against the 1st- 11th defendants (now 2nd set of Respondents) jointly or severally by themselves or their agents, or privies from acting as members of the Caretaker Committee for the management and control of the affairs of the Otu Odu Onitsha Ado-na-Idu and from presiding at the initiation ceremonies of new members or any ceremony whatsoever of members of Otu Odu Onitsha Ado-na-Idu pending the determination of the suit. The motion was accompanied by a supporting affidavit and a written address filed therewith.

Upon service of the originating processes on him, the appellant who was listed as the 12th defendant filed a “Conditional Appearance Under Protest” on 26/6/2009 and filed a motion on notice for the following orders;

1. Setting aside the purported Writ and the purported service on the 12th Defendant.
2. Striking out suit No. 0/132/2009.
3. Striking out the 12th Defendant as it appears on the record.”

The Grounds on which the application was brought were stated as follows:-

a. The Writ is incompetent and service invalid.

b. Akukalia Chike Ofodile SAN, OFR does not exist.

c. An Akukalia being an Ozo title is not an Ndichie.

d. An Akukalia, Akunne, Akunwata or Nnabuenyi is not and cannot be a member of Onitsha Traditional Council (Ndichie).

e. A non-member of the Onitsha Traditional Council (Ndichie) cannot represent the said body in a legal suit.

A supporting affidavit of 10 paragraphs and a Written Address were filed with the motion on notice, the gist of which, as deposed by Chinyere Igwe in paragraphs 4, 5, 6, 8 and 9 are;

“4. The alleged 12th Defendant namely, Akukalia Chike Ofodile, SAN OFR does not exist.