The plaintiff, now respondent, instituted an action in the High Court, Port Harcourt, seeking two declarations one that he is the lawful incumbent of the stool of Eze Oha Evo of Oro Evo community, Obio, Port Harcourt with the title of Eze Oha Evo II and two, that the installation of the 1st defendant, now appellant, as the said Eze Oha Evo was done contrary to the existing chieftaincy tradition and custom of the Oro Evo community and therefore unlawful, null and void. He also asked for two orders of injunction one restraining the 2nd and 3rd defendants from according recognition to the 1st defendant, and two, restraining the 1st defendant from holding himself out as the Eze Oha Evo II of Oro – Evo community.

The said 2nd and 3rd defendants who have not been made parties in this appeal were (1) the Attorney General and Commissioner for justice of Rivers State and (2) the Military Governor of Rivers State. The writ of summons was taken out in December, 1988 when the Chief Executives of States were Military Governors.

After hearing evidence and addresses of counsel, the learned trial Judge, (Desalu, J.) dismissed all the three arms of the claim in their entirety.Pleadings were exchanged between the parties. Subsequently, the appellant amended his statement to defence to incorporate a counter claim. The respondent then filed a notice of motion seeking to discontinue the action. The court dismissed the action though without prejudice to the counter claim.

Appellant then sought to restrain the respondent from presenting himself to the Rivers State Government and the State Traditional Council of Chiefs for recognition as Eze Oha Evo II and from parading himself as such in whatever manner.

Respondent raised a preliminary objection to the motion on the ground inter alia that the trial court having dismissed the suit of the respondent had become Functus officio and lacked jurisdiction to entertain the motion. The learned trial judge who heard the motion ruled that since the respondent’s suit had been dismissed and an appeal lodged against that decision, he was divested of jurisdiction to entertain the motion for interlocutory injunction.

Being dissatisfied with the decision the appellant appealed to the Court of Appeal.