Lawrence Elendu & Ors Vs Felix Ekwoaba & Ors (1998)

LAWGLOBAL HUB Lead Judgment Report

ONU, J.S.C.

This is an appeal from the decision of the Court of Appeal holden at Port Harcourt (Coram: Katsina-Alu, Edolie and Onalaja, JJ.C.A.) which on the 6th day of December. 1994 upheld the judgment of the High Court of Imo State, Mbano-Etiti Judicial Division holden at Etiti to the effect that the plaintiffs/respondents had proved their case on the balance of probability. The case which was ostensibly not contested on the constitutional rights of freedom of association but rather based on a hybrid of facts involving the customary law as to whether a new village, apart from the seven existing ones known and called Dike-Na-Ofeiyi, had been created after due customary processes by excising same from the old (existing) village constituting an autonomous community of Osu Owerre Community council in Mbano Division of Imo State. The respondents herein, called Ezihe Development Union. Applied for leave of the trial court pursuant to Order IV, High Court Rules, Cap. 61 of the Laws of Eastern Nigeria, 1963 applicable to Imo State to institute the action leading to the appeal herein, for themselves and as representatives of Ezihe Development Union in the trial court presided over by Pats-Acholonu, J. (as he then was), against the appellants herein, then the three sets of defendants – the first set being sued for themselves and as representing the purported Dike-Na-Ofeiyi Development Union, the second set as representing the Oha-Ndi-Nze Osu Owerre while the third were sued for themselves and as representing the Osu Owerre Development Union.

Shortly put, plaintiffs/respondents who I shall in the rest of this judgment refer to simply as respondents, claimed the following reliefs against each set of defendants/appellants (hereinafter called appellants) jointly and severally for:-

“(1) A declaration that Umudike and Ofeiyi are kindreds and Wards 10 and 12 respectively in Ezihe (formerly Umuokpukpara) Village in Osu Owerre Autonomous Community of Imo State.

(2) A declaration that there is no eight (sic) village known as and called Dike-Na-Ofeiyi Osu-Owerre Autonomous Community of Imo State which consists of seven villages.

(3) Perpetual injunction restraining the defendants by themselves, through their servants and/or agents from the eight (sic) village known as and called Dike-Na-Ofeiyi in Osu-Owerre Autonomous Community.”

Both parties applied and were granted leave to amend the statements of claim and defence respectively, while the reply to the statement of defence was subsequently filed.

Ten witnesses in all testified for the respondents while three witnesses were called in support of the appellants’ defence. Several documents were tendered as exhibits in support of the cases of both parties at the hearing of the suit, following which, in what I consider to be a well considered judgment dated the 8th day of October, 1990, the learned trial Judge entered judgment against the appellants for all three reliefs claimed by the respondents.

Appellants being dissatisfied with the trial High Court’s judgment, appealed to the Court of Appeal, Port Harcourt Division (hereinafter in the rest of this judgment referred to shortly as the court below). On 6th December, 1994, as hereinbefore stated, the court below, in a considered judgment, dismissed the appellant’s appeal by affirming the decision of the learned trial Judge. The appellants being further dissatisfied with this decision, filed an appeal against the lower court’s decision on three grounds of appeal contained on pages 597 to 601 of the records of appeal herein.

The parties later duly filed and exchanged briefs of argument as required by the rules of this court. The appellants in their brief, in consonance with their grounds of appeal and at the instance of their counsel, submitted the following three issues (the same which the respondents in their brief adopted) as arising for the determination of this court in this appeal.

They are:-

“(a) Whether the Court of Appeal was right in holding that the respondents had locus standi to institute the action in the High Court having regard to the failure by the respondents (Ezihe Development Union) to fulfill the conditions precedent for their action to lie in a representative capacity and the capacity in which the said respondents actually prosecuted their claim to judgment in the trial court leading to the present appeal.

(b) Whether the Court of Appeal was right in affirming the trial court’s decision awarding suo motu to the respondents injunctive relief of wider scope to that claimed by the respondents.

(c) Whether the Court of Appears decision was right in law having regard to: