HON. CHUKWUMAEZE M. NZERIBE v. BARRISTER VITALIS C. OKAFOR & Ors (2010)

HON. CHUKWUMAEZE M. NZERIBE v. BARRISTER VITALIS C. OKAFOR & Ors

(2010)LCN/3979(CA)

In The Court of Appeal of Nigeria

On Thursday, the 15th day of July, 2010

CA/E/EPT/57M2/2008

RATIO

ORDER OF COURT: WHETHER A COURT CAN GRANT AN ORDER AGAINST A COMPLETED ACT

It is trite law that a court does not grant an order against completed act. See the cases of Ayorinde vs AG of Oyo State (1966) 3 NWLR (Pt 434) 20, the Regency General of Olota vs Sodlende (1998) 6 NWLR (Pt 552) 72; Lafferi vs Nal Merchant Bank (Plc (2001) 3 WRN 106. PER AMIRU SANUSI J.C.A

JUSTICES

AMIRU SANUSI Justice of The Court of Appeal of Nigeria

MOHAMMED LADAN TSAMIYA Justice of The Court of Appeal of Nigeria

OLUKAYODE ARIWOOLA Justice of The Court of Appeal of Nigeria

Between

HON. CHUKWUMAEZE M. NZERIBE Appellant(s)

AND

1. BARRISTER VITALIS C. OKAFOR
2. INDEPENDENCE NATIONAL ELECTORAL COMMISSION (INEC)
3. RETURNING OFFICE, IHIALA FEDERAL CONSTITUENCY, ANAMBRA STATE
4. RESIDENT ELECTORAL COMMISSIONER, ANAMBRA STATE Respondent(s)

AMIRU SANUSI J.C.A (Delivering the Lead Ruling) The Applicant herein who was respondent in appeal No CA/E/EPT/57/2008 which was heard by this court and judgment delivered on 9/7/09 while the 1st respondent herein was the appellant in the said appeal. The 2nd to 4th Respondents are INEC and its officials who conducted the election which gave rise to the appeal mentioned above. On the 7th day of July, the applicant herein, filed a motion on notice dated same day before this court seeking the under mentioned reliefs.
(a) An order of court disqualifying Hon. Justice Olu Ariwoola from presiding over the Motion on Notice dated and filed on the 17th day of July 2010 by OSUAGWU UGOCHUKWU Esq. of Victory and Rose Associates in that he cannot preside over his own judgment that is sought to be set aside.
(b) An order of this Honourable Court constituting a full panel of Justices of Court of Appeal to hear and determine the said motion on notice such that it raises substantial constitutional issues.
(c) And any other order or orders that the court may deem fit to make in the circumstance.
The motion is supported by a seven paragraph affidavit sworn to by the applicant himself. When served with a copy of the motion, the learned counsel for the 1st Respondent opposed the application by filing a 19 paragraph counter affidavit on 12th July 2010 dated same day. Some of the relevant averments in the affidavit supporting the motion are set out below.
Paragraph –
“2. That there was a judgment in this Suit wherein I was the Respondent which was written and read by HON. JUSTICE OLUKAYODE ARIWOOLA JCA delivered on 9th day of July 2009.
3. That I was dissatisfied with the said judgment and engaged the services of Victory & Rose Associates, a law firm, to file a motion on Notice to set aside judgment and which motion on notice is dated and filed 17th day of July 2010.
4. That Hon Justice Olukayode Ariwoola JCA who wrote and read the said judgment can not be heard or seen to preside over the Motion on Notice to set aside his own judgment and he cannot possibly be a judge in his own cause
5. That my counsel informed me and I verily believe him that the motion on notice bothers on substantial constitutional issues and which requires a full panel of Justices of court of Appeal”
The learned counsel for the 1st respondent responded to the averments in the supporting affidavit set out supra by also making the averments below in his counter affidavit. These include-
Paragraphs –
7. That on 2-6-2010 O. Anumuonye Esq for the Applicant applied for an adjournment as he informed the court that he was not aware of the days fixture and the matter was then adjourned to 28-6-2010.
8. That on 28-6-2010 O. Anumonye Esq. appeared for the Applicant JTU Nnodum SAN for the 1st Respondent while Osaze Uzzi Esq was for the 2nd to 4th Respondents.
9. That the motion was fully argued on this date by counsel for each of the parties before the ruling was reserved for a date to be communicated to the parties or their counsel, with Ariwoola, Aboki and Lokulo-Sodipe JJCA as coram
10. That the applicant’s counsel did not raise any objection to the composition of the panel of the court that, was about to hear his application.
11. That on 30-6-2010 one of the counsel in our chambers received a telephone call from the registry of the Honourable Registry of the Honourable Court informing him that the ruling on the motion argued on 28-6-2010 would be read on 1-7-2010, and there was not enough time to serve hearing notice on the learned SAN.
12. That on 1-7-2010, the Applicant’s Counsel (O Anumuonye Esq) who was in court when the matter was called up for ruling informed the court, that he did not receive any notice of the ruling and consequently this motion was adjourned to 12-7-2010 for ruling.
13. That on Friday 9-2-2010 at about 4pm our law firm was served with Motion on Notice dated 7/7/2010 and filed the same sate praying this Honourable Court amonth other reliefs, to disqualify Hon. JUSTICE OLUKAYODE ARIWOOLA JCA from presiding over the motion dated and filed on 17/7/2009.
15. That I strongly believe that the constant motion on notice of 7-7-2010 is a clear case of abuse of court process as the motion on Notice of 17-7-2009 had already been argued and fixed for ruling.
16. That there was no basis to seek to disqualify Hon. Justice Olukayode Ariwoola from presiding or hearing the said motion on notice since the judgment sought to beset aside was delivered by three justices namely HON. JUSTICE AMIRU SANUSI JCA, HON. JUSTICE S.S. ALAGOA JCA and HON. JUSTICE OLU ARIWOOLA JCA.
17. That there was no need to constitute a fresh panel of justices to hear the motion on notice since the said motion was heard on the merit and ruling fixed for 12-7-2010.”
It is pertinent to say at this stage, that as could be gleaned from the averments in counter affidavit which were not controverted by the Applicant, it was the motion on notice dated and filed on 17/7/2009 that perhaps triggered the filing of the instant application by the applicant. In that motion, the applicant is seeking the indulgence of this court to set aside the judgment delivered in appeal No. CA/F/EPT/57/2008 which said judgment was delivered on 9th July 2009.
On 12-7-2010 we set to hear the instant motion and the learned counsel for the applicant V.O. Isebor Esq while arguing his motion submitted, inter alia, that Hon. Justice Olukayode Ariwoola JCA who prepared the lead judgment in the appeal should be disqualified from presiding over the motion on notice dated and filed on 17/7/2009, having delivered the judgment he (the applicant) sought to be set aside because his client, the applicant herein, is dissatisfied with that judgment. The learned applicant’s counsel however conceded that the said motion on notice to set aside the judgment of this court had already been heard by this court and fixed for ruling. Learned counsel for the applicant further submitted that the learned counsel who argued the motion on behalf of the applicant herein on 28/6/2010 argued it without the consent or instruction of the Applicant, his client. He said the learned senior counsel who argued the said motion without the consent of the applicant, was Dr. O. Ikpeazu SAN. He said had it been he was in court on that day i.e 28/6/2010, he would have vehemently objected to the appearance of the learned senior advocate for the applicant and protest on his arguing the motion on behalf of the applicant because he, the learned silk had no instruction, consent or authority of the applicant to move such motion on his behalf. He finally urged this court to grant the instant application.
Although we noted that the allegation made by Mr. V. Isibor against Dr, O. Ikpeazu SAN regarding the alleged want of consent of applicant was not contained in the supporting affidavit to the motion, we felt since the learned counsel for the applicant was speaking from the Bar and considering the serious nature of the allegation he made against the learned senior advocate, we deemed it proper and apposite to refer the accusation of the applicant to him to respond or defend himself. To that effect, this court ordered that the learned silk, be summoned to appear on 14/7/2010 to respond to the allegation made against him. I will later come to the explanation given by the learned silk.
Now in his reply to the application, the learned counsel for the 1st respondent submitted inter alia, that the applicant is not entitled to be granted the reliefs sought because the motion dated and filed on 17/7/09 had already been argued on 28/6/2010 and reserved for ruling. He said on that day O. Anumuonye Esq. of counsel for the applicant argued the motion on behalf of the applicant and in the presence of the latter. He said on that day, neither the learned applicant’s counsel nor the applicant protested or objected to the composition of the panel that took the motion and none of them opposed the inclusion of Hon. Justice Olukayode Ariwoola JCA. He also submitted that on 1/7/2010 when the case was slated for delivery of ruling, the applicant’s counsel was present in court but also did not protest on the composition of all panel but merely stated that he was not aware or served with hearing notice that the ruling was going to be delivered on that day hence this court further adjourned it to 12/7/2010 for the ruling. He said he was surprised when served with the present application on 7/7/2010. He said this is a clear case of abuse of court or judicial process, adding that it was irregular and that the application was brought mala fide by the applicant and was calculated at over reaching the respondents and it was bought to the annoyance of this court. On these submissions, he placed reliance on the cases of Nyah vs Mfoah (1024) (2007) 4 NWLR (Pt, ) at 379 Para 320 at 339/340, Abubakar vs B.O & AP Ltd (2007) 18 NWLR (Pt 1066) 319 at 377 Para F to H.
The learned 1st Respondents counsel also submitted that the applicant had concealed some material facts, that the application filed on 17/7/09 had already been heard and reserved for ruling. On the applicant’s counsel’s oral application to this court to rehear the learned 1st respondent’s counsel urged this court to refuse to grant such relief as it is not part of the reliefs he asked for in the application at hand, adding that parties are restricted to the prayers in their application. See Dipialong vs Dariye (2007) 8 NWLR (Pt. 1036) 239 at 290/291. He said the application should be refused and dismissed as it did not raise any constitutional issue or point to warrant its being heard by a full panel of justices of this court.
Coming to the explanation or defence proffered by Dr. O. Ikpeazu SAN on the allegation made against him by the applicant’s counsel, the learned silk stated that on 22/4/2010 the applicant wrote to his chambers asking it to handle the application for setting aside of the court’s judgment but he turned down that request, because on reading the motion he decided that it is not a matter that, he would take personally. He said the applicant thereupon asked him if he could approach any of the counsel in his chambers and he said he could, provided that he (the learned SAN is left out of it. He said thereupon, the application approached O. Anumuonye who agreed to handle the motion. He said on getting this court’s invitation to come and explain, he quickly summoned O, Anumonye Esq., who confirmed to him that he moved the said application on 28/7/10 in the presence of the applicant and that it was the applicant who instructed him to move the application on his behalf. The learned silk tendered the letter on which the applicant approached him to handle the motion for setting aside which he turned down and the letter is dated 22/4/2010.
The learned silk expressed his dismay on the allegation made against him by V. Isibor Esq and stated that since 12/7/2010 when the allegation was made against him he had been receiving messages that this court had admonished or reprimanded him on the issue which is not true. He finally appealed to this court to refer the matter or allegation to Legal Practitioners Disciplinary Committee to investigate this serious allegation made against him as he said he had his reputation to protect.
While responding to the explanation given by the learned senior advocate, V. Isunbor Esq stated that he had never been debriefed by the applicant and that he was not copied the letter written to the SAN by the Applicant. He conceded that the allegation he made against the senior counsel was really serious. He said he was satisfied with the explanation given by the learned senior counsel and he tendered his unreserved apology to him.
It is clear as crystal that the instant application was heard on 28/6/2010 by a panel of this court presided over by Hon. Justice Olukayode Ariwoola JCA. At the hearing of the motion to set aside this judgment, the learned counsel for the applicant O. Anumuonye and indeed the applicant himself were present. There was no any protest by the learned applicant’s counsel who appeared for the applicant on that day, on the composition of the panel before or during the time the said motion was heard, up to the time it was reserved for ruling. If the applicant herein or his counsel was uncomfortable with the presence of Hon. Justice Olukayode Ariwoola JCA on the panel on that day nothing prevented them from raising their objection. None of them took any step to raise such protest or objection. Afterall, where a party wishes to oppose or protest against the composition of a court, he is supposed to raise such protest timeously before such court for it to rule on the objection. This is akin to a situation where a challenge is posed on jurisdiction of a court. Admittedly. Hon. justice Olukayode Ariwoola JCA took part at the hearing of the substantive appeal in this matter. He is one of the three justices on the panel that took the appeal even though he wrote the lead judgment, of the court. Again by sheer coincidence he happened to also be on the panel that took the application for setting aside of the said judgment and is also one of the three justices that took the motion. In my view, to say that his presence on the panel or even presiding over the panel that took the motion for setting aside the judgment would smack of bias or that His Lordship would be a judge in his own cause is to say the least, undermining the independent mindedness of the eminent jurist who sat with him on the panel. Such insinuation is to my mind, a calculated attempt to undermine the reputation or competence of this court. It is also mischievous and derogatory.
Having a close and dispassionate perusal of the application at hand, one could see that the applicant is asking this court to disqualify Hon. Justice Ariwoola from taking or presiding over the panel that had already been taken and reserved for ruling. Both learned counsel for the parties conceded also that the motion for setting aside had already been taken on 28/6/2010 and reserved to 1/7/2010 for ruling before it was further adjourned to 17/7/2010 for ruling at the instance of the learned counsel for the Applicant O. Anumonye. It has therefore become a completed act. It is trite law that a court does not grant an order against completed act. See the cases of Ayorinde vs AG of Oyo State (1966) 3 NWLR (Pt 434) 20, the Regency General of Olota vs Sodlende (1998) 6 NWLR (Pt 552) 72; Lafferi vs Nal Merchant Bank (Plc (2001) 3 WRN 106.
It is noted by me that in the application at hand the learned counsel did not allude to the fact that the application for setting aside was moved in the court by the applicant’s counsel and slated for ruling. By concealing this vital fact, 1 think it makes the effort by the applicant to challenge the composition of this court that hence the motion is coloured or decorated with mischief and was not made in good faith. Learned counsel for parties should always expose all relevant facts in the case as would enable the court to consider, in its effort to do justice to the parties. The application, as rightly submitted by the learned counsel for the 1st respondent, was brought mala fide. It is in my view aimed at arresting the judgment of the court which, I am afraid, is not in the law applicable in Nigeria as it is not in aur jurisprudence. See the case of Newswatch Communications Ltd vs Attah (2006) 12 NWLR (Pt 993) 144 at 179. The application is in my view an abuse of court process as it is an improper use of the process and procedure of the court and aimed at attainment of unlawful process or procedure. It is thus lacking in bona fides and has a tinge of malice. See Oguejiofor vs Oguejiofor (2002) 12 NWLR (Pt 780) 171; Saraki vs Kotoye (1992) 9 NWLR (Pt 264) 156; Okorodudu vs Okoromadu (1977) 3 SC 21 and Okafor vs AG Anambra State (1991) 6 NWLR (Pt 200) 659.
On the allegation leveled against Dr O, Ikpeazu SAN by the learned applicant’s counsel, Mr. V. Isunbor, I think such allegation is most unfortunate and is highly deplorable, especially, if one considers the fact that spurious allegation was made by a learned and honourable member of our noble profession against a learned colleague of his who is even a senior advocate of Nigeria. I think this is a clear example of a case that should be referred to the Legal Practitioners Disciplinary Committee for thorough investigation and possible sanction on the applicant’s counsel, if found guilty. I therefore hereby so order. Except when counsel of the applicant’s counsel ilk are brought to book for making unsubstantiated and baseless allegation against their colleague are brought to book, the reputation of our noble profession would be tarnished and soiled and in the end exposed to ridicule.
On the whole, in the light of all that I have posited above, I am of the view that the application is meritless and it has to fail. It is therefore accordingly dismissed with N20,000 cost against the Applicant and in favour of the 1st respondent only.