ENGR. VITA ABBA & ORS v. INDEPENDENCE NATIONAL ELECTORAL COMMISSION (INEC) & ANOR
(2010)LCN/4171(CA)
In The Court of Appeal of Nigeria
On Thursday, the 23rd day of December, 2010
CA/E/297M/2010
RATIO
WHETHER THE COURT HAS A DUTY NOT TO DELVE INTO THE FACTS WHICH CONSTITUTE THE CRUX OF THE SUBSTANTIVE APPLICATION AT THE STAGE OF INTERLOCUTORY APPLICATION
Furthermore, they are arguments proper only at the stage of the substantive case since the court will not delve into the facts which constitute the crux of the substantive application and the law is trite that at the stage of interlocutory application the court should not attempt to go into the merit of the matter in controversy…. i.e. the questions referred by the lower court in this case. Registered Trustees of P.C.N- v- Registered Trustees of Ansar-Ud-Deen Society of Nigeria (2000) 5 NWLR (pt. 657) page 368 referred. PER IGNATIUS IGWE AGUBE J.C.A.
JURISDICTION: DEFINITION OF TERM “JURISDICTION”
Thus in National Bank (Nig.) Limited & Anor v. John Akinkunmi Shoyoye & Anor. (1977) 5 S.C 181 at pp.190-191, the Supreme Court adopted the definition of ‘jurisdiction’, as contained in Vol. 10 Halsbury’s Laws of England 4th Ed. Para. 715 page 323 as follows: “By jurisdiction is meant the authority which a Court has to decide matters that are litigated before it, or to take cognizance of matters of this authority are imposed by the statute, charter or commission under which the court is similar means lf no restriction is imposed, the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular court has cognizance or as to area over which the jurisdiction extends or it may partake of both these characteristics.” PER IGNATIUS IGWE AGUBE J.C.A.
SPECIAL REFERENCE: MEANING OF THE PHRASE “SPECIAL REFERENCE”
The 8th edition of the Black’s Law Dictionary at page 1306 says of ‘special reference thus “2. An order sending the case to a master or reserved/for information or decision”:- (underlining emphasis supplied)PER MOJEED ADEKUNLE OWOADE, J.C.A.
JURISDICTION OF COURT: WHAT THE JURISDICTION OF THE COURT OF APPEAL AS PROVIDED UNDER SECTION 295 (2) OF THE 1999 CONSTITUTION ENTAILS
It would be observed from the above provisions that the draftsman of the Court of Appeal Rules 2007 did not find it necessary to put the “dominion clause” expressed in order 4 Rule 4 in any of the paragraphs of Order 5 which deals with case stated. It follows logically that when an appeal has not been entered and there is merely a reference to the court of Appeal by means of case stated the court of Appeal does not have the control, the dominion or the jurisdiction to be seized of the whole of proceedings as between the parties thereto. Put in another way, the jurisdiction of the Court of Appeal under the provision of Section 295 (2) of the 1999 constitution on any question as to the interpretation or application of the constitution is limited to the court given a decision upon the question and the court below shall thereby be enjoined to dispose of the res in accordance with the decision of the court of Appeal. In the instance case, the provision of Section 295 of the 1999 constitution itself lends credence to the submission of Learned Senior counsel for the 2nd Defendant/Respondent/Applicant that the court to which reference is made does not have dominion on the subject matter. Section 295 (2) of the constitution reads as follows: “(2) Where any question as to the interpretation or application of the constitution arises in any proceedings in the Federal High Court or a High Court and the court is of opinion that the, question involves a substantial question of law, the court may and shall its any party to the proceedings so requires refer the question to the Court of Appeal and where any question is referred in pursuant of this Sub Section, the Court shall give its decision upon the question and the court in which the question arise shall dispose of the case in accordance with that decision” (underlining emphasis supplied). In the case of Labour party vs. INEC (2009) 1-2 and S.C (pt.11) 44 at 67 -68 the Supreme court made it clear that there are no inherent powers of a court that can confer jurisdiction to act outside the rendering of a decision on the question(s) referred under the provision of section 295 (2) of the 1999 Constitution. The court held “Before concluding this judgment, I wish to state that section 295 of the constitution of the Federal Republic of Nigeria 1999 is mandatory or connotes a command that when any question is or questions are referred to the Court of Appeal, that court shall give its decision upon the question or questions. It has no discretion in respect of the said reference.- “. See also, Ona & anor v. Alhaji Atanda (2005) 5 NWLR (Pt. 656) 244 at 275-276 Brigadier-General Togun (Rtd) V Hon. Justice Oputa (rtd) & 2 ors (No. 1) (2001) 16 NWLR (Pt. 740) 577 at 592 FRN v. Lord Chief Ifegwu (2003) 5 S.C 252 (2003) 15 NWLR (Pt. 845) 113 at 191 (2003) 5 SCNJ 217. PER MOJEED ADEKUNLE OWOADE, J.C.A.
JUSTICES:
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
MOJEED ADEKUNLE OWOAD Justice of The Court of Appeal of Nigeria
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
Between
ENGR. VITA ABBA & 28 ORS
(Being members of the Executive Committee of the Peoples Democratic Party, Enugu State) – Appellant(s)
AND
1. INDEPENDENCE NATIONAL ELECTORAL COMMISSION (INEC)
2. PEOPLE DEMOCRATIC PARTY (PDP) – Respondent(s)
IGNATIUS IGWE AGUBE J.C.A. (Delivering the Lead Ruling): At the Enugu Judicial Division of the Federal High Court, before the Honourable Justice A.R. Mohammed, the Plaintiffs/Applicants as members of the Executive Committee of the Peoples Democratic Party (PDP) Enugu State initiated proceedings in Suit No. FHC/EN/CS/298/2010 and in their endorsements on the Writ of Summons and Statement of Claim dated and filed on the 18th day of October, 2010, supplicated for declaratory and injunctive reliefs against the Defendants/Respondents, couched in the following terms:-
a) A DECLARATION that the 1st Defendant as an executive, non-judicial agency of Government does not have the power, under the provisions of the Electoral Act, 2006 and/or the Electoral Act 2010 and/or the Independent National Commission Act Cap. 15 L.F.N. 2004 and/or the Constitution of the Federal Republic of Nigeria, 1999 and/or any other legislation, to a State Executive Committee of a political party illegal or illegally constituted on the ground, as perceived by the Defendant, that the at which they were elected was not in line with the provisions of the party’s Constitution, and/or on any other ground whatsoever.
b) A DECLARATION that the 1st Defendant does not have the power to enforce the provisions of the Constitution of a political party or its internal regulations.
c) AN ORDER of Court setting aside the letter from the 1st Defendant dated 27th September, 2010. Ref: INEC/DPPM & L/PDP/024/26, as null and void same being ultra vires the Defendant.
d) AN ORDER of injunction restraining the 1st Defendant by itself, servants, agents, privies or any person(s) howsoever called, from refusing or failing to deal with the Plaintiff, for all intents and purposes including all matters relating to the 2011 general election, as the members of the Executive Committee of the Peoples Democratic Party in Enugu State, or in any manner whatsoever undermining the authority, powers, rights and privileges of the Plaintiffs as the members of the Executive Committee of the Peoples Democratic Party in Enugu State until the expiration of the term office of the Plaintiff.
e) AN ORDER of injunction the 2nd Defendant by its national Executive Committee and any organ and/or officer from ceasing, refusing and or failing to and or relate with the Plaintiffs as the members of the executive Committee of the Peoples Democratic Party, Enugu State on the basis of the letter of the 1st Defendant dated 27th September, 2010, Ref: PPM & L/PDP/024/26, and/or for any other reason until the expiration of the term of office of the Plaintiffs.
f. AN ORDER of injunction restraining the 2nd Defendant by its National Executive whatsoever that detracts from the Plaintiff position as members of the Executive Committee of the Peoples Democratic party in Enugu State or from holding, organizing or directing the holding or organization of another or fresh congress for, or, election of members of the Executive Committee of the People Democratic party in Enugu State until the expiration of the four year term office of the Plaintiffs.
The facts material to this case as can be distilled from the processes filed by the Applicant herein, are that on the 19th of October, 2010, the Plaintiffs who for purposes of this Ruling shall henceforth be referred to as the Applicants/Respondents, filed a motion for interlocutory injunction to restrain the 1st and 2nd Defendants,{Respondents from doing certain things touching on the subject matter of the suit pending the determination of the substantive suit.
After filing the motion on Notice, the Defendants who also shall herein after to be referred to as the Respondents, published in the Thursday 21st October, 2010 Edition of “The Vanguard Newspaper,” their intention to conduct fresh congresses in some PDP States including Enugu State.
Following the exigency of the situation, the Applicants filed a motion Exparte for interim injunction to restrain the Respondents from proceeding with the holding of the fresh congress as envisaged, pending the hearing and determination of the motion on Notice for interlocutory injunction already before the court. On the 25th of October, 2010, the Federal High Court heard the application which was refused but ordered that the Respondents be served with the Motion on Notice for interlocutory injunction and the hearing of the motion on Notice was adjourned to 28th October, 2010. While the suit and the motion for interlocutory injunction were still pending before the Court below, the 2nd Respondent through the Media Aid to her National Chairman (Dr. Okwesilieze Nwodo), announced or published in “The Vanguard” of 24th October 2010 that the Congress to elect new officers for the Party (PDP) in Enugu State would hold on Saturday, 30th October, 2010. Upon resumption of hearing on the 28th October, 2010, the learned Senior counsel for the Defendants/Respondents intimated the court that they needed time to file processes in reaction to the motion for interlocutory injunction after which the learned counsel for the Applicants drew the court’s attention to their (Applicants’) motion Ex-parte for interim injunction and sought to move same on the ground that the res of the substantive suit would be dissipated before the hearing of the motion for interlocutory injunction, consequent upon the fixing of the party’s congress for 30th October, 2010 by the Respondents.
Addresses were then proffered on the desirability of hearing the motion ex parte and upon discovering that the learned counsel for the Respondents, according to the learned Senior Counsel to the Plaintiffs/Applicants, was unwilling to undertake not to dissipate the res before the hearing of the motion on Notice, the court yet refused to hear the motion ex parte but made an order preserving the status quo ante pending the hearing of the Motion on Notice which he subsequently adjourned to the 3rd November, 2010.
On the 3rd November, 2010, the court did not sit and the case was subsequently adjourned to the 10th of November, 2010 and on the said 10th of November, 2010. the learned trial Judge suo motu placing reliance on Section 295 of the 1999 Constitution, referred some of the issues which he considered to be substantial questions of law, to this Honourable Court for determination. The order for the preservation of the status quo was also vacated. According to the Applicants, the 2nd Respondent is determined and poised to hold fresh PDP State Congress in Enugu State despite the pendency of this case and will do so before the determination of the issue(s) by this Honourable Court if not restrained.
Apprehensive of the determination and intention of the 2nd Respondent to hold her Congress inspite of the pending suit and referral, Chief (Mrs.) A. J. Ofiah (SAN) for the Applicant, on the 10th day of November,2010; filed a Motion Ex-Parte with the same date in this court which was duly granted. The Applicants also on the same 10th of November, 2010 filed a motion for interlocutory injunction supported by an affidavit of twenty paragraphs sworn to by Vincent Ene a legal practitioner in the Law firm of the Applicants’ counsel.
On the part of the 2nd Defendant/Respondent/Applicant, in Suit Number FHC/EN/CS/288/2010, the Plaintiff/Appellants had challenged the dissolution of their own faction of Enugu State PDP Executive and the holding of a State Congress. On 25/10/2010, they applied by a Motion Ex-parte for interim injunction stopping the holding of a State Congress. The trial Federal High Court refused to grant the Motion and instead, adjourned for the hearing of a motion for interlocutory injunction to 28/10/2010. On 27/10/2010, the Plaintiff/Respondents filed yet another Motion Ex-parte seeking for the same interim reliefs. On 28/10/2010, the trial Court declined to take or grant the exparte application since it had previously rejected a similar application.
However since it was impracticable to hear the Motion on Notice for interlocutory injunction as the Respondents’ times were still running, the trial Court felt a great urgency to preserve the res, and made an order of interim injunction stopping the holding of the State Congress of the PDP on 30/10/2010 or any other date until the hearing of the substantive Motion. Thereafter, he adjourned the Suit to 03/11/2010 for the hearing of the Motion for Interlocutory Injunction and a Motion for joinder by the other faction of the State Executive. The Court did not sit on 03/11/2010 but instead adjourned the matter to 10/11/2010, when it discharged the order of interim injunction and stated questions for reference to the Court of Appeal pursuant to Section 295(1)(2) of the Constitution. The trial Court did not also take up the Motion for joinder.
Within hours of the proceedings at the Court below, and even before the file was transmitted to this Court, the Plaintiffs/Appellants yet again filed an exparte Motion for Interim Injunction as well as a Motion on Notice for Interlocutory Injunction. The next day, 11/11/2010, this Court heard the exparte application for injunction and granted same around 3.30 pm. It then ordered the hearing of the Motion on Notice for Interlocutory Injunction for 23/11/2010. At the time of granting the ex-parte injunction, Ben C. Ezeugwu of Counsel to the 2nd Respondent informed the Court of the filing of a Notice of Preliminary Objection challenging the jurisdiction of this Court to grant the exparte injunction.
