ODEGBO & ORS v. MOFUNANYA & ORS

CITATION: (2016) LPELR-42107(CA)

In the Court of AppealIn the Enugu Judicial Division

Holden at Enugu

ON THURSDAY, 10TH NOVEMBER, 2016Suit No: CA/E/322/2012

Before Their Lordships:

HELEN MORONKEJI OGUNWUMIJU Justice, Court of AppealIGNATIUS IGWE AGUBE Justice, Court of AppealTOM SHAIBU YAKUBU Justice, Court of Appeal

Between1. IGWE ROWLAND MADUKOLU ODEGBO2. MR. A.B.C. ONWUAGANA3. HON. P.C. NWEKE4. MR. GABRIEL ISIDIENU

- Appellant(s)

And1. CHIEF B.S.C. MOFUNANYA(For the 15 man AKADIANAS Committee - Kingmakers of Nteje Community)2. DR. BARR. CHARLES EMENOGHA ADUAKA3. CHIEF CLEMENT U. OBI4. MR. JIDEOFOR OKUH(For themselves and as representing members ofNteje Development Union and Nteje Communityexcepting Rowland Madukolu Odegbo, Hon. P. C.Nweke, Chief A.B.C. Onwuagana, Gabriel Isidienu)

- Respondent(s)

RATIO DECIDENDI

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1. EQUITABLE REMEDY - MANDATORY INJUNCTION: Nature of a mandatory injunctionand its purpose"...I am bold to say that no Court or Tribunal worth its salt would look the other way andwith askance do nothing to any party in a pending action before it, who takes any stepto foist a fait accompli on the Court. And that is where the essence of a mandatoryinjunction comes into play. The principle of mandatory injunction, being rooted inantiquity was laid down by KAY, J., in Daniel v. Ferguson (1891) 5 CH. 27 at 30, where itwas succinctly stated that: "The question to be decided at the trial may be of somenicety; but this is not the time to decide them. After the defendant had received noticeon Saturday that an injunction was going to be applied for, he set a large number ofmen to work, worked all night and through nearly the whole of Sunday, and by Mondayevening at which time he received notice of an interim injunction, he had run up hiswall to a height of thirty-nine feet. Whether he turns out at the trial to be right orwrong, abuilding which he has erected under such circumstances ought to be at once pulleddown, on the ground that the erection of it was an attempt to anticipate the order ofthe Court. To vary the order under appeal would hold out an encouragement to otherpeople to hurry on their buildings in the hope that when they were once up, the Courtmight decline to order them to be pulled down. I think that this wall ought to be pulleddown now without regard to what the result of the trial may be." The Supreme Court inShinning Star Nig. Ltd & Anor v. ASK STEEL Nig. Ltd (2011) 1 SCNJ 31 at 57, per hisLordship, Onnoghen, J. S. C., put it more clearly, that: "In exercising its power to grantmandatory injunction, the Court is primarily concerned with the invocation of itsdisciplinary jurisdiction to prevent its jurisdiction to try the case before it from beingfrustrated or stultified." In his own contribution, Muntaka - Coomaise, J. S. C. At page 64of the report, reiterated that: "Where the restorative mandatory injunction is invoked,to deal with the defendant who attempts to steal a match on the plaintiffs case, theCourt is not concerned with the merit of the plaintiffs case. The Court is concerned withthe invocation of its disciplinary jurisdiction to prevent its jurisdiction, to try the casebefore it, from being frustrated or stultified." Therefore, the essence of an order ofmandatory injunction is that it is a restorative order usually invoked by the Court andtargeted at a party who is disrespectful to the rule of law so that what that party hasdone would be undone, such that the parties to the action, would be restored to thestatus quo ante bellum, that is, they should be at the same level playing ground whichthey were, prior to the institution of the action at the trial Court. Further see: Ezegbu v.F. A. T. B. Ltd (1992) 1 NWLR (pt. 220) 699 at 724 - 725."Per YAKUBU, J.C.A. (Pp. 22-24, Paras. A-D) - read in context(2

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-4210

7(CA)

