Ichie Jerome Anoghalu & Ors. V. Nathan Oraelosi & Anor. (1999)

LAWGLOBAL HUB Lead Judgment Report

E. OGUNDARE, J.S.C

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

“1. 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.

2. 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.
3. 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.
4. 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.
5. 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.
6. 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 of 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 are 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:

1. “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.”
2. 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.”
3. 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.”
4. “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 or 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.”

The learned Judge adjudged as follows:

“In the result, this application succeeds and the words “for themselves and on behalf of Ubahuabu Uhahu village minus Umunnahala family is hereby struck out from the title of this suit….. the interim order made by this court in this suit on 11th January, 1990 is hereby discharged.”

Being dissatisfied with the decision of the trial Court, the remaining four plaintiffs, that is, 1st 2nd, 3rd and 5th appealed to the Court of Appeal on six grounds of appeal and in their written Brief of Arguments set out four issues as calling for determination in the appeal. These were:

“1. Whether there were irreconcilable conflicts in the affidavits of the parties and if so whether there was a need for the Judge to reconcile them.

2. Whether there were misdirection and a non-direction on the part of the learned trial Judge on the exhibits before him and if so, whether the misdirection and non-direction occasioned a miscarriage of justice.
3. Whether the learned trial judge was right in setting aside the exparte order.
4. Whether the learned Judge was right in striking out the words, ‘for themselves and on behalf of Ubahuabu-Ubahu Village minus Umunnabala family”‘.

The Court of Appeal in its judgment dismissing the appeal found:

1. “Applying this test to the instant case, there is no doubt that the decision of the lower court deleting the representative capacity in which the plaintiffs’ action was brought must be only interlocutory order because by its nature, the rights of the parties which were the subject matter of the action have not been disposed of. It was still pending and the action could still be prosecuted to final judgment after the order deleting the representative capacity, albeit in their personal capacities.”
2. “Although the first ground of appeal alleges error of law in that the trial Judge did not follow the decision in Otapo v. Sunmonu & Ors. (1987) 5 S.C. 228; (1987) 2 NWLR (Pt.58) 587 that ‘the plaintiffs could sue in their personal capacity without expressing on the writ the capacity they have brought the action but that aspect can be considered only when the appeal is properly before this court.”
3. “What was in issue in the instant appeal was the revocation of an interim injunction granted by the trial court on an ex-parte application. The interim injunction was to last until the determination of a substantive motion on notice. The injunction was therefore interim and interlocutory since it has not in any way decided the issues in dispute between the parties. The injunction envisaged under section 220 (1) (g) (ii) of the 1979 Constitution is definitely one that determines the controversy or dispute between the parties and not one made as an interim or interlocutory measure.”
4. “What was in issue in the instant appeal was the revocation of an interim injunction granted by the trial court on an ex-parte application. The interim injunction was to last until the determination of a substantive motion on notice. The injunction was therefore interim and interlocutory since it has not in any way decided the issues in dispute between the parties. There is no doubt that sect. 220(1)(g) confers a right of appeal without leave on revocation of injunction as in this case. The appeal in respect of that issue is therefore properly before this court.”

The four plaintiffs with leave of the Court below have now further appealed to this court upon three grounds of appeal. In their written Brief of Argument, they have formulated two issues for determination in this appeal, that is to say:

“1. The 1st issue for determination is whether the ground of appeal stated thus; The Court erred in law by making an order to strike out the words ‘for themselves and on behalf of Uhahuabu-Ubahu Village minus Umunnabala family’ from the title of the suit since on the authority of Otapo v. Sunmonu, the plaintiff …. sue in their personal capacities without expression on the writ, the capacity they have brought the action’ is a question of law, or of mixed law and fact.

2. The 2nd issue for determination is whether or not the ground of appeal based on section 220(1) (g) (ii) lacks merit since the learned trial Judge based his reason on the fact that the appellants had no mandate; that mandate being on issue of fact requires leave.”

In the written Brief of Argument of the 1st Respondent it is contended that the appeal is not properly before the Court in that the decision of the Court of Appeal was interlocutory and the appeal was not filed within fourteen days of that decision. It is stated in the Brief that the decision of the Court of Appeal was given on the 14th June 1993 but the Notice of Appeal was not filed until 12th of July 1993, more than fourteen days from the date of the decision appealed from. The plaintiffs did not file a reply Brief in answer to this contention. Learned counsel for the parties however, addressed us on the point at the oral hearing of the appeal. Mr. Anah for the plaintiffs submitted that the decision of the Court of Appeal was final and that therefore, the time to appeal against it is three months and not fourteen days. I think Mr. Anah is right. It is correct that the decision on appeal from the High Court to the Court of Appeal was interlocutory but the decision of the Court of Appeal on that appeal is clearly final. See Azubike Ume & Others v. Alfred Ezechi & Ors. (1962) 1 SCNLR 47; (1962) ANLR (Pt. 1) 16. The decision may not be final in the proceedings before the trial High Court but so far as the Court of Appeal is concerned. it is final in that that Court has finally disposed of the issues raised in the appeal before it.

Having thus disposed of the preliminary objection raised by the 1st Defendant/Respondent I now turn attention to the appeal itself. Issue (1):