The 2nd Defendant/Respondent/Objector/Applicant subsequently filed a Motion for the discharge of the ex-parte injunction supported by an affidavit of 39 paragraphs. 11 (eleven) exhibits were filed. Also filed was a Verifying Affidavit containing 48 paragraphs. 2nd Respondent also filed a counter affidavit in opposition to the motion for injunction. It contains 83 paragraphs and 8 exhibits. As to the facts that brought about this case, the 2nd Defendant has stated in the Address that there was a State Congress of the PDP (2nd Respondent) in Enugu in 2008. It was monitored by the 1st Respondent. 2nd Defendant not only directs the State Executive on the procedure for the Congress but also sent a monitoring team. The venue of the Congress was Macdavos Hotel, Enugu. It was published throughout the country, and 1st Respondent was duly notified and it sent its monitoring team too to Macdavos Hotel. On 28/02/2008, a Congress was held at Macdavos Hotel as published, while a faction represented by Plaintiffs allegedly held theirs at Hotel Presidential, Enugu.
1st Respondent bluntly refused to recognize either Congress but instead, ordered the holding of another Congress. This was as far back as July 23rd, 2008 1st Respondent reiterated its positions by letter dated 6th March, 2009, 9th April, 2009; 23rd June, 2010 and 27/09/2010 respectively. Following the last warning and faced with the dire consequences that unless a new Congress is held as directed by 1st Respondent, 2nd Respondent cannot nominate candidate for any elective office in 2011 General Elections, it dissolved both rival State Executives and or deed the holding of a fresh Congress.
Being dissatisfied with the order of its National Working Committee, the Plaintiffs sued both INEC and its Party PDP. Its grounds include;
i. That its faction was duly elected in 2008 at the Hotel Presidential, Enugu
ii. That it was recognized by the higher organs of the Party, to wit; the National Executive and the National Working Committee.
iii. That INEC has no powers to refuse to recognize its own State Executive and to order the holding of fresh Congress.
Plaintiffs/Respondents in all their applications did not answer the questions as what would be the consequences to 2nd Respondent if it failed to carry out the directive of 1st Respondent, how PDP can field candidates for elective positions at the State, Local Government, Senate, National Assembly or State Assembly Election. The elections are fixed latest April, 2011, and nomination of candidates will not under the law extend beyond January 2011. There is also no explanation offered as to why PDP did not carry out the directives of INEC to hold fresh congress, which directives were issued as far back as July, 2008 and were never resiled upon. In opposing the application, the 1st Respondent deposed to a four paragraph counter-affidavit through Wilfred Nwabude Esq; a Legal Officer in the employ of the 1st Respondent and a further counter-affidavit of eight paragraphs deposed by the self same Legal Practitioner. The 2nd Respondent also filed two counter-affidavits and by a Notice dated and filed on the 11th of November, 2010, raised a Preliminary Objection against the hearing of the motion for interlocutory injunction. Responding to the respective counter-affidavits of the Respondents, the Plaintiffs/Applicants deposed to three Further Affidavits in support of their motion -the first which incorporates the Reply to the counter-affidavit of the 2nd Defendant/Respondent.
It is also worthy to note that on the 18th of November, 2010, the 2nd Respondent filed a Motion on Notice dated 12th of November,2010 supported by an affidavit of thirty nine paragraphs and a Verifying Affidavit of 48 paragraphs for the discharge of the interim order of this Court. Annexed to the Affidavit in support of the motion are Exhibits A, A1 , A2, B1, 82, 83, and Exhibits 1 & 2, 3, 4, 5 and 5a, respectively. In response to the Plaintiffs/Respondents’ counter-affidavit to the Affidavit in Support, the verifying Affidavit and Affidavit of Urgency of the 2nd Defendant/ Applicant in support of the motion to discharge, the 2nd Defendant/Applicant deposed to a Further Affidavit dated and filed on the 18th day of November, 2010, to which five documents marked Exhibits A to E were also annexed.
Beginning from the Notice of Preliminary Objection dated and filed separately on the 11th of November, 2010, the Grounds upon which it is predicated are that:-
(a) The court of Appeal lacks the jurisdiction to hear and entertain the application.
(b)The Application was not properly placed before the Court of Appeal.
The particulars of objection are stated as follows:-
A. The Court of Appeal lacks the jurisdiction to hear and determine the application.
i. On the 10th day of Nov. 2010, the Federal High Court sitting at Enugu informed counsel that at the close of business on the 10th of November, 2010 the court would direct its officials to get the matter ready for transmission to Court of Appeal on 11/11/2010.
ii. The matter comes under Section 295 of the Constitution of Nigeria 1999 as case stated.
iii. An (sic) agent of the case is interjection (read aspect of the case is interpretation) of law on jurisdiction only was referred to the Court of Appeal.
iv. The case was not wholly referred to the Court of Appeal.
v. The jurisdiction of the Court under Section 295 of the Constitution is limited to what is referred as case stated.
vi. Before outlining the matter the head ought to know the full facts of the application and the matters.
vii. These facts are presently with the Federal High Court and not available for (sic) accurent in the Court of Appeal.
viii. The crux of the matter is the jurisdiction of the Federal High court vis-a-vis:
a. The subject matter of the suit.
b. The timing of the suit.
c. The coincidence of abuse of process emanating from the (sic) pungency of FOUR SUITS: one at the Court of Appeal No.CA/EN/CS/288/200 and others at the Federal High Court.
In the motion to discharge, the Grounds there for are also stated inter-alia.
1. A reference under Section 295 of the constitution is not an appeal. Want of jurisdiction under section 295 of the constitution.
2. Want of jurisdiction under the Court of Appeal Act – Sections 15, 17 and 26.
3. Want of jurisdiction under the court of Appeal Rules order 7 Rules 1, 2, & Order 4.
4. Want of jurisdiction under the constitution of Nigeria 1999 Sections 240, 241 and 318 normal procedure is appeal not reference.
5. Want of jurisdiction under the Electoral Act 2010 Sections 38, 85, 86 and 87 particularly 87 particularly 87 particularly 87(9) (10) & (ii)
6. Want of jurisdiction under the general principle guiding civil procedure in Nigeria.
i. Fresh Ex-Parte – Parte
ii. No Appeal on refused Ex-Parte
iii. Fresh Motion on Notice not in compliance with section 241 of the Constitution.
iv. Motion came before reference.
v. Court of Appeal exercising original jurisdiction.
vi. Want of jurisdiction under inherent powers of a court of law.
vii. Decided cases; Labour Party v. INEC (2009) 1-125 1 – 25 (pt.11) 4 at 67 -68.
In his composite written address in respect of the motions and preliminary objection, jointly settled by the learned Senior Counsel for the 2nd Defendant/Respondent/Applicant/Objector, Prof. Ilochi Okafor (SAN), and Dr Mike Ajogwu (SAN),two issues were formulated as calling for determination couched in the following terms:
“Issues for Determination
i. Whether the Court of Appeal has jurisdiction’ express or inherent, to grant any order of injunction’ ex-parte, interim, interlocutory and/or perpetual in a matter cognizable by it under Section 295 of the 1999 Constitution and in view of the provisions of Section 87(11) of the Electoral Act, 2010.
ii. Assuming the Court of Appeal has jurisdiction, whether this is a proper case to make an order of interim and/or interlocutory injunction.”
On the part of Plaintiffs/Applicants/Respondents’ Chief (Mrs.) A.J. Offiah (SAN) who settled their written address, formulated three issues for determination which are hereunder reproduced inter alia:-
1. WHETHER THE COURT HAS THE JIJRISDICTION UNDER THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA, THE COURT OF APPEAL ACT, THE COURT OF APPEAL RULES, DECIDED AUTHORITIES AND ITS INHERENT POWERS AS A COURT OF LAW, TO MAKE THE INTERIM ORDER OF 11/11/2010 NOW SOUGHT TO BE DISCHARGED AND THE INTERLOCUTORY ORDER FOR INJUNCTION BEING SOUGHT BY THE PLAINTIFFS.
2. WHETHER THE 2ND DEFENDANTS HAVE SUFFICIENTLY SATISFIED THE CONDITIONS STATED BY LAW FOR DISCHARGE OF AN INTERIM ORDER.
3.  WHETHER THE PLAINTIFFS IN THE CIRCUMSTANCES OF THIS CASE HAVE MADE OUT A CASE FOR THE GRANT OF AN ORDER FOR INTERLOCUTORY INJUNCTION.
ARGUMENT OF ISSUE NUMBER 1 JURISDICTION:
While adopting the address of the Respondent / Applicant / Objector, the learned Professor Okafor drew our attention to paragraphs 4.01 – 4.31 of the address as covering the Respondent/Applicant’s argument on the preliminary objection and noted that this is a unique and peculiar case; as the Court of Appeal is not acting in its appellate jurisdiction and there is no appeal pending in the Court. He pointed out that what the Court is seised of is a reference made to it under Section 295(I)(2) of the 1999 Constitution by the Federal High Court, Enugu. The questions under reference were restated to submit that from those question or issues the core issue in the reference is whether the Federal High Court has jurisdiction to hear Suit No. FHC/EN/CS/298/2010.
Moreover, learned Senior Counsel further pointed out, the Plaintiffs/ Applicants had failed in two previous applications they made for ex-parte injunction at the Federal High Court but an interim injunction was however made on 28/10/2010, which was discharged by the lower Court on 10/11/2010 before the order of reference. He argued that the Plaintiffs/Applicants have neither appealed against the discharge of the interim injunction, nor have they appealed against the order of reference. In the premises, it was contended that all that is before the Court of Appeal is a reference made pursuant to Section 295(1)(2) of 1999 Constitution.
Accordingly, he posed the following sub-questions as emanating from the challenge to the jurisdiction of the Court of Appeal to hear and grant an injunction in this reference, to wit:-
a. Whether a higher Court exercising jurisdiction pursuant to Section 295(1)(2) of the 1999 Constitution can lawfully assume jurisdiction to make any order of interlocutory injunction.
b. Whether the Court of Appeal can make an order of interlocutory injunction or stay of execution when there is no appeal whatsoever pending before it.
c. Whether the Court of Appeal can lawfully under the Rules of Court hear and determine an ex-parte application.
d. Whether there is inherent jurisdiction in the Court of Appeal to hear and grant an ex-parte application for injunction.
e. Whether under the provisions of the Electoral Act, 2010, injunction, whether ex-parte, interim, interlocutory or perpetual can lawfully be granted by any Court.
On sub-issue A as to whether a higher Court exercising jurisdiction pursuant to Section 295(1)(2) of the 1999 Constitution can lawfully assume jurisdiction to make any order of interlocutory injunction the learned SAN reproduced the provision of section 295 (2) of the 1999 Constitution to submit as follows:-
1. Reference under Section 295 of the Constitution is not an appeal, nor is it within the original jurisdiction of the higher Court. In this case, the appellate jurisdiction of the Court of Appeal is expressly stipulated under Section 240 of the Constitution, while the original jurisdiction comes under Section 239 of the Constitution. The two Sections are distinct and separate from Section 295(2) of the Constitution and they cannot mean the same thing as the maxim expressio unius est exclusio alterius applies.
2. Under Section 295 of the Constitution, the Court to which reference is being made is therefore not dominis litis over the substantive Suit as an appellate Court, e.g. which the Court of Appeal has under Section 15 of the Court of Appeal Act.
3. The only jurisdiction a higher Court has under Section 295 of the Constitution is to give its decision upon the questions but it has no discretion in the matter to go outside the task of giving its decision upon the question.
4. A fortiori, the higher Court does not even have powers to determine the suit.
5. The power rather belongs to the lower Court in which the question arose which shall dispose of the case in accordance with that decision.
6. However a party can appeal against the decision of a lower Court making a reference or stating a case for a higher Court and a party can also appeal against the decision of a higher Court on the question referred to it.
7. In the final analysis, the proceedings on the reference must be regarded as distinct from the proceedings in the course of which the question arose in the lower Court. DPP v. Obi (No. 2) (1961) ALL N.L R 477-480 refers.
8. Section 295 of the Constitution does not tantamount to transfer of a case to the higher Court for hearing and determination. Gamioba & Ors v. Esezi 11 & Ors (1961) ALL N.L.R 608′ 611- 612 refers.
9. Brett, F. J, in Olawoyin v. Police (1961) ALL NLR 213, at 227, had sounded a note of warning on the duty thrust upon higher Courts in the difficult duty of determining opinions sent to them by lower courts.
In emphasizing on the limited jurisdiction of a Higher Court in reference proceedings, he relied on the following cases:- Labour Party v. INEC (2009) 1 – 2 S.C. (pt. 11), 44, at 67 – 68; Ona & Anor. v. Alhaji Atanda (2005) 5 NWLR (pt.656) 244,275-276 CA; Brigadier General Togun (Rtd) v. Hon. Mr. Justice Oputa (Rtd) & 2 Ors (No.1) (2001) 16 NWLR (pt. 740) 577, 597; African Newspapers of Nigeria Limited v. FRN (1985) 2 NWLR (Pt.6), 133 and FRN & Anor’ v. Chief Ifegwu (2003) 15 NWLR (Pt. 842) 113, 191.
Further references were made to Togun v Oputa (supra), at page 593 and Oguataji v. A.G. River State (1997) 6 NWLR (Pt. 508) 209; where the Court of Appeal held that a question referred to the Court of Appeal by a High court pursuant to section 295 (2) for interpretation cannot be properly described as a question arising in proceedings in the Court of Appeal in the primary role of hearing appeal as envisaged in Section 295(3) of the 1999 Constitution adding further that where the Constitution or any law has conferred a power and prescribes how to exercise it, the power must be exercised accordingly.
According to the learned Senior counsel, reference under Section 295 of the constitution can only properly be made if the question arises in the course of the proceedings at the lower Court, which means that the lower Court is still dominis litis of the Suit and only surrendered that aspect of the case necessary to enable the Higher court determine the reference. In the light of the above, it was further argued that it is the lower court that can make an order in respect of the substantive Suit – whether to stay proceedings or grant an injunction pending the determination of the reference.
He observed that if as in this case, the Federal High court did not stay proceedings, but even discharged an interim injunction it had previously made, the avenue open to the Plaintiffs is to appeal under Section 241 of the constitution against the discharge, and in the course of hearing the appeal, ask for any preservative order. In this wise, he maintained that sentiment has no place in legal jurisprudence as a Court is a statutory creation, and must not go outside those statutory provisions. Accordingly, it was posited that the court of Appeal cannot purport to exercise power granted to it under section 240 and 241(1) (f) (11) of the constitution while seised of a reference under Section 295(2).
In respect of sub-Issue B, on STAY OF EXECUTION/STAY OF PROCEEDINGS/INTERLOCUTORY INJUNCTION IN THE ABSENCE OF AN APPEAL; the learned Senior Counsel again, cited the cases of Uchechukwu v. Belonwu (2009) ALL FWLR (Pt’ 458) 271, 284 and Buhari v. INEC (2009) ALL FWLR (Pt.459) 419, 554; to submit that every Court’ is a creation of statute and the powers, jurisdiction, or competence of any Court are as prescribed and / or circumscribed by the statute, be it the constitution or the ordinary statutory law. He then adopted the earlier submission on Section 295 of the constitution to assert that nowhere is a higher court vested with the power and jurisdiction of the lower court that made the reference while deciding the question referred to it; and that in addition, no appellate court has been given jurisdiction or execution/proceedings when powers to grant an injunction, or stay of there is no appeal pending before it, or contemplated.
The said section of the constitution rather limits the scope of power granted to the higher court, and similarly, neither provisions of the court of Appeal Act or Rules; particularly Part 11 of the Act, 2004, which is headed Appeals in Civil Cases nor its Section 15 which gives the Court of Appeal general powers, confers the court the power to grant interlocutory injunction. The said section 15, he emphasized, expressly ties down to the determination of the real question in controversy in the appeal. He also referred to specific provisions of Sections 13, 17 and 26 providing for supplemental powers of court of Appeal, which do not cover the grant of interlocutory injunction in respect of the specific provisions in the Act or Rules made in relation to the exercise of its jurisdiction under Section 295(2) of the Constitution.
The learned Senior Advocate also alluded to the exception under the old Section 16 of the court of Appeal Act and order 3 Rule 23, of its 1981 Rules as amended for the court of Appeal to vary an order earlier made by a trial court for stay of execution under certain circumstances at the instance of the Applicant who initially applied for an order of stay at the trial court, but sought to apply for better and more favourable terms or conditions as the only circumstance that he needed not to appeal against the original judgment or the order for stay. The cases of Okafor v. Nnaife (1957) 4 NWLR (Pt.64), 129; First Bank of Nigeria Limited v. Doyin Investment Nigeria Limited (1989) 1 NWLR (Pt.99) 634: Sentinel Assurance Company Limited v. SGBN (1992) 2 NWLR (pt.224) 459 Lingo (Nig.) Limited v. Nwodo Esq. (2003) 33 WRN 25 and Intercontractors (Nig.) Limited v. UAC of Nigeria Limited (1988) 2 NWLR (Pt. 76) 303 SC, were all cited in support of the above submission.
He also cited Rastico (Nig.) Ltd. v. S.G.N. (1990) 6 NWLR (pt.158) 608 CA; submitting that the above cases dealt with stay of execution in the appellate Court but that the principles are the same whether the application is for stay of execution, stay of proceedings or interlocutory injunction, provided the application is made to an appellate Court. Fawehinmi v. Akilu (No. 2) (1988) 2 NWLR (Pt. 102) 122; Okoya v. Santili (1990) 2 NWLR (Pt.137). As for Stay of proceedings generally, he asserted that it applies in appeals against interlocutory rulings, while stay of execution relates to substantive judgment. In each case, however, there must be an appeal pending at the appellate Court. Olawunmi & Ors. v. Mohammed & Ors. (1991) 4 NIYLR (Pt. 186) 516; The Provost Alvan Ikoku College of Education Owerri v. Amuneke (1991) 9 NWLR (Pt. 213) 49; Mobil Producing Nigeria Limited v. Ayeni (2008) ALL FWLR (Pt. 403) 1346, 1360; Ogunyemi v. Ejide (2008) ALL FWLR (Pt.403) 400, 406; Kotoye v. Saraki & Anor. (1995) 5 SCNJ 1, 8 were further relied upon to buttress his submission on this point.
The learned SAN also alluded to Order 4 Rules 4, 5 and 6, which show that the exercise of the powers of the Court are limited to when it is exercising its appellate jurisdiction adding that only Rule I is a general provision, and it is expressly limited to an appeal, submitting further that it is only Rule 1 that touches on a reference, but then it is a reference made to an official or special referee, which certainly is not the case here under Section 295 (2) of the Constitution.
From the foregoing, he therefore contended, and urged the Court to so hold, that there are no express provisions granting it power to make orders of injunctions when dealing with references coming to it under Section 295(2) of the Constitution.
C. EX-PARTE APPLICATION IN THE COURT OF APPEAL.
On this sub-issue, the learned Senior counsel cited the provision of order 7 Rule 1 of the Court of Appeal Rules, 2007, which he submitted is all embracing and without exception in the use of the mandatory word “shall”. Placing reliance on the cases of Riruwal & ors. v. Shekarau (2009) ALL FWLR (pt.461) 975, 989 and Sincerity & Truth Multi Purpose Co-op. Society Limited v. Ememe (2002) 11 WRN 16, on the meaning of “application” in legal parlance or court procedure, he insisted that an application is a motion Exparte or a motion on Notice but that Order 7, however, has expressly proscribed ex-parte applications in the Court of Appeal; the words of Order 7 Rule 1 being clear and unambiguous and must be accorded their natural and ordinary meaning.
concluding on this point, the learned Senior counsel took the view that, assuming the court of Appeal has power or jurisdiction to make an order of injunction under Section 295(2) of the constitution, it will not apply where the Motion is brought ex-parte. Accordingly, he urged us on this ground alone to discharge the ex-parte order of injunction issued on 11/11/2010.
D. WANT OF JURISDICTION UNDER THE INHERENT POWER OF COURT, on this sub-issue, the learned Senior counsel referred us to Blacks Law Dictionary 6th Edition at Page 782, where the term “inherent power of court” is defined and the dictum of Iguh, JSC in Gombe V.P.W Nigeria Limited, (1995) 6 NWLR (Pt.402); where the learned justice of the Supreme Court distinguished between jurisdiction and inherent powers of the court and further to the case of Esiri v. Idika & ors (1987) ANLR 529, on the condition precedent to the exercise of the inherent power of the court. Citing again the case of Agu v. Odofin (1992) 3 SCNJ 161 at 172; he maintained that, this Court, like the name suggests, is an appeal Court and that the substantive matter under which this application has been brought, which gave birth to this order is a matter brought before the Federal High Court, Enugu and which is still very much alive in that Court. What is before this court, he further maintained, is a reference of a substantial point of law pertaining to the interpretation of the Constitution pursuant to Section 295 thereof. In the light of the above submissions and the earlier ones on the previous sub-issues, the learned counsel agitated that if our appellate jurisdiction is entirely statutory and, the subject matter of this application is a substantive matter still pending before the Federal High Court, Enugu, from which only a reference has been made to us on a substantial point of law, it follows that the only way in which we can have and exercise that our jurisdiction over the subject matter is by way of appeal. It was further submitted that until there is an appeal before us on any point whether final or interlocutory; our jurisdiction in this matter is limited to answering the substantial points of law referred to us by the Court below.
To him, anything short of or beyond that cannot properly invoke jurisdiction in this matter as the power to entertain Motions under order 7 and Order 4 of our Rules is not a power that can be exercised outside the enabling statutory provisions, more so, as Section 6(6)(a) of the 1999 Constitution which deals with inherent powers have been held to be of assistance only where there is a valid exercise of jurisdiction. Agu v. Odolin (Supra) refers.
In sum, the learned Senior Advocate concluded his submissions on this sub-issue by contending and relying on Ezeonu v. Acheze (1991)5 NWLR (Pt.157) 38 of page 648, per Niki Tobi, JCA (as he then was); that where a Court has no jurisdiction on a subject matter either:-
a. because it has not been enabled by statute, the constitution or its rules;
b. there is a feature in the case which prevents it from exercising its jurisdiction; or
c. the case does not come before it initiated by due process of law; it cannot exercise its inherent jurisdiction in the matter; for inherent jurisdiction, like equity which follows the law, only exists where there it jurisdiction;
E. INJUNCTION UNDER THE ELECTORAL ACT, 2010; on this sub-issue, the learned Senior Advocate reflected on the provisions of Sections 1(2), I4(1) of the 1999 Constitution on Fundamental objectives and Directive Principles of State Policy and Sections 222 and 223 which empower political parties with monopoly to canvass for votes and to present candidates for political offices and the need to register their constitutions with the regulatory body, the Independent National Electoral commission (INEC). He also drew our attention to the fact that the political parties Constitutions and rules shall provide for the periodical election on a democratic basis of the principal officers and members of the executive committee or other government body of the political party.
According to him, since 2006, the Electoral Act in the determination to enforce the above began to limit the powers of nomination of candidates for political offices by political parties and that Section 34(2) of Electoral Act, 2006, limited substitution of nominated candidates except for cogent and verifiable reasons as exemplified in the decisions in Amaechi v. INEC & Ors (2008) 1 SC; Ugwu v. Ararume (2007) 12 NWLR (Pt.1048) 4: Ehinlawon v. Oke (2008) NWLR (Pt.1113) 357. He hinted that under the Electoral Act, 2010, the legislature went further in Section 87 titled “Nomination of Candidates by Parties” to provide as follows that:-
1. A political party seeking to nominate candidates for elections under this Act shall hold primaries for aspirants to all elective positions.
2. The procedure for the nomination of candidates by political parties for the various elective positions shall be by direct or indirect primaries.
3. A political party that adopts the direct primaries procedure shall ensure that all aspirants are given squall opportunity of being voted for by members of the party.
4. (b) In the case of nominations to the position of Governorship candidate, a political party shall, where they intend to sponsor candidates (i) hold special congress in each of the local government areas of the State with delegates voting for each of the aspirants at the Congress to be held in designated centres on specified dates.
7. A political party that adopts the system of indirect primaries for the choice of its candidates shall clearly outline in its constitution and rules the procedure for the democratic election of delegates to vote at the convention, congress or meeting.
11. Nothing in the section shall empower the courts to stop the holding of primaries or general election under this act pending the determination of the suit (emphasis supplied)
It was therefore submitted from the foregoing, that pursuant to Section 87 of the Electoral Act, a political party sponsoring a candidate for an elective political office must hold primaries, whether direct or indirect. The election of a Congress is the first prelude to the holding of indirect primaries. Under Section 87(10), a complaint as to any irregularity respecting the nomination of a candidate of a political party for election is justiceable at the Federal or State High Court. But while seised of the case, no court has jurisdiction or is empowered to stop the holding of primaries pending the determination of the suit.
In his view, the Court of Appeal is without jurisdiction under Section 87(11) Electoral Act, 2010 to grant any injunction stopping the holding of primaries pending the determination of the substantive Suit; the words of Section 87(11) being clear, precise, unambiguous and must therefore receive their literal interpretation. In the premises, he reiterated that the Court of Appeal was without jurisdiction to have issued the ex-parte injunction as done on 11/11/2010 or to grant the interlocutory injunction being prayed for. Rather, he urged us that this court must set aside its ex-parte injunction and strike out the Motion for Interlocutory injunction.
In the address on the issues formulated by the learned Senior Advocate on behalf of the Applicants/Respondents, Chief (Mrs.) Offiah (SAN) argued Issues Numbers One and Two together and beginning with the order of interim and interlocutory injunction which is sought to be discharged, and/or the hearing refused, the learned Senior Counsel reflected on the discretionary and equitable nature of injunctive orders which are made in order to protect the res of a suit or rights of parties therein from being dissipated or rendered pyrrhic pending the determination of the legal rights between the parties. This, according to her is because justice is not a one way traffic but primarily for the court, the applicant and the Respondent or Plaintiffs and Defendants as the case may be, and the society at large. Therefore, an interlocutory injunction may be prohibitory or mandatory, she continued.
She cited the dictum of Nnaemeka Agu JSC (Rtd) of the Supreme Court in Kotoye v. C.B.N. (1989) AU NLR 76 at 93; on the distinction between interim and interlocutory injunction to buttress the point that the making of an order of injunction, ex parte or interim order is not unconstitutional and that same can be utilized by any court in cases of real emergency or urgency; for instance, where it is impossible to give notice of motion or where such notice of motion if already given the same may not be expeditiously determined without exposing the res to danger of dissipation. In the absence of such an emergency or urgency, a court must be very cautious in granting an ex parte injunction as the procedure may be easily abused by litigants, she noted. It was her submission that the order would appropriately be made when the circumstances are urgent and compelling such as to leave the court with no other alternative in preventing an anticipated injury of a grave nature. Attamah v. The Anglican Bishop of the Niger (1999) 3 NWLR (pt.633) 6; Ogbonna v. N.U.R.T.W. Workers (1990) 3 NWLR (pt.141) 696; Nigerian Cement Co. Ltd. v. Nigerian Railway Corporation (12) 1 NWLR (pt.220) 747, paras. D – H, were all cited to further argue that Courts being courts of law and equity have’ not only an inherent power to protect the res in any matter or issue before it, but more importantly a discretionary power to do so which power and discretion must be exercised judicially and judiciously same being circumscribed by law and is inherent in the court.
On the 2nd Defendant’s contention that the order of this court be discharged on the grounds that the court lacked jurisdiction the learned Senior counsel alluded to the ground as articulated by his learned senior colleague; submitting that quite contrary to the argument of the 2nd Respondent at paragraphs 4.05 of their written argument to the effect that provisions of the Constitution are read disjointedly, encapsulating it in the maxim expression unius est expressio alterius, it is a well known principle of law that the provisions of a statute is read holistically in order to determine the true intent of the legislature. She posited that while the provisions of section 6(1) of the 1999 Constitution confers judicial powers on all courts being a creation of law, section 6(6) provides for the inherent jurisdiction of courts.
According the learned Chief, this general provision conferring judicial power on courts being creation of statute must be read contemporaneously with the provisions of the constitution conferring jurisdiction on any court of law particularly because of the provisions of section 6(6) (a) above quoted. Turning to the provision of section 295(1) (2) which confers jurisdiction on the court to give its opinion on reference of questions of law that; it was noted that a community reading of sections 6(6) and section 295(2) confers on the court both jurisdiction and judicial powers to entertain matters on points of law referred to it, and judicial powers to make orders by virtue of it being a court of law created under the Constitution.
From the foregoing, the learned SAN distilled the following facts:- 1. That the court has jurisdiction to entertain matters or reference on points of law from the Federal High Court 2. That the powers conferred on the court pursuant to the provisions of section 295(2) does not extinguish or derogate from the general powers of this court as a court of law as well as its judicial and inherent powers or powers to sanction provided for in the same Constitution as such powers are concurrently existent and exercisable by the court at all times;
3. Nothing in section 295(2) prohibits the court of Appeal from being guided by and applying all well known principles of law established by decided cases. Case laws form part of our corpus legis; 4. Section 6(6)(b) of the constitution is primarily and basically designed to describe the nature and extent of judicial power vested in the court and section 295 cannot be read in isolation from it or as if same runs parallel to section 6(6)(b); adding that the provisions of these sections are not mutually exclusive but are complimentarily exercised by court.
Citing the Supreme Court case of E.F. Ltd & Anor. U.B.A. Plc (2006) vol. 142 LRCN at 2702, per Ogbuagu, JSC; and Unilife Dev. Co. Ltd v. Adeshigbin (2001) 4 NWLR (pt. 70a); where it was further held that:
“It is correct that the true meaning of the words used and the intention of the legislature in a written constitution can best be properly understood if the statute is considered as a whole ….to understand and appreciate a piece of legislation a court must look beyond the periphery or prescient of the law to interpret it and give it the appropriate and correct meaning even if it involves enactment.” R. T., N.A.C.H.P.N. V. M & H.W.U.N. (2008) 2 NWLR (pt 1072) at 575 pp. 622 – 633;
She submitted still on this point that it is a fundamental rule of construction that the several parts making up a statute must be interpreted harmoniously so that the various parts of the instrument are not brought in conflict with their natural meanings, the best construction being to make one section expound the other and so make all the parts agree and that effect must so far as possible be given to every word and every clause.
Thus in the light of the above principles, it was further argued that the application of the 2nd Defendant to discharge the interim order is a misconception of the law which stems from a lack of appreciation of the terms and relationship between judicial power and jurisdiction as provided for in section 6 and section 295 respectively of the 1999 Constitution of the Federal Republic of Nigeria. The learned SAN maintained that there is a referral by the Federal High Court to this Court and that the Court of Appeal under sections 295 of the constitution has the jurisdiction to entertain and dispose of the points referred to it and in exercising that jurisdictional power conferred on it by section 295 of the Constitution the court can, pursuant to section 6(6)(a) exercise its judicial power by making any appropriate order for the preservation of the res and maintenance of the status quo between the parties before it, she contended.
She reiterated that any application for injunction calls for an exercise of the discretion of the court seised of the matter and the court exercises such discretion judicially and judiciously. In other words in accordance with the judicial power of the court, taking into accounts the peculiar facts and circumstances of each case. She took the view that the Judicial power which the courts possess means the fundamental power which every sovereign authority must of necessity have enabling it to decide controversies between its subjects or between itself and its subject and explained that the exercise of this power does not begin until some tribunal, which has power to give an authoritative or binding decision, whether subject to appeal or not’ is called upon to take action. In other words, judicial powers constitute the fundamental and inherent authority a court has to adjudicate and decide any matter before it.
As for JURISDICTION, the learned Chief was of the view it refers to the scope of authority, which a court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for decision. A person who claims a civil right is entitled to invoke both the judicial power of the court, and the jurisdiction of the court to decide whether such a right exists or not, and if it does exist, to decide whether facts have been averred to show an infringement of such rights. Abacha v. FRN (2006) 4 NWLR (pt. 970) at 239, Bronik Motors v. Wema Bank Ltd (1983) 1 SCNLR 296 and S.P.D.C.N. v. Nwawka (2003) 6 NWLR (pt. 815) at 184.
Accordingly, it was asserted that the court had the jurisdiction under section 15 of the court of Appeal Act to order make a preservative order on 11/11/2010 and it made the same exercising its judicial power under the Constitution of the Federal Republic of Nigeria.
On the contention of the learned Professor on behalf of the 2nd Defendant also that the order of the court be discharged on the grounds of:
(1) Want of Jurisdiction under the court of Appeal Act Sections 15, 17 and 26; the learned Chief in reply to this, stated that the law that governs all proceedings in the Court of Appeal is the Court of Appeal Act and the Court of Appeal Rules and that a different set of law or rules, does not stand to apply to appeals, while a separate or different set of Act or Rules apply, when a matter is referred or a case is stated or when the Court exercises original or supervisory jurisdiction’
For the above submission, she referred us to section 8 of the court of Appeal Act which provides that:
“The practice and procedure of the court of Appeal shall be in accordance with this Act and subject to this Act, in accordance with the Rules of Court”; and insisted that the said Section 8 of the court of Appeal Act does not distinguish between the Act or Rules of court to be invoked by the court in appellate proceedings or in cases of reference. She argued further on this premise that Section 8 of the Court of Appeal Act was not worded in such a way that it is subject to section 295 of the 1999 Constitution more so when the 1999 Constitution of the Federal Republic of Nigeria in section 315 recognizes all existing laws including the Court of Appeal Act, No decision of Court has rendered the provisions of section 8 of the Court of Appeal Act inconsistent with the Constitution, particularly Section 8, she insisted.