2. EQUITABLE REMEDY - INTERLOCUTORY INJUNCTION: Attitude of Court whenentertaining an application for interlocutory injunction in a chieftaincy matter"When an application for interlocutory injunction is sought pending the determinationof the substantive suit, the Court exercises its discretionary powers in granting orrefusing such interlocutory injunctions having regard to the affidavit evidence placedbefore it. The discretion of the Court is one which must be exercised judicially andjudiciously. Judicially being the application of the law and judiciously; the carefulconsideration of the facts and circumstance. The Supreme Court has established adichotomy in the determination of interlocutory applications in Chieftaincy matters.Where some necessary steps are yet to be taken to give finality to the fitting of avacant stool, the Court would grant an injunction restraining the acts from beingcarried out pending the determination of the suit. However, once the installationprocess has been completed and a Traditional ruler has been rightly or wronglyinstalled, the Court should not, in my humble view, in an interlocutory application, asksuch Traditional Ruler to vacate the stool pending the determination of the suit. Even ifthe Traditional Ruler loses the suit at the trial Court, an application for stay of executionof the judgment ought to be granted as a matter of course. In Salawu OlagunjuAdeyeye v. Alhaji Ajiboye (1987) 3 NWLR (Pt. 61) 432, an action was filed challengingthe installation of the Onijagbo of ljagbo. The High Court dismissed the action. ThePlaintiff/Appellant lodged an appeal against the decision and the Court of Appeal,Kaduna allowed the appeal. An application for stay of execution of the judgment wasrefused by the Court of Appeal. In a further application for stay of execution to theSupreme Court, Aniagolu JSC had this to say; "Accordingly, the judgment of the Court ofAppeal is hereby stayed pending the said determination of this appeal. Above all, it isnecessary to maintain peace in the area and this can best be done if matters are left asthey are until this Court decides the issues in the appeal. " In an unreported decision ofthe Supreme Court in Appeal No. SC/190/1997 delivered on 07/12/1998 between ObaOlufemi Fasade v. Prince Akande Tanimowo Gbadebo, the plaintiffs who wereappellants at the Court of Appeal sued the respondents claiming among others adeclaration that the nomination and/or selection of the 1st defendant as the Owa oflgbajo elect is contrary to the procedure of nomination and selection in the ChieftaincyDeclaration of Aringbajo of lgbajo and is therefore null & void. The trial judge dismissedthe case of the plaintiff and the 1st defendant was installed as the Owa of lgbajo. Theappellant, dissatisfied with the judgment, proceeded on appeal and was successful. Inspite of precedents, the Justices of the Court of Appeal refused the application for stayof execution of the judgment. In essence, the Oba was to vacate the throne pendingthe determination of the appeal to the Supreme Court. The Supreme Court held inunanimously granting the application for stay of execution of the judgment of the Courtof Appeal that a Traditional Ruler will not, on an interlocutory application, vacate thestool pending the determination of an appeal.The above compellingly confirms the consistency of the Apex Court in its view that aTraditional Ruler will not be de-facto removed pending the determination of asubstantive suit or Appeal. In Oyeyemi v. lrewole Local Government (1993) 1 NWLR Pt.270 Pg. 462, the Supreme Court held that the whole purpose of an order to maintainstatus quo is to preserve the res in the litigation from being wasted, damaged orfiltered away with the result that if the action succeeds, the result would be nugatory inthat the successful party would reap an empty judgment."Per OGUNWUMIJU, J.C.A. (Pp.28-31, Paras. E-F) - read in context

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3. PRACTICE AND PROCEDURE - ABUSE OF COURT/JUDICIAL PROCESS(ES):Whether an attempt to present the Court with a fait accompli would be an abuse ofCourt process"There is no doubt that both the litigants and the Government must respect the Courts.When there is ongoing litigation, nothing must be done by either party as was done bythe Appellant to foist a fait accompli on the Court."Per OGUNWUMIJU, J.C.A. (P. 33, Paras. A-B) - read in context

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TOM SHAIBU YAKUBU, J.C.A. (Delivering the Leading

Judgment): This appeal is sequel to the ruling rendered

upon an application mandatory injunction at the instance of

the respondents against the 1st appellant, by J. I. Nweze, J,

of the Anambra State High Court of justice, holden at

Atuocha, on 18th June, 2012.

The respondents, having taken out a writ of summons

against the appellants with respect to the chieftaincy and

traditional title of Igwe of Nteje community of Oyi Local

Government Area of Anambra State, had vide their

amended statement of claim, filed on 24th February, 2012,

at Paragraph 41 thereof, sought some declaratory and

injunctive reliefs against the appellants.

The grouse of the respondents, in their claim is that upon

the demise of the late Igwe S. A. C. Nnaemeka, the Aborgu

I of Nteje who hailed from Ezi Quarter in Nteje,

a referendum was conducted on 28th December, 2009 in

order for the community to select a new lgwe of Nteje. That

at the said referendum, the two candidates who contested

for the lgweship of Nteje were - Dr. Barr. Charles Aduaka -

2nd plaintiff/respondent herein and Hon. P. C. Uyanwa who

later stepped down for Dr. Barr.

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Charles Aduaka. Therefore, the latter was unanimously

elected as the new Igwe of Nteje. Thereafter, the new lgwe

elect was presented to the Nteje Community by the

AKADIANAS, the Kingmakers on the 2nd day of January,

2010.

Furthermore, the respondents averred that the Igwe elect

was presented to the Secretary of Oyi Local Government,

on 12th January, 2010 and that instead of the latter to

recognise their new lgwe elect, the Anambra State

Government, instituted a Caretaker Committee for the

Nteje Community which according to them, is unknown to

the Nteje Development Union and that the said Caretaker

Committee was foisted on the Nteje Community so that a

wrong person such as the 1st appellant would be installed

as the lgwe of Nteje Community.

The respondents, therefore, at Paragraph 41 of their

amended statement of claim averred, to wit:-

"41. Wherefore the Plaintiffs claim against the Defendants

as follows:-

i. DECLARATION that it is the Nteje Community under the

auspices of Nteje Development Union that has the right to

select one of its members as Igwe elect to be presented to

the Secretary of the Oyi Local Government in this case, the

Head

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of Administration of the Oyi Local Government for the

ultimate recognition by Anambra State Government.

ii. DECLARATION that the Nteje Development Union has

exercised their right of selecting an Igwe elect in the

person of Dr. Barr. Charles Aduaka.

iii. DECLARATION that the 2nd and 3rd defendants have no

right to select or present themselves or the 1st defendant

as the Igwe elect of Nteje to the Oyi Local Government,

Anambra State Government or to any other authority.

iv. DECLARATION that the Nteje Development Union has

no crisis to warrant its dissolution or any appointment of a

caretaker committee by Anambra State Government to take

over or run the affairs of the Nteje Development Union

particularly with respect to selecting or presenting the

Igwe elect.

