Chief J. O. Ehikhamwen & Ors. V. Prince Iluobe (the Onojie of Uzea) & Ors. (2001)

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IBIYEYE, J.C.A.

This is an interlocutory appeal from the ruling of Agun, J. of the Uromi Judicial Division of the Edo State High Court of Justice in suit No. HCU/5/96 delivered on the 30th day of October, 1997.

The appellants, as plaintiffs, filed a writ of summons dated 9th of February, 1996 seeking the following reliefs jointly and severally against the respondents, as defendants:

1. A declaration that the revocation of the Bendel State Legal Notice No.55 of 1979 being a customary law regulating succession to the traditional rule title of the clan head of Uzea by Edo State Legal Notice of 1995 without any hearing from the plaintiffs is contrary to the fundamental human rights provisions of the 1979 Constitution and provisions of the Traditional Rulers and Chief Edict of 1979.
2. An order setting aside the appointment of Prince Itoya Iluobe as the Onojie of Uzea in the Esan North East Local Government Area with effect from 21st September, 1995 contained in the secretary to the Edo State Government letter dated 23rd October, 1995.
3. A declaration that it is the turn of the 1st plaintiff who was installed the village head of Ebhoike in 1982 to be appointed the clan head of Uzea.
4. An order directing the 3rd, 4th and 5th defendants to appoint the 1st plaintiff as the clan head of Uzea.
5. Perpetual injunction restraining the 1st defendant from parading himself as the Onojie of Uzea or presenting himself for coronation and/or being presented with staff of office by the 3rd, 4th and 5th defendants.
6. Perpetual injunction restraining the 3rd, 4th and 5th defendants from coronating or presenting the 1st defendant with staff of office or dealing with the 1st defendant in any manner whatsoever inconsistent with the rights of the plaintiffs.”

Before the appellants could file their statement of claim, the 1st and 2nd respondents filed motion on notice seeking the following reliefs:

(a) An order dismissing the plaintiff’s claim in that this honourable court has no jurisdiction to entertain this suit.

(b) In the alternative

(i) Extension of time to apply for an order to discharge, vacate and/or dissolve the order of interim injunction made in respect of this action dated 27th February, 1996.

(ii) An order to discharge, vacate and/or dissolve the order of interim injunction dated the 27th of February, 1996, on the ground of the plaintiff/respondents’ misstatement of their case, either by representation and/or lack of jurisdiction of this honourable court.” The motion was supported by a thirty paragraph affidavit and nine exhibits.

The appellants jointly filed, in reaction, a twenty paragraph affidavit wrongfully titled “Further Affidavit” dated 17th of May, 1996 and a counter affidavit of twenty two paragraphs dated 22nd day of July, 1996.

In the course of moving the motion on the 27th of February, 1979, the learned counsel for the respondents/applicants abandoned the alternative relief and the trial court struck it out.

Both the learned counsels for the respondents and the appellants argued the surviving relief of the 1st and 2nd respondents. The learned trial Judge in his ruling said, inter alia, at page 89 of the record of appeal as follows:

“I therefore hold that the court has no jurisdiction to entertain the claim. I further hold that in view of my preceding remarks, the claim does not merit any consideration.

Consequently, the application substantially succeeds and the claim is hereby struck out with N3,000 cost (sic) in favour of the 1st and 2nd defendants/applicants.

The appellants were aggrieved by the ruling and filed five grounds of appeal. In strict compliance with the rules of this court, the appellants filed a joint brief of argument. The appellants adumbrated the following five issues from the five grounds of appeal: