Iheanacho Ekpahuru Ideozu & Ors V. Chief Frank Okpo Ochoma & Ors (2006)

LAWGLOBAL HUB Lead Judgment Report

OGUNTADE, J.S.C.

This is an appeal from the judgment of the court below in which it allowed an appeal from the ruling of the High Court in suit No. AHC/22/91 which is still pending before the said High Court of Ahoada Judicial Division of Rivers State. The appellants were the plaintiffs. By their amended writ of summons issued on 3rd June, 1997 against the respondents (as defendants), they claimed the following reliefs:

“1. A declaration that by Ekpeye native law and custom the Umudele Family of Ahoada is the head/founding family of Nye-Nwe-Ele (landlord) of Ahoada.

2. A declaration that the Umudele family by virtue of its status as the Nye-Nwe-Ele family of Ahoada has the exclusive and sacred custody of the main Owor-Ele-Ehuda.
3. A declaration that under Ekpeye native law and custom of inheritance, it is only members of the Umudele family being the head/founding family of Ahoada that can bear the title of Nye-Nwe-Ele or landlord/traditional ruler of Ahoada and who can possess the main Owor-Ele Ehuda and conduct all communal sacrifices for Ahoada.
4. A declaration that by virtue of the Ekpeye customary law of inheritance, the following members of Umudele Family, namely Eyele Ele, Madu Ele, Ozogbe, Nwogwo, Usuma, Imo Ideozu, Elder Michael Aliegbe, were recognized, lived, and died as the Nye-Nwe-Eles/ landlord/traditional rulers of Ahoada.
5. A declaration the defendants not being the members of the Umudele family cannot bear the title of Nye-Nwe-Ele or hold the main Owor-Ele Ehuda or conduct communal sacrifices for Ahoada.
6. A declaration that the purported certificate of conferment of the title of Nyemoji-Owhor-Ehuda dated 28/12/81 purportedly as a conferment of the title of Nye-Nwe-Ele of Ahoada on the 1st defendant by HRH R. O. Robinson Eze Ekpeye Logbo is null and void.
7. A declaration that the purported judgment or verdict of the Eze Ekpeye Logbo in Council dated 8/ 3/90 adjudging the 1st and 2nd defendants family of Abubogle as the Nye-Nwe-Ele of Ahoada and therefore entitled to hold the main Owor-Ele Ehuda is null and void.
8. An order of permanent injunction restraining the 1st defendant from holding himself out or howsoever parading himself as the Nye-Nwe-Ele of Ahoada Community.
9. An order of permanent injunction restraining all the defendants, by themselves, their servants, agents, privies or howsoever from interfering with the plaintiffs’ Umudele family rights as the Nye-Nwe-Ele family of Ahoada, as the exclusive possessor of the main Owor-Ele-Ehuda and in its conduct of communal sacrifices for Ahoada Community.”

The parties filed and exchanged pleadings and ordinarily the suit should have proceeded to a hearing but on 10/1/98, the plaintiffs applicants filed an application praying for the following:

1. An order of interlocutory injunction restraining the 1st defendant by his agents, servants, privies or howsoever from acting, holding himself out or howsoever parading himself as the Nye-Nwe-Ele of Ahoada community until the determination of this suit.
2. An order of interlocutory injunction restraining the defendants by themselves, their agents, servants privies or howsoever from entering into the premises where the Ele-Ehuda shrine is situated in Odiemelu Quarters of Ahoada for whatsoever purposes until the determination of this suit.
3. An for such further orders as this Honourable Court may deem fit to make in the circumstance.

The plaintiffs as applicants filed an affidavit in support of the application. The defendants filed a counter-affidavit to which was annexed a certificate of conferment. This elicited from the plaintiffs a further affidavit. In reaction, the defendants filed a further counter- affidavit. The application was before Charles-Granville J. Parties having extensively argued the application, ruling was on 13/3/2000 delivered thereon. In the ruling, the trial Judge concluded as follows at page 90 of the record: “I shall therefore exercise my discretion in favour of the plaintiff/applicants by granting the orders sought. Accordingly, I hereby make:

1. An order of interlocutory injunction restraining the defendant by himself, his servants, agents, privies or howsoever from acting, holding himself out or howsoever parading himself as the Nye-Nwe-Ele of Ahoada Community until the determination of this suit.
2. An interlocutory injunction restraining the defendants by themselves, their agents, servants, privies or howsoever from entering into the premises where the Ele-Ehuda shrine is situate for whatever purposes until the determination of this suit.
3. Plaintiffs/applicants are hereby ordered to enter into an undertaking before the Assistant Chief Registrar II of this court, to pay to the defendant/respondents, whatever damages the court may deem fit to make, if at the end, it is found that the order of interlocutory injunction was obtained frivolously, and ought not to have made.”

The defendents/respondent who were restrained by the trial court Judge brought an appeal against the ruling. The appeal was heard at the Court of Appeal, Port-Harcourt Division (hereinafter referred to as the ‘court below’). On 22/02/01 the court below in its judgment allowed the appeal and set aside the ruling of the trial court. The plaintiffs were dissatisfied with the judgment of the court below and have come on a final appeal before this court. In their appellants’ brief filed, the issues for determination in the appeal were stated to be these:

“1. Whether the lower court was justified in law to have interfered with the discretion of the trial court by determining in favour of the respondents at the interlocutory stage the substantive issue as to which of the parties to the suit produces the Nye-Nwe-Ele of Ahoada when the issue is still pending before the trial court for determination.

2. Whether the lower court misconceived the basis of the appellants application before the lower court and also the order made by the trial Judge and came to a wrong conclusion that the order has affected third parties and disrupted the traditional business of Ahoada community.”

The respondents’ counsel in his brief elected to adopt the issues for determination as formulated by the appellants.

The basis upon which the court below reversed the ruling of the trial court was that a court of law could not restrain a party from doing an act which has been done or completed. At pages 178-179 of the record of proceedings, the court below in its judgment said: “At this stage, I would like to reproduce paragraphs 6 and 7 of the amended writ of summons of the respondents filed on 3/6/97. They read as follows:

“6. A declaration that the purported certificate of conferment of the title of Nyemoji-Owhor-Ehuda dated 18/12/81 purported as a conferment of the title of the Nye-Nwe-Ele of Ahoada on the 1st defendant by HRH R. O. Robinson, Eze Ekpeye Logbo is null and void.

7. A declaration that the purported judgment or verdict of the Eze Ekpeye Logbo in council dated 8/3/90 adjudging the 1st and 2nd defendant’s family of Abubaogele as the Nye-Nwe-Ele of Ahoada and therefore entitled to hold the Owhor-Ele-Ehuda null and void.”

The action was filed on 7/11/91. It is therefore clear from the above paragraphs of the respondents’ amended writ of summons that ten years prior to the filing of this suit in 1991 and specifically since 1981, the 1st defendant had continued to act pursuant to Ekpeye native law and custom as the Nye-Nwe-Ele of Ahoada.

It is also disclosed in the writ of summons and repeated in the statement of claim that there had been a native arbitration by the panel headed by the Supreme Head of Ekpeye Kingdom where it was adjudged that the 1st and 2nd defendants’ family of Abubogele was the Nye-Nwe-Ele of Ahoada and therefore entitled to hold the main Owhor-Ele-Ehuda as against the plaintiffs’ family. It follows therefore restraining the 1st defendant from parading Nye-Nwe-Ele which he had so held out and so paraded himself for upwards of twenty years will not only be unjust but amounts to entering judgment for the respondents before leading evidence in the case, because the issue to be decided by the court is whether the recognition given to the 1st defendant as the Nye-Nwe-Ele of Ahoada was null and void. I think the better approach should have been to maintain status quo and hold the recognition valid until it is set aside or nullified after hearing evidence from the parties.

And finally on the point the court below said in the same vein at page 181:

“This submission is misplaced because the 1st defendant having been duly recognized as Nye-Nwe-Ele had been acting such since 1981 what the learned trial Judge restrained was clearly a completed act. In Ajewole v.Adetimo (1996) 2 NWLR (Pt.431) 391 the Supreme Court held that when a court is asked to restrain a party from doing an act pending a decision in a matter before it, but the act has been done, no order to restrain will be made because what is sought to be restrained had been completed. See also the case of John Holt (Nig.) Ltd. v. Holts African Workers Union (1963) 1 All NLR 279, (1963) 2 SCNLR 383 and Ayorinde v. Attorney- General of Oyo State (supra)”.