Reference was again made to Section 15 of the Court of Appeal Act which is boldly headed as; “GENERAL POWERS OF THE COURT OF APPEAL to further argue that no provision of the 1999 Constitution or the Court of Appeal Act or any decided authority has stated that this provision can only be invoked and or applied when the court exercises its appellate jurisdiction. This is especially so, when read in conjunction with section 8 of the Court of Appeal Act.
From the foregoing, she contended that three distinct points stand out which are that:-
+ That the Court of Appeal is governed by the Court of Appeal Act and by section 8 of the Court of Appeal Act, is also governed by the Court of Appeal Rules.
+ The provisions of section 15 refer to proceedings which mean any proceedings and not necessarily an appeal.
From the above, it was posited that the powers of the court under sections 17 and 22 are captured in section 15 and the Courts will be guided by it, in invoking section 8 of the Court of Appeal Act. Citing again C.G.G’ Nig Ltd v. Ogu (2005) I NWLR (pt. 927) at 366; per Niki Tobi delivering the lead judgment once again reiterated the position of the court, and the contribution of Lordship Akintan JSC at pages 385 in the same case, the learned SAN emphasized that the court had jurisdiction under the Court of Appeal Act and its Rules to make the orders now sought to be discharged. She maintained also that the Plaintiffs placed before the Court all the necessary material to enable the court determine whether the res was in imminent danger of dissipation hence the interim order.
(2) Want of Jurisdiction under the Court of Appeal Rules Order 7 Rules 1, 2 and Order 4:
On this sub-issue, Chief Offiah for the Respondents in the application to discharge alluded to the arguments of his learned friend on the other side and contended per contra that the Court when seised of a case and in the exercise of its judicial functions is guided by its Laws and Rules (Section 8 of the Court of Appeal Act (Supra) referred), adding that the 2nd Defendant admitted that there was a reference to this court but is not contending that the court lacks jurisdiction under any of the principles enunciated in Madukolum v. Nkemdilim to entertain the matter referred. She further pointed to the other contentions of the Learned SAN on behalf of the Applicant seeking for the setting aside of the interim injunction and adopted their submission on ground (1) of Defendants contention.
In addition thereto she also submitted that in considering an application for interim injunction the principle of law is that the court is guided by the facts deposed to in the affidavit adding that the question or issue to be determined at the moment of the application is whether the applicant has placed material facts in his affidavit to enable the court determine whether the res is in imminent danger of being dissipated’ She went on to cite the decision of the Supreme Court in Prof. Charles Chukwuma Soludo v. Mr. Valentine Osigbo (2009) 12 SC pt. II; to submit that in granting an interim injunction the court is not entitled to consider the substance of the main suit or case or appeal and that this was the exact position of the court in granting the preservatory order on 11/11/2010 as the court did not purport to sit on appeal over the reference or consider extraneous issues outside the reference but considered the application for injunction within the scope and conditions guiding the same.
She asserted that the reverse would have been wrong if after making the preservatory order the Court went ahead to recognize a right for or against any of the parties as was in fact the scenario in the Soludo case cited above, where at the trial court, the 3rd to the 6th Respondents suit was struck out on grounds of lack ofjurisdiction but they appealed to the court of appeal which in effect placed an order of injunction on the Appellant on the 1st Appellant who was nominated by the Cross- Appellant; to wit: PDP; and the Supreme Court held that:
“…there is no doubt that the Court of Appeal could properly make preservatory orders which will
ensure that the res in dispute is not destroyed such as lo foist on the court a situation of complete helplessness should the appeal succeed. But the court of Appeal did more than that it pre recognized right in the 1st to 4rh Respondents to seek reliefs from the court even at a time when jurisdiction was still to be determined…the court of Appeal should only hove given an order which confines the parties to the state of things as it was before litigation started”
She urged the court to note that the Supreme court held that in the above case that it was right for the Court of Appeal to make a preservatory order in the interim even though there was an issue of jurisdiction yet unresolved. The Supreme Court only questioned the right of the court to make substantive orders as regards the rights of the parties at that stage.
In the light of the above, it was submitted that the argument of the 2nd Defendant in paragraphs 4.20 – 4.27 is unfounded in law as all that this court did at that stage was to maintain the status quo of the validly elected executives in 2008 pending the determination of the motion on notice for interlocutory injunction already filed and pending in the court.
As regards the argument of the objectors in paragraph 2.04-2.06 of their address, she was of the considered view that it is misconceived as they do not represent the true state of facts. Furthermore, they are arguments proper only at the stage of the substantive case since the court will not delve into the facts which constitute the crux of the substantive application and the law is trite that at the stage of interlocutory application the court should not attempt to go into the merit of the matter in controversy…. i.e. the questions referred by the lower court in this case. Registered Trustees of P.C.N- v- Registered Trustees of Ansar-Ud-Deen Society of Nigeria (2000) 5 NWLR (pt. 657) page 368 referred.
The learned Chief then drew our attention the proper background facts leading up to the case in the court below and the reference made to this court as reflected in their address and Exhibit VINEC written by the 2nd to them that on 27th September, 2010 the first Defendant wrote the letter Exhibit V INEC to the 2nd Defendant in which they stated that:-
“While noticing that Congresses were successfully held in Kano, Kalsina and Zamfara States the congress of eight (8) States Chapters of your party remain inconclusive having failed to hold in line Commission would not relate with illegally Constituted State executive Committees on Inv matters relating to the 2011 General Elections. In effect, the Commission may not accept the actions and decisions of People Democratic Party (PDP) State Executive Committees in Anambra, Bayelsa, Delta, Enugu, Imo, Kogi, Oyo and Plateau States until Executives are elected in line with relevant provisions of your party’s Constitution…”
Following the above the Plaintiffs instituted the action in the Federal High Court which has given rise to the reference to this Honourable Court. In that suit the Plaintiffs essentially raised the following questions/issues for determination i.e:
“Whether the 1st Defendant as an Executive, non judicial agency of government has the power under the provisions of the Electoral Act, 2006 and or the Electoral Act, 2010 and or under the Independent National Election Commission act cap. 15 LFN, 2004 and/or the Constitution of the Federal Republic of Nigeria, 1999 and/or any other legislation, to pronounce a Stale Executive Committee of a political parry illegal or illegally constituted on the ground, as perceived by the Defendant, that the general congress at which they were elected was not in line with the provisions of the party’s constitution and/or any other ground.
A priori whether INEC has any constitutional or statutory powers to impose sanctions on a political party in respect of matters relating to the domestic affairs of such a political party, and whether a political party is obliged to conform with such sanctions.”
Without waiting for the court to determine the above very crucial issues raised in the substantive suit, the 2nd Defendant proceeded to set up structures for the purposes of convening a congress at which (sic) of proposes to elect another/fresh State Executive Committee of the Party to replace the Plaintiff in conformity with the sanctions