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Apostle (Chief) T. Bassey & Ors V. Chief Alex Ekeng & Ors. (CA/C/395/2014  • 7 Dec 2016)

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➥ CASE SUMMARY OF:
Apostle (Chief) T. Bassey & Ors V. Chief Alex Ekeng & Ors. (CA/C/395/2014  • 7 Dec 2016)

by Branham Chima (LL.B.)

➥ SUBJECT MATTER(S)
Interlocutory orders.

➥ CASE FACT/HISTORY
The Respondents in this appeal who were Claimants at the trial Court, are members of Kparika Obasi Royal Family in Idundu Clan. The Appellants on the other hand, were members of Namburi Mboto Royal Family of Idundu Clan up to 2011 when that Royal Family was split into Edim Ita, Orok Asi Oqua and Otop Oqua Oyom Royal families.

The 1st Appellant was later selected by the Idundu Royal Fraternity in 2001 as the Ntoe-Elect of Idundu Clan. The 3rd, 4th and 5th Appellants were also selected as Village Heads of their respective villages all in Idundu clan. The Appellants occupied the above offices until the 24th of October, 2013 when the Respondents filed this suit praying for numerous reliefs as per their writ of summons and statement of claim. The Appellants in turn filed their statement of defence.

The Respondents in addition, filed a motion on notice on the same 24/10/13 praying for orders of interlocutory injunction among which was to restrain the 1st Appellant from acting as the Clan Head-Elect of Idundu Clan, also there was a prayer to restrain the 3rd, 4th and 5th Appellants from acting as village Heads-Elect for their respective villages.

The Respondents later presented one Chief Francis Edim Imona as the Clan Head-Elect of the Idundu Clan.

After the filing of affidavit in opposition and further and Better Affidavit respectively, the application for interlocutory injunction was moved on the 13th of May, 2014. In a considered Ruling delivered on the 9th of June, 2014, the Learned trial Judge granted all the prayers sought by the Respondents. This appeal is predicated on that Ruling particularly the 2nd and 3rd orders of interlocutory injunction.

Available:  A.U. Deduwa & Ors. v. The State (1975)

➥ ISSUE(S)
I. Whether in the circumstances of this case the Learned trial Judge was right to grant orders of interlocutory injunction to restrain the Appellants from continuing to act in their respective chieftaincy offices pending the determination of this suit?

➥ RESOLUTION(S) OF ISSUES
[APPEAL ALLOWED]

↪️ ISSUE 1: IN APPELLANT’S FAVOUR.

[THE COURT SHOULD REFUSE INTERLOCUTORY ORDER WHERE IT IS SAME AS THAT SOUGHT IN THE MAIN SUIT
‘Where the res is a non-perishable commodity, the better course would be to go to trial. An order of interlocutory injunction can safely be granted to protect the legal right of the person or persons applying for the order. See Adenuga v. Odumeru (2003) FWLR (Pt. 158) p. 1304. The Respondents from their further and better affidavit at pages 199-202 of the Records deposed that Chief Francis Edim Imona is the person who has been selected and capped as the Clan Head of Idundu Clan. It is noteworthy that the said Chief Francis Edim Imona was not a party in the suit at the trial Court. It follows therefore that a Court has no power to grant an injunction where the applicant has not established a recognizable legal right. See Ihunde v. Sampson Rogers Nig. Ltd. (2000) FWLR (Pt. 16) 2782 at 2796. It is also trite that where the reliefs sought in an application for interlocutory injunction are substantially the same as those sought in the substantive suit, the Court should refuse the interlocutory injunction and instead accelerate the hearing of the substantive suit.’

Available:  Chief Joseph Oluwole Odulate v. First Bank Nigeria Limited (2019) - CA

‘Looking at the above prayers as contained in the motion on notice of the Respondents and the statement of claim of the same Respondents, there is no doubt that the prayers were substantially the same. It is the law that where the reliefs sought in an application for interlocutory injunction are substantially the same as those sought in the substantive suit, the Court should refuse the interlocutory injunction and rather accelerate the hearing of the substantive suit. See Eyo v. Ricketts (2005) All FWLR (Pt. 241) 387. It is also noteworthy that the Learned trial Judge in dealing with the application for injunction delved into the substantive suit when he held that the recent selection of Chief Francis Edim Imona as the Clan Head of Idundu Clan fulfilled the requirements laid down in the Cross River State Traditional Rulers Law.’

‘Having made the above observation particularly where he held that selection of Chief Francis Edim Imona fulfilled the 1st and 2nd requirements of the Cross River State Traditional Rulers Law, the Learned trial Judge had delved into the substantive suit and more or less pre-judged the merits of the substantive suit.’]
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✓ DECISION:
‘It is trite that whenever it is possible to accelerate the hearing of a case, rather than go through several pages of affidavits and taking very lengthy arguments on interlocutory injunction, the trial Court, should strive to accelerate the hearing of the substantive suit on the merits and arrive at a conclusion one way or the other. Accordingly, the Ruling of the Learned trial Judge, S. M. Anjor J, of the Akpabuyo Judicial Division of Cross River State High Court in Suit No. HCA/18/2013, delivered on the 9th of June, 2014 is hereby set aside. Suit No. HCA/18/2013 is remitted back to the Chief Judge of Cross River State for assignment to another Judge of the said High Court for hearing and determination on the merits. It is also ordered that this case be given accelerated hearing.’

Available:  Eshiet v. Effiong & Ors (2018) - CA

➥ FURTHER DICTA:
⦿ IT IS ONLY WHERE THE SUBJECT MATTER WILL BE DESTROYED THAT INTERLOCUTORY INJUNCTION WOULD BE GRANTED
It is trite that interlocutory injunction is concerned principally with the protection of the res and maintaining the status quo. “The Court has not only the power and jurisdiction but also the duty to preserve the res in an action. The res or subject matter such as chieftaincy title of Oba of Lagos is not perishable or capable of being permanently destroyed in such a way that it cannot ever be recovered or replaced. It is only where the subject matter will be permanently destroyed and cannot be recovered or replaced that an order of interlocutory injunction will be appropriate to maintain the status quo until the final determination of the substantive suit.” See Modile v. Gov. Lagos State, (2004) 12 NWLR (Pt. 887) 354. — C. E. Nwosu-Iheme, JCA.

➥ LEAD JUDGEMENT DELIVERED BY:
Chioma Egondu Nwosu-Iheme, JCA

➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
Eke E. Edem Esq.

⦿ FOR THE RESPONDENT(S)
Ekpenyong Ndiyo, Esq.

➥ MISCELLANEOUS POINTS

➥ REFERENCED (LEGISLATION)

➥ REFERENCED (CASE)

➥ REFERENCED (OTHERS)

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