Onun Otu Echu Igiriga V. Elder Effiong Okon Bassey & Ors. (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UZO I. NDUKWE-ANYANWU J.C.A., (Delivering the Leading Judgment)

This is an appeal against the judgment of the High Court of Cross River State sitting in Akamkpa delivered on 7th day of July, 2009 in suit No.HK/1/2009. The Appellant as plaintiff took out a writ against the Respondents as defendants and claimed the following:

“1. Declaration that the 1st Defendant not being a Traditional Ruler within the contemplation of the Traditional Rulers Law of Cross River State has no legal or traditional authority to perform the functions of a Traditional Ruler.

2. A DECLARATION that the Claimant is the duly certificated and recognized Clan Head of Adim and Onun Usor of Adim (Onun Arum).
3. AN ORDER setting aside the document titled, “the indigenous concerned citizens peace committee of Adim, Biase Local Government Ares of Cross River State of Nigeria resolutions reached and recommendations at a general meeting of Adim people held at the village square (Ogbusor) in Adim on the 6th of December, 2008″, for not being the resolution of Adim people and for being illegal, malicious and contrary to the Traditional Rulers Law of Cross River State.
4. AN ORDER OF PERPETUAL INJUNCTION restraining the defendants, particularly the 1st defendant from taking over the functions of the claimant and from performing any of the functions or duties of Onun Arum or Choirman of Adim Town Council, as contained in the purported resolution of 6th December, 2008, which are the traditional functions, duties and responsibilities of the claimant as a Clan Head of Adim or Onum Usor of Adim (Onun Arum) or Chairman, Adim Town Council.
5. AN ORDER OF PERPETUAL INJUNCTION restraining the defendants, either by themselves, agents, assigns, or servants from interfering with the performance of the claimant’s traditional and/or statutory functions and duties as the Clan Head of Adim or Onun Usor of Adim (Onun Arum), or in any way or manner from harassing, intimidating or disturbing the claimant in the performance of his duties as the Clan Head of Adim.
6. AN ORDER SETTING ASIDE ALL THE ANNOUNCEMENT made by the defendants, their agents, servants, and assigns, purporting to dethrone the claimant as the Clan Head of Adim and Onun Usor of Adim or Onun Arum.
7. The sum of Fifty Million Naira (N50,000,000.00) only being damages for the injury, humiliation and for the unlawful interference with the traditional and statutory functions and responsibilities of the claimant by the defendants.”

Upon service of the writ of summons and other processes on the Respondents as defendants, they entered a conditional appearance on 27th day of February, 2009. On 10th day of March, 2009 the Respondents filed o motion on notice seeking on order to set aside the writ of summons on two alternative grounds namely:

“(a) The writ of summons does not comply with the mandatory requirements of Order 8 rule 2(1) and (3) of the High Court (Civil Procedure) Rules;

(b) The mode of commencing the action is not by writ of summons, pursuant to Order 7 rule 1(a) and (c), but by way of application for Judicial Review under Order 40 rule 1(2) and (sic) of the High Court (Civil Procedure) Rules, 2004.”

See page 47 of the record.

In support of this motion is a 4 paragraphs affidavit. Also filed is a written address. The Appellant filed his Reply to the Preliminary Objection on 17th day of March, 2009. A rejoinder was filed by the Respondents on 24th day of March, 2009 on points of law. The addresses were adopted by both parties on

30th day of March, 2009. On the 7th day of July, 2009 the learned trial Judge delivered his considered “Final Ruling” striking out the Appellant’s writ of summons. The main thrust of his judgment was that:

‘(i) The appellant did not seal the writ of summons with the seal of the High Court of Cross River State in accordance with Order 8 rule 2(1) and (3) of the High Court of Cross River State (Civil Procedure) Rules,

2008.

(ii) He did not commence the suit by way of judicial review as provided in Order 40 rule 2(b), (c) of the same Rules.”

Being dissatisfied, the Appellant filed his notice with three grounds of appeal. The Appellant filed his Appellant’s brief and articulated two issues for determination as follows:

“1. Whether the decision of the learned trial Judge striking out the appellant’s suit because he failed to seal the writ of summons is not a technical and mechanical interpretation and application of the provisions of Order 8 rule 2(1) of the High Court of Cross River State (Civil Procedure) Rules, 2008? (Grounds 1 and 3).