v. DECLARATION that the purported dissolution of the

executive committee of Nteje Development Union and the

subsequent setting up of a purported caretaker committee

to run the affairs of the Nteje Development Union is

undemocratic, unjustifiable, null and void and of no effect

whatsoever.

vi. AN ORDER OF INJUNCTION restraining the 1st - 4th

defendants, their servants, agents, privies

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and/or cohorts from parading themselves as members of

the executive committee of Nteje Development Union or as

persons entitled to select and/or present a new lgwe for the

Nteje Community.

vii. AN ORDER restraining the 1st defendant from parading

himself or presenting himself or allowing himself to be

presented as the person selected as the lgwe elect of Nteje

Community either to Oyi Local Government or Anambra

State Government of Nigeria.

viii. AN ORDER restraining the Oyi Local Government

and/or Anambra State its servants, agents, or workers from

recognizing, or relating with 1st defendants as an lgwe

elect of Nteje or with any other person as such save the

2nd plaintiff who has been so selected.

ix. AN ORDER OF INJUNCTION restraining all or any

member of the purported caretaker committee, their

servants, agents, privies and their cohorts from usurping,

taking over and/or in any manner whatsoever, interfering

with the function of the executive committee of the Nteje

Development Union led by the 3rd and 4th plaintiffs, or the

functions of the 1st plaintiff particularly with respect to the

selection of the 2nd plaintiff as the Igwe elect of

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Nteje.

x. AN ORDER OF MANDATORY INJUNCTION compelling

the 5th Defendant, Oyi Local Government, to perform its

statutory duty of presenting Dr. Charles Emenogha Aduaka,

the new Igwe Aborgu II Nteje to the Anambra State

Government."

On their part, the appellants denied the respondents' claim

and consequently filed their statement of defence and

counter claim on 30th September, 2012, contained at pages

3 to 16 of the Additional Record of appeal compiled by the

respondents. The contention of the respondents is that

upon the demise of lgwe S. A. C. Nnaemeka who hailed

from Ezi Nteje, in 2007, it became the turn of lkenga Nteje

to produce the next Igwe of Nteje and that the stool of Igwe

of Nteje being not hereditary, was rotational among the

three quarters of Ezi, lkenga and Ifite. They averred that on

11th July, 2009, three persons - Chief lkechukwu

Okechukwu, Chief Peter Uyanwa and Chief Rowland

Odegbo were voted for by Ikenga Nteje people, whereof the

latter having obtained the majority of votes cast, was

elected as the new lgwe of Nteje. Furthermore, that upon

the presentation of the 1st appellant by the Ikenga quarter

to the entire Nteje Community on

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25th July, 2009; the Nteje Development Union (NDU) on

27th July, 2009 notified the Government of Anambra State

and requested for the approval and recognition of the 1st

appellant as the new Igwe of Nteje.

The appellants, at Paragraph 6 of the counterclaim at pages

15 to 16 of the Additional record of appeal, averred inter

alia:

"6. WHEREFORE, the counter-claimants claim against the

defendants as follows:-

a) Declaration that by virtue of the Constitution of Nteje

Development Union, it is the turn of Ikenga Nteje Quarter

to produce an Igwe in succession to the last lgwe of Nteje

H. R. H. S. A. C. Nnaemeka.

(b) Declaration that by virtue of the said Constitution,

Ikenga Nteje Quarter by democratic method elected and

presented an Igwe Elect to the entire Nteje Community.

(c) Declaration that Chief Rowland Madukolu is the person

lawfully elected by lkenga Nteje as the next Igwe of Nteje

in succession to the last Igwe of Nteje H. R. H. S. A. C.

Nnaemeka.

(d) Declaration that pursuant to the Constitution of Nteje

Community, Dr. Barr. Charles Emenogha Aduaka was never

lawfully elected or selected by Ikenga Nteje Quarter and

was not

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presented by the said quarter to Nteje Community as the

next lgwe of Nteje in succession to H. R. H. Igwe S. A. C.

Nnaemeka.

(e) Order of Perpetual Injunction restraining Dr. Barr.

Charles Emenogha Aduaka from further parading himself

as the lgwe Elect of Nteje.

(f) Order of Perpetual Injunction restraining the defendants

to this counter claim whether by themselves or by their

agents, servants or proxies from presenting Dr. Barr.

Charles Emenogha Aduaka as the lgwe Elect to any

relevant authority of the Anambra State Government for

the purpose of his being recognized as the lgwe of Nteje."

The respondents, in a motion on notice dated 3rd January,

2012 and filed on 5th March, 2012 prayed for mandatory

injunctions and a restraining order against the 1st

appellant, in the following terms:

"(A) AN ORDER OF MANDATORY INJUNCTION setting

aside the purported recognition as the Igwe Ntje procured,

received and/or accepted by the 1st defendant/respondent

(Mr. Rowland Madukolo Odegbo) from the Anambra State

Government during the pendency of the action before this

Honourable Court.

(B) AN ORDER OF MANDATORY INJUNCTION setting

aside the purported

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acceptance of the certificate of recognition by the 1st

defendant/respondent (Mr. Rowland Madukolo Odegbo) as

the lgwe Aborgu II Nteje from the Anambra State

Government.

Or

(C) AN ORDER OF MANDATORY INJUNCTION setting

aside any act or acts of the 1st defendant/respondent (Mr.

Rowland Madukolo Odegbo) made or assumed in

furtherance of the said acceptance of the certificate of

recognition from the Anambra State Government pending

the hearing and determination of the substantive suit.

