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EZE FRANCIS UNAMKA v. CHIEF VICTOR ECHIBE & ORS

(2018) LPELR-45483(CA)

In The Court of Appeal of Nigeria

On Friday, the 24th day of August, 2018

CA/OW/189/2011


Before Their Lordships

RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria

MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria

TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria


Between

EZE FRANCIS UNAMKA - Appellant(s)

AND

1. CHIEF VICTOR ECHIBE
2. PATRICK EGBUHUZOR
3. SIR INNOCENT UGOCHUKWU
(For themselves and representing members of Amuzi Progressive Union, Amuzi, Ahiazu Mbaise L.G.A. excluding 1st Defendant) - FIRST SET OF RESPONDENTS
4. GOVERNOR OF IMO STATE
5. ATTORNEY GENERAL AND COMMISSIONER FOR JUSTICE, IMO STATE-SECOND SET OF RESPONDENTS - Respondent(s)


Other Citations

; ;


Summary

INTRODUCTION:
This appeal borders on Civil Procedure.
FACTS:
This appeal is against the judgment of the High Court of Imo State, sitting at Owerri, Coram: Hon. Justice A. O. H. Ukachukwu, J. The said judgment was delivered on the 15th day of July, 2010.

The suit was commenced vide an originating summons dated and filed on the 2nd day of June, 2009, wherein the claimants/1st - 3rd respondents  raised the following questions for determination:

"1. Whether the 2nd defendant, who is a party to the Appeal No. CA/PH/155/2001: Ambrose A. Ohaji & Ors. v. Chief Pius Unamka & Ors., involving a dispute as to whether or not Sir Innocent Ugochukwu (the 3rd claimant on record in this suit) is the duly elected Eze of Amuzi Autonomous Community in Ahiazu Mbaise Local Government Area of Imo State, has any right to recognize the 1st defendant as the Eze of Amuzi Autonomous Community while the said appeal is still pending in the Court of Appeal Port Harcourt.

2. Whether Suit No. HAM/70/2008 involving a dispute over the said Amuzi Autonomous Community Ezeship stool, is not an abuse of process of Court since the appeal in respect of the same subject matter is still pending in Court of Appeal, Port Harcourt, vide: Appeal No. CA/PH/155/2001. 
3. Whether, by the doctrine of Lis Pendens, the 1st defendant acquired any interest in the Ezeship stool of Amuzi Autonomous Community to confer him with any right to bring Suit No. HAM/70/2008 in respect of the said Ezeship Stool."

Upon answering the above questions, the 1st - 3rd respondents sought for the grant of some declaratory reliefs. The originating summons was supported by a 23 paragraph affidavit deposed to by Sir Innocent C. Ugochukwu, the 3rd respondent;documentary exhibits and written address. The 3rd respondent also deposed to a further affidavit which was accompanied by a reply on point of law, in response to the appellant's/1st respondent's (hereinafter referred to as the appellant) counter affidavit and written address. The appellant also filed a notice of preliminary objection challenging the jurisdiction of the High Court to entertain the 1st - 3rd respondents' suit, which as previously stated was brought by way of originating summons. Furthermore, the appellant sought to file a further and better particulars vide a motion on notice filed on the 28th day of June, 2010. The 1st - 3rd respondents in opposition to the said motion on notice, also filed a notice of preliminary objection on the 6th day of July, 2010. In reply to the 1st - 3rd respondents' preliminary objection, the appellant filed a reply address on the 14th day of July, 2010. 

The learned trial judge after the giving of due considerations to all the processes filed by the parties, declined to grant the application made by the appellant to admit further evidence; dismissed the appellant's preliminary objection and entered judgment in favour of the 1st - 3rd respondents and granted their reliefs (a) and (d). Dissatisfied, the Appellant appealed to the Court of Appeal.

ISSUES:
The Court determined the appeal on the issues raised by the 4th-5th Respondents and couched as follows:

1. Whether the learned trial judge had the jurisdiction to hear and determine the suit. 

2. Whether the appellant was denied fair hearing at the lower Court. 

3. Whether an application for transfer can operate as a stay to which invariably ousted the jurisdiction of the Court. 

4. Whether there were conflicting affidavit evidence material to the determination of the originating summons. 

DECISION/HELD:
On the whole, the Court found no merit in the appeal and accordingly dismissed same.


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