Chief Ohwovwioghor Ikine V Chief Olori Edjerode (2001)

LAWGLOBAL HUB Lead Judgment Report

A.O. EJIWUNMI, J.S.C.

This appeal emanated from the Court of Appeal (Benin Division) where the appeal of the Respondents was upheld. This was as a result of the appeal of the Respondents to that Court against the decision of the High Court in suit No. UHC/9/88. In that suit, the respondents had by their writ of summons claimed for the following reliefs:-

“(1) A declaration that in accordance with the tradition, native law and custom of the Uwherun Clan, Ughelli Local Government Area of Bendel State, within the jurisdiction of this Honourable Court, the Senior Odion Uwherun is appointed from EROVIE Quarter and EROVIE only, and is not subject to rotation among the five quarters which make up Uwherun.

(2)A declaration that EROVIE Quarter is the only Ruling House in Uwherun Clan.

(3) A declaration that the purported appointment and subsequent gazetting of the 1st defendant from Ehere Quarter as the Senior Odion of Uwherun is contrary to Uwherun native law and custom; usage and tradition and is therefore null and void and should be set aside.

(4) An injunction restraining the 1st Defendant, his servants, agents, or privies or any of the 1st – 4th Defendants from functioning or continuing to function as Senior Odion of Uwherun pending the determination of this suit.”

It would appear that upon being served with this writ, the Learned Counsel on behalf of the 1st – 4th Appellants filed a motion on Notice dated 22/2/88 under the inherent jurisdiction of the Court for orders dismissing the action in suit No. UHC/9/88 for being frivolous, vexatious, oppressive and an abuse of the process of the Court. The motion was supported by an affidavit of eleven (11) paragraphs sworn by one Chief Hivite Egoh, the 2nd Appellant in this appeal. It is in that affidavit that the Appellants disclosed that the Respondents had in suit No. UHC/34/87, sued them for reliefs similar to those that they are now seeking in the present proceedings. In that affidavit also, the steps already taken in suit No. UHC/34/87, were also disclosed. I refer in this regard to paragraphs 5 and 6 of the said affidavit, and which read thus:-

“Para. 5 That on the 12th day of August, 1987, the Plaintiffs/Respondents obtained a temporary injunction against me and the other Defendants/Applicants/Respondents pending the determination of the motion on notice for interim injunction.

Para. 6 That the motion for the interim injunction was argued on the 22nd of October, 1987 and in a considered ruling delivered on the 19th day of November 1987, this Honourable Court dismissed the motion and accordingly discharged the temporary injunction. Thereafter, pleadings were ordered whereby the Plaintiffs/Respondents were ordered to file their statement of claim within 30 days and the Defendants/Appellants/Respondents were also ordered to file their statement of defence within 30 days after service on them of the statement of claim.

The Respondents filed a counter-affidavit dated the 20th of April, 1988, and sworn by Chief Edison Obrutse, the 2nd Respondent in this appeal. In the said counter-affidavit, they replied to several of the allegations contained in the affidavit of the Appellants in support of their motion. It is, in my view, relevant to reproduce paragraph 4 of the said counter-affidavit having regard to the facts disclosed therein:-

“Para. 4: That with regard to paragraphs 7-11 of the affidavit in support of the motion, I say as follows:-

(a) After our motion for interim injunction had been refused and pleadings ordered, we made up our minds to discontinue the action in UHC/34/87 as it couched in quiatimet form.

(b) As the event we wanted to stop immediately had taken place, it became necessary to bring a new action to fight the new situation.

(c) After series of meetings of the Erovie Quarter, we on 9/2/88 filed Notice of Discontinuance Of Suit No. UCH/34/84 against all the Defendants. I attach a certified true copy of the said Notice of Discontinuance and mark same as Exhibit Z.