(D) AN ORDER OF MANDATORY INJUNCTION setting

a s i d e t h e p u r p o r t e d c o r o n a t i o n o f t h e

1st defendant/respondent (Mr. Rowland Madukolo Odegbo)

as the lgwe Aborgu II Nteje based on the alleged

recognition granted the 1st respondent by the Government

of Anambra State, during the pendency of this action.

(E) AN ORDER restraining the 1st defendant/respondent

from parading, holding himself out and/or in whatsoever

manner acting as the Igwe Aborgu II Nteje pending the

hearing and determination of the substantive suit.

(F) FOR SUCH FURTHER ORDER or other order as the

Honourable Court may deem f it to make in the

circumstances.”

The respondents, in the

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affidavit filed in support of the motion on notice aforesaid,

deposed to certain facts to the effect that the 1st appellant

falsely presented himself to the Anambra State

Government, after the parties had joined issues as to the

rightful successor to the throne of Igwe Nteje and also that

the Anambra State Government allegedly recognized the

1st appellant as the lgwe Nteje, when this action was

already pending in Court. Furthermore the affidavit

evidence chronicled certain steps and communications

issued out by the 1st appellant, while the action was

pending, to the effect that he is the "duly recognized

traditional ruler of Nteje Community and Aborgu II na

Nteje."

In his counter-affidavit filed on 12th March, 2012, in

opposition to the respondents' motion on notice for

mandatory injunctions, the 1st appellant deposed to the

fact that pursuant to his presentation to the Nteje

Community and the Oyi Local Government, the latter then

forwarded his name to the Anambra State Government for

him to be recognized and he was duly recognized and

issued with a certificate of recognition by the Anambra

State Government. That thereafter his coronation as the

lgwe

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Nteje was performed and the same was well attended by

Nteje Community.

On the same 12th March, 2012, that the 1st appellant filed

his counter affidavit aforementioned, the appellants filed a

Notice of Preliminary Objection against the hearing of the

respondents' action, on the ground that the respondents

had no locus standi to have instituted the action against the

appellants.

The learned trial judge in his consideration of the

respondents' motion on notice for mandatory injunctions,

granted the application on 18th June, 2012 and restrained

the 1st appellant from parading himself and acting as the

traditional ruler, Igwe Aborgu II of Nteje, pending the

determination of the substantive suit, which is the subject

matter of this appeal. It is noteworthy that the learned trial

judge, in a separate ruling delivered on the same 18th June,

2012, dismissed the appellants' preliminary objection

against the hearing of the respondents' action. However,

there was no appeal laid against that decision.

In order to prosecute the appeal, the appellants' brief of

argument, settled by O.R. Ulasi, SAN, was dated 18th July,

2014 but filed on 8th August 2014. The

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same, was with leave of this Court, deemed as properly

filed on 18th February 2015. A sole issue was nominated

therein, for the determination of the appeal, thus:

Whether in the circumstances of this case, the learned trial

judge was right to grant the motion for injunction against

the 1st appellant? (Ground 3).

The Respondents' brief of argument, settled by Arthur Obi

Okafor, SAN, FCI Arb., was dated 3rd March, 2015 but filed

on 4th March, 2015. He also nominated a sole issue

therein, for the determination of the appeal, to wit:

Whether in the circumstances of this Appeal, the learned

trial Judge was right in the restorative orders it made

against the 1st Appellant.

In response to the respondents' brief of argument, the

appellants' reply brief of argument, was dated and filed on

11th March, 2015.

Having perused all the processes filed and exchanged

between the parties and the circumstances of this matter, I

prefer the sole issue formulated by the respondents for the

determination of the Appeal and so I endorse it in

considering this appeal.

It is the contention of the learned senior counsel to the

appellants that the exercise of the

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discretion by the learned trial judge in granting the

mandatory injunctions against the 1st appellant was not

judicially and judiciously made, in view of the materials

placed before the Court. He referred to Ezebilo v.

Chinwuba (1997) 7 NWLR (pt. 511) 108. He also

contended that the reliefs or issues sought by the

respondents cannot be granted or considered at an

interlocutory stage which ordinarily should be considered

or granted in the substantive suit. He referred to Williams

v. Dawodu (1988) 8 NWLR (pt. 87) 189; Kotoye v. CBN

(1989) 1 NWLR (pt. 98) 419; Obeya v. A. G. Federation

(1987) 3 NWLR (Pt. 60) 235.

Furthermore, it is his submission to the effect that the main

purpose of a mandatory injunction is to deal with a

defendant who wants to steal a match on the plaintiff. He

referred to Daniel v. Ferguson (1891) 5 CH. 27 at 30

and that in granting a mandatory injunction, the Court

must consider:-

(a) Whether in the circumstances as they exist after the

breach, a mandatory order could issue and if so,

(b) What kind of mandatory order will produce a fair result;

(c) The benefit which the order will confer on the plaintiff

and the

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detriment which it will cause the defendant

(d) A plaintiff should not be permitted to insist on a form of

relief which will confer no appreciable benefit on himself

and will be materially detrimental to the defendant. He

relied on A. G. Anambra State v. Okafor (1992) 2

NWLR (pt. 224) 396.

