Ichie Anoghalu & Ors Vs Nathan Oraelosi & Anor (1999)

LAWGLOBAL HUB Lead Judgment Report

M.E. OGUNDARE, JSC

This is an appeal from the judgment of the Court of Appeal (Enugu Division) which dismissed the appeal to it from the Ruling of the High Court of Anambra State (Nnewi Judicial Division). At the said High Court the Plaintiffs who are now appellants before us had sued (for themselves and on behalf of Ubahuabu Ubahu village minus Umunnabala family) Nathan Oraelosi (for himself and on behalf of the members of Umunnabala family of Ubahu) and the Sole Administrator Ihiala Local Government, as defendants, claiming:

A declaration that it is not the exclusive prerogative of Umunnabala Family in Ubahu Okija to select and present a candidate for recognition as the traditional ruler of Okija on the demise of a reigning Igwe or traditional ruler of the town.

A declaration that the purported ‘Okija Chieftaincy Constitution and Code of Conduct’ was not prepared and approved by the Okija Community including the plaintiffs and is ultra vires, null and void and of no effect.

A declaration that if there is any existing Chieftaincy Constitution, the Okija Community through the Okija Progressive Union is entitled to review the said Constitution before a candidate is selected and presented to succeed the demised Igwe or traditional ruler.

An injunction to restrain the 1st defendant and his family, their servants and/or agents from electing and installing the first defendant or anyone else from their family as a candidate to be presented to the 2nd defendant for recognition by the Government of Anambra State as the traditional ruler of Okija town.

An injunction to restrain the 2nd defendant from receiving the 1st defendant if presented to him or anyone else who may be presented to him for recognition by the Government of Anambra State as the traditional ruler of Okija.

A further injunction to restrain the 1st defendant from continuing to parade himself as the person to succeed the demised Igwe or the traditional ruler of Okija and to be presented to the 2nd defendant for recognition by the Governor of Anambra State as the traditional ruler of Okija.”

Filed along with the writ is a Statement of Claim and two motions, one of which is ex parte for an interim injunction restraining the 1st defendant et cetera from presenting himself to the 2nd defendant et cetera as a step for being recognised as a traditional ruler of Okija pending the determination of substantive motion on notice in the case of the ex parte motion or pending the determination or the action in the case of the motion on notice. The learned trial Judge granted the ex parte motion. On being served with the writ, the Statement of Claim, the motion on notice and the Order made on the ex parte motion, the 1st defendant filed a motion on notice praying the Court “for an order striking out the word ‘for themselves and on behalf of Ubahuabu Ubanu village minus Umunnabala family’ from the title of the above suit AND for an order discharging the ex parte order made on 11th January 1990”. The motion was supported by an affidavit sworn to by the 1st defendant as Applicant. Exhibited to this affidavit arc the affidavit of one Thomas Anamene who referred to himself as the Okpala of Ezieke village, one of the group of villages in Okija. There is also an affidavit of Ichie Madueke Nwin, the Ichie of Etiti Ubahu another part of Okija. There are also other documents annexed to the affidavit of the 1st defendant all tending to show that the plaintiffs were not authorised by the people they claimed to represent, to represent them in the action and also that the 4th named plaintiff never gave authority for his name to be included as a party in the action.

The motion came up for hearing and after arguments have been advanced by learned counsel for the parties the learned trial Judge Ugwu J. granted the application. He found:

“As I have no reason to doubt the authenticity of the affidavit (Exhibit E) and as no one can be forced to sue and prosecute a case I think I am bound to act on his affidavit, although the best thing he should have done was to file a formal motion asking that his name be withdrawn from the suit as he actually deposed to at paragraph 8 of his said affidavit. However, to save time and expense, I accept his affidavit Exhibit E and in the circumstances his name is hereby struck out of the suit.”

“I think that since the 1st defendant has decided to challenge the plaintiff’s representative capacity immediately or from the on-set the plaintiffs should have done something at once too. For example the plaintiffs should have quickly got some of those they represent to swear to an affidavit to this effect and bring an application to the court for approval to sue in a representative capacity exhibiting the affidavit of those they represent. Exhibiting or producing to the court the written authority to sue in a representative capacity is the best answer to the 1st defendant’s contention. In as much as the plaintiffs have failed to do this I have no choice than to accept the submissions of the learned Senior Advocate for the 1st defendant who has stated the law correctly”.

“I have read the affidavits of those who said that the plaintiffs do not represent them. I have no reason to doubt the authenticity of their averments. Since they were not served with the order. I do not quite see what is wrong in the method they adopted in bringing their positions to the court although it is possible that there is a better way of doing this.”

“On the issue of discharging the ex-parte order made by this court on 11th January, 1990, this order was made on the representation of the plaintiffs that they were five plaintiffs and that they brought the action for themselves and on behalf of Ubahuabu Ubahu village minus Umunnabala family. The 4th plaintiff has repudiated his position as one of the plaintiffs and his name accordingly struck out. Although the five or the remaining four plaintiffs can sue individually or together, there is no doubt that their claim to represent some groups of people or villages affected the mind of the court when the order was made”.