Referring to Paragraphs 13, 14 and 15 of the respondents'

motion on notice for mandatory injunction against the

appellant vis-a-vis Paragraph 6 (e) of the appellants'

counter affidavit, he submitted that since the mandatory

injunction was targeted at stopping the presentation of the

1st appellant to the Anambra State Government and the

recognition of the 1st Appellant by the said Government

pending the determination of the substantive suit, there

was affidavit evidence by the appellants that the 1st

appellant had been so presented to the Government vide

Exhibits IRO 1 and IRO 2 of 25th and 27th July, 2009,

before the action was filed by the respondents on 12th July,

2010. He therefore submitted that no injunction can be

issued and lie against a completed act, placing reliance on

CBN v. Industrial Bank Ltd (1997) 9 NWLR (pt. 912)

720. He also submitted that since

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the Anambra State Government which recognized the 1st

appellant was not made a party to the action, no injunction

could lie against it. He relied on Onyekwulunne v.

Ndulue (1997) 7 NWLR (pt. 512) 250.

The learned senior counsel, furthermore submitted that it

was the respondents who had the onus to prove by credible

evidence that the balance of convenience is in their favour,

placing reliance on Missini v. Balogun (1968) 1 All NLR

318; A. C. B. v. Awogboro (1996) 2 NWLR (pt. 176)

719 720. He insisted that a Court should not in an

interlocutory application order a traditional ruler who had

already been recognised or installed to vacate the stool

pending the determination of the suit against him, hence

the resolution of whether or not a traditional ruler was

properly recognized were better left to be determined at

the full trial and not by affidavit evidence in an application

for interlocutory injunction. He relied on Adeyeye v.

Ajiboye (1987) 3 NWLR (pt. 61) 432. Finally, he

submitted that since a chieftaincy is not a perishable

commodity, the grant of the interlocutory injunction against

the 1st appellant, in the circumstances of this case, instead

of the

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learned trial judge ordering an accelerated hearing of the

action was unfair. He referred to Gov. Of Imo State v.

Anosike (1987) 3 NWLR (pt. 66) 663; Gever v. Chima

(1993) 9 NWLR (pt. 315) 97.

In his responses to the appellants' arguments, the

respondents' learned senior counsel submitted to the effect

that it was wrong of the 1st appellant who without waiting

for the determination of the rightful person to ascend the

throne of lgwe Nteje, by the trial Court, to have received

and accepted his recognition by the Anambra State

Government and thereafter got himself coronated as the

lgwe Aborgu II of Nteje, despite the pendency of the suit

against him. He referred to Paragraph 19 of the

respondents' affidavit as against Paragraph 8 of the

appellants' counter affidavit in respect of the motion for

interlocutory injunction and submitted that the learned trial

judge was justified in granting the mandatory injunction

against the 1st appellant. It is also his submission, that

even if an aspect of the learned trial judge's decision was

incoherent, but the conclusion arrived at is justified, the

appellate Court will not set aside such a decision. He

placed

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reliance on Olubode v. Salami (1985) 2 NWLR (pt. 7)

282 at 294 & 298; Bello v. Fayose (1994) 2 NWLR (pt.

327) 404 at 415; Ukejianya v. Uchendu (1950) 13 W.

A. C. A. 45 at 46; Emmanuel Ayeni & Ors v. Williams

Sowemimo (1982) 5 S. C. 60 at 73-75, Odukwe v.

Ogunbiyi(1998) 8 NWLR (pt. 561) 339 at 350; Kwajafa

v. B.O.N. Ltd (1998) 1 NWLR (pt. 587) 432 at 437 - to

the effect that it is not every slip or error committed by a

judge in a judgment that can lead to a reversal of the

judgment, more so, as it is not the reasons given by the

judge but whether the decision itself is right that is of

utmost importance.

He also submitted that in the circumstances of this case,

the 1st appellant over-reached the proceedings at the trial

Court and stole the match against the respondents, hence

the grant of the mandatory injunctions against him was to

undo what he had done. He referred to Ivory Merchant

Bank Ltd v. Partnership Investment Ltd (1996) 5

NWLR (pt. 448) 362; Ojukwu v. Gov. Lagos State

(1985) 2 NWLR (pt. 10) 699 at 806. He insisted that

since the 1st appellant had no respect for the trial Court

where the respondents' action against him was

pending, the

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learned trial judge was justified to have issued the

mandatory injunction which was a restorative order, to

return the parties to the status quo ante bellum. He placed

reliance on Ohakim v. Agbaso (2010) 19 NWLR (pt.

1226) 172 at 228; Platinum Habib Bank Plc v. Tarri

Int. Ltd (2008) LPELR - 4855 (CA) 46 at 47.

Furthermore, it is his submission that in considering the

grant of a mandatory injunction, the Court is not concerned

with the merits of the plaintiffs case but more concerned

with the preservation of the integrity of the Court hence it

exercises its disciplinary jurisdiction against the defaulting

party. He referred to Daniel v. Ferguson (1891) 5 CH.

27 at 30; S.S.N. Ltd v. A. S. N. Ltd (2011) All FWLR

(pt. 578) 825 at 864; Ezegbu v. F.A.T.B. Ltd (1992)

1 NWLR (pt. 220) 699 at 724 - 725. And that in the

circumstances of this matter, the learned trial judge was

not ready to tolerate the 1st, appellant's acts of lawlessness

which cannot co-exist with what is lawful, placing reliance

on Akapo v. Hakeem - Habeeb (1992) 6 NWLR (pt.

247) 288 at 304 - 305.

Resolution:

There is no dispute between the parties with respect to the

filing of the

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action by the respondents at the trial Court on 12th July,

2010. There is also no dispute as to the fact that the 1st

appellant was presented to the Anambra State Government

and the latter issued him with a certificate of recognition

on 10th January, 2011. This fact is deduced from the

affidavit in support of the motion on notice by the

respondents at Paragraph 19 (vii) which cited Exhibit "D"

at pages 86 - 87 of the record of appeal. The said Exhibit D,

dated 7th June, 2011 is a letter written by the 1st appellant

to "All Age Grades; All Minor Wards, All Branches, NDU."

At Paragraph 2 thereof, it is said:

"When I was issued with a Certificate of Recognition by the

Anambra State Government on January 10, 2011, I chose

not to celebrate. I was mindful that the Igweship tussle has

created a divide and any celebration will be in bad taste.

Despite the encouragement from some of my supporters, I

restrained myself from celebrating for the sake of peace

and stability of Nteje."

It is noteworthy that Exhibit "D" was signed by the 1st

appellant as: "HRH Igwe Madukolu Rowland Odegbo,

Aborgu II na Nteje."

Indeed the various acts of the 1st appellant

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chronicled at Paragraph 19 of the affidavit in support of the

respondents' motion on notice were admitted by the 1st

appellant at Paragraph 8 of his counter affidavit, to the

effect that:

"8. The acts alluded to in Paragraph 19 of the affidavit in

support as done by me are acts done in relation to my stool

as the Igwe Nteje, Aborgu II."

In the circumstances, there is no pretence that the 1st

appellant had fully assumed the traditional office of Igwe

Nteje, Aborgu II, of Nteje Community during the pendency

of the action filed at the trial Court on 12th July, 2010,

which was yet to be heard and determined as to the rightful

person to ascend that throne, after the demise of the

deceased Igwe S. A. C. Nnaemeka.

The learned appellants' senior counsel, made a heavy

weather of the essence of Exhibits IRO 1 and IRO 2

attached to the appellants' counter affidavit against the

respondents' motion on notice. I have perused the said

Exhibits IRO 1 and IRO 2 which are cited at Paragraph 6

(2) of the counter affidavit at pages 107 - 108 of the record

of appeal. The said Exhibits IRO 1 and IRO 2 are contained

at pages 110 to 113 of the record of appeal. It is

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clear to me that whilst Exhibit IRO 1 was with respect to

the presentation of the lgwe elect of Nteje - Rowland

Madukolu Odegbo, to the Nteje Community by the Ikenga

Nteje Quarters, on 25th July, 2009, Exhibit IRO 2 was a

letter written by the Nteje Development Union dated July

27,2009, addressed to the Executive Governor of Anambra

State, which requested that the latter should approve and

recognise Chief Rowland Madukolu Odegbo as the Aborgu

II of Nteje.

It is clear to me that neither Exhibit IRO 1 nor Exhibit IRO

2 was tantamount to a recognition of the 1st appellant as

the Igwe of Nteje by the Anambra State Government.

Therefore, I am unable to see any incoherence in the

finding of fact made by the learned trial judge when he

stated at lines 12-14 at page 164 of the record of appeal,

that the 1st defendant was presented to the Government of

Anambra State for recognition as the Traditional Ruler of

Nteje before the respondents' action was instituted. This

was by a letter dated July 27, 2009. Hence, it is not in

doubt that the 1st appellant was presented to the Anambra

State, for recognition vide the letter dated July 27, 2009

which preceded and came

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earlier before the filing of the respondents' action on 10th

July, 2010. Of course, the action of the respondents was to

prevent the recognition of the 1st appellant as the Igwe

Nteje by the Anambra State Government.

I have demonstrated earlier in this judgment that by the 1st

appellant's own showing in Exhibit "D" attached to the

affidavit in support of the application, he was given

recognition by the Anambra State Government in 10th

January, 2010. Against that backdrop, it cannot be correct

to say that the motion on notice for interlocutory injunction

at the instance of the respondents against the

appellants was targeted at a completed act. NO. The said

motion on notice was targeted at frustrating or stopping

the recognition of the 1st appellant as the lgwe Nteje, by

the Anambra State Government.

The above notwithstanding, the 1st appellant having been

issued a Certificate of Recognition, by the Anambra State

Government on 10th January , 2011 which he gladly

accepted and assumed the traditional office of lgwe Nteje,

during the pendency of the respondents' action against

him, which bordered on the rightful person to ascend that

throne and he is a

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party to the said action, should the learned trial judge have

helplessly folded his arms and pitiably said that since the

1st appellant had ascended the throne, there was nothing

else he would do in the circumstances? I am bold to say

that no Court or Tribunal worth its salt would look the

other way and with askance do nothing to any party in a

pending action before it, who takes any step to foist a fait

accompli on the Court. And that is where the essence of a

mandatory injunction comes into play. The principle of

mandatory injunction, being rooted in antiquity was laid

down by KAY, J., in Daniel v. Ferguson (1891) 5 CH. 27

at 30, where it was succinctly stated that:

"The question to be decided at the trial may be of some

nicety; but this is not the time to decide them. After the

defendant had received notice on Saturday that an

injunction was going to be applied for, he set a large

number of men to work, worked all night and through

nearly the whole of Sunday, and by Monday evening at

which time he received notice of an interim injunction, he

had run up his wall to a height of thirty-nine feet. Whether

he turns out at the trial to be right or wrong, a

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building which he has erected under such circumstances

ought to be at once pulled down, on the ground that the

erection of it was an attempt to anticipate the order of the

Court. To vary the order under appeal would hold out an

encouragement to other people to hurry on their buildings

in the hope that when they were once up, the Court might

decline to order them to be pulled down. I think that this

wall ought to be pulled down now without regard to what

the result of the trial may be."

The Supreme Court in Shinning Star Nig. Ltd & Anor v.

ASK STEEL Nig. Ltd (2011) 1 SCNJ 31 at 57, per his

Lordship, Onnoghen, J. S. C., put it more clearly, that:

"In exercising its power to grant mandatory injunction, the

Court is primarily concerned with the invocation of its

disciplinary jurisdiction to prevent its jurisdiction to try the

case before it from being frustrated or stultified."

In his own contribution, Muntaka - Coomaise, J. S. C. At

page 64 of the report, reiterated that:

"Where the restorative mandatory injunction is invoked, to

deal with the defendant who attempts to steal a match on

the plaintiffs case, the Court is not concerned with the

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merit of the plaintiffs case. The Court is concerned with the

invocation of its disciplinary jurisdiction to prevent its

jurisdiction, to try the case before it, from being frustrated

or stultified."

Therefore, the essence of an order of mandatory injunction

is that it is a restorative order usually invoked by the Court

and targeted at a party who is disrespectful to the rule of

law so that what that party has done would be undone,

such that the parties to the action, would be restored to the

status quo ante bellum, that is, they should be at the same

level playing ground which they were, prior to the

institution of the action at the trial Court. Further see:

Ezegbu v. F. A. T. B. Ltd (1992) 1 NWLR (pt. 220) 699

at 724 - 725.

In short, once a party is aware of a pending Court process

and the 1st appellant herein cannot pretend to know of the

existence of the respondents' action against him, with

respect to the rightful person to ascend the throne of Igwe

Nteje, he was bound to be circumspect and not to have

accepted his certificate of recognition by the Anambra

State Government, which was not a party to the instant

action. And it was even worse of

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the 1st appellant to have got himself coronated as the Igwe

Aborgu II of Nteje, when the substantive action was yet to

be determined. I believe that if he had exercised prudence

and restrained himself from being coronated, just as he

restrained himself as he said in Exhibit "D" from

celebrating his recognition by the Anambra State

Government, perhaps he would have saved himself the

ordeal of being clamped with the mandatory injunction,

issued against him by the learned trial judge. It is said that

if you do not discipline yourself by refraining from doing

certain things which are controversial; then you will be

disciplined by a superior authority to refrain from doing

those things. Therefore, the 1st appellant could not have

eaten his cake and still expect to have it. He certainly got

his fingers burnt in the circumstances of this matter and

cannot now complain. One cannot play with the tail or head

of a snake and not be bitten by the snake. He deserves no

pity, at all. Instead he deserved to be disciplined and he got

it rightly from the trial Court.

In sum, I am satisfied that the learned trial judge rightly, in

my considered opinion, granted the

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mandatory injunction against the 1st appellant. Indeed, I

commend his Lordship, for not allowing the culture of

impugnity that pervades the Nigerian social and political

lives to infest the judicial institution which is firmly rooted

in confidence and integrity.

For, according to the revered Nnaemeka-Agu, J. S.C. (now

of blessed memory) in Akapo v. Hakeem - Habeeb

(1992) 6 NWLR (pt. 247) 288 at 305;

"..... law and lawlessness are strange bedfellows under the

rule of law."

In the end, I resolve the sole issue in this appeal, against

the appellants. The appeal is devoid of merits and it is

accordingly dismissed.

The ruling of NWEZE, J., of 18th, June, 2012, is hereby

affirmed.

Each side to bear own costs.

HELEN MORONKEJI OGUNWUMIJU, J.C.A.: l have had

the privilege of reading the judgment just delivered by my

learned brother TOM SHAIBU YAKUBU, J.C.A. I agree with

my learned brother that the appeal be dismissed as lacking

in merit. I will add a few words on my views on this matter.

I agree with the Learned trial judge that while an action is

pending before a Court of law, parties must refrain from

doing any such act that will

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render the judgment of the Court nugatory.

The argument of Respondent's counsel that the main

purpose for an application for mandatory injunction is

to deal with a defendant who wants to steal a match on the

plaintiff is also well founded in law. A party who is shown to

have so acted should be prepared to face the consequence.

In the affidavit filed in support of the application, the 4th

Respondent deposed in Paragraph 13 to the fact that the

1st Appellant falsely presented himself to the Government

of Anambra State as the lgwe of Nteje community during

the pendency of the suit which apparently was the crux of

the disagreement between parties at the trial Court.

Paragraphs 13 and 14 of the said affidavit at Page 68 of the

Record of Appeal are as follows: -

“13. That while the Applicants action is still pending

at the Otuocha high Court, the 1st Respondent falsely

presented himself as the Igwe of Nteje to the

Government of Anambra State.

14. That the 1st Respondent on the pretext of being

the Igwe elect of Nteje was purportedly issued with

certificate of recognition as the Igwe Nteje by the

Government of Anambra State.”

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In opposition, the 1st Appellant filed a counter affidavit on

12/03/2012, Paragraph 6(e) of which contains depositions

that before the suit was instituted; he had long been

publicly presented to Nteje people and the Government as

the lgwe elect. He retied on Exhibits IRO 1 and IRO 2

which were letters dated 25/07/2009 and 27/07/2009

respectively showing the said presentation to Nteje people

and the Government.

In his ruling, the learned trial Judge declared at page 164

of the Record of Proceeding:

"It will appear that before this suit was filed, the 1st

Defendant was presented to the Governor of Anambra

State for recognition as the Traditional ruler of Nteje.

This was by a letter dated July 27, 2009."

However, it is also clear from the Records that the

Appellant had not yet been formally recognized by the

Government of the State.

When an application for interlocutory injunction is sought

pending the determination of the substantive suit, the

Court exercises its discretionary powers in granting or

refusing such interlocutory injunctions having regard to the

affidavit evidence placed before it. The discretion of the

Court is one which must

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be exercised judicially and judiciously. Judicially being the

application of the law and judiciously; the careful

consideration of the facts and circumstance.

The Supreme Court has established a dichotomy in the

determination of interlocutory applications in Chieftaincy

matters. Where some necessary steps are yet to be taken to

give finality to the fitting of a vacant stool, the Court would

grant an injunction restraining the acts from being carried

out pending the determination of the suit. However, once

the installation process has been completed and a

Traditional ruler has been rightly or wrongly installed, the

Court should not, in my humble view, in an interlocutory

application, ask such Traditional Ruler to vacate the stool

pending the determination of the suit. Even if the

Traditional Ruler loses the suit at the trial Court, an

application for stay of execution of the judgment ought to

be granted as a matter of course.

In Salawu Olagunju Adeyeye v. Alhaji Ajiboye (1987) 3

NWLR (Pt. 61) 432, an action was filed challenging the

installation of the Onijagbo of ljagbo. The High Court

dismissed the action. The Plaintiff/Appellant lodged an

appeal

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against the decision and the Court of Appeal, Kaduna

allowed the appeal. An application for stay of execution of

the judgment was refused by the Court of Appeal. In a

further application for stay of execution to the Supreme

Court, Aniagolu JSC had this to say;

"Accordingly, the judgment of the Court of Appeal is

hereby stayed pending the said determination of this

appeal. Above all, it is necessary to maintain peace in

the area and this can best be done if matters are left

as they are until this Court decides the issues in the

appeal. "

In an unreported decision of the Supreme Court in Appeal

No. SC/190/1997 delivered on 07/12/1998 between Oba

Olufemi Fasade v. Prince Akande Tanimowo Gbadebo, the

plaintiffs who were appellants at the Court of Appeal sued

the respondents claiming among others a declaration that

the nomination and/or selection of the 1st defendant as the

Owa of lgbajo elect is contrary to the procedure of

nomination and selection in the Chieftaincy Declaration of

Aringbajo of lgbajo and is therefore null & void. The trial

judge dismissed the case of the plaintiff and the 1st

defendant was installed as the Owa of lgbajo. The

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appellant, dissatisfied with the judgment, proceeded on

appeal and was successful. In spite of precedents, the

Justices of the Court of Appeal refused the application for

stay of execution of the judgment. In essence, the Oba was

to vacate the throne pending the determination of the

appeal to the Supreme Court.

The Supreme Court held in unanimously granting the

application for stay of execution of the judgment of the

Court of Appeal that a Traditional Ruler will not, on an

interlocutory application, vacate the stool pending the

determination of an appeal.

The above compellingly confirms the consistency of the

Apex Court in its view that a Traditional Ruler will not be

de-facto removed pending the determination of a

substantive suit or Appeal.

In Oyeyemi v. lrewole Local Government (1993) 1

NWLR Pt. 270 Pg. 462, the Supreme Court held that the

whole purpose of an order to maintain status quo is to

preserve the res in the litigation from being wasted,

damaged or filtered away with the result that if the action

succeeds, the result would be nugatory in that the

successful party would reap an empty judgment.

It is my humble but firm view that

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due to the important roles played by Traditional Rulers in

our society and the attendant ignominy and likelihood of

breach of peace when someone who has been installed by

Government whether rightly or not is substantively

dethroned by an order of injunction against him,

Chieftaincy matters should, in line with the reasoning and

consistent attitude of the Supreme Court, be given

accelerated hearing by our Courts and injunctions of this

sort should be utterly discouraged.

I have conceded to the conclusion reached by my learned

brother because the Appellant was not formally recognized

until after the matter was instituted in Court. Therefore

there were still steps to be taken to fulfill the installation

procedure. The Appellant knew that the suit was pending

before he presented himself for recognition and was

recognized by the Anambra State Government.

I have to state that a Chieftaincy stool is not a perishable

res and the tenure of Chieftaincy stools are generally for

life, there is no need for haste. Since longevity of office is

assured, contenders should be patient to fully exhaust the

judicial process before assuming the stool, once and for all

and

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most importantly, in peace, not in bits and pieces with

injunctions here and there.

There is no doubt that both the litigants and the

Government must respect the Courts. When there is

ongoing litigation, nothing must be done by either party as

was done by the Appellant to foist a fait accompli on the

Court.

In any event, in the circumstances of this case, I have no

reason to disagree with the conclusions of my learned

brother. The ruling of the learned trial judge is hereby

affirmed. I make no order as to costs.

IGNATIUS IGWE AGUBE, J.C.A.: I have had a preview

while in draft of the lead judgment of my learned brother

TOM SHAIBU YAKUBU, JCA. My noble Lord has admirably,

lucidly and meticulously dealt with and determined the sole

issue raised and canvassed in this appeal.

Thus, I also agree in its entirety with his reasoning and

conclusion arrived in the said Judgment inclusive of the

orders made therein.

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Appearances:

O.R. Ulasi, SAN with him, K.O. Kama, Esq. and K.U. Okonkwo, Esq. For Appellant(s)

Kalu Onwuchekwa, Esq. For Respondent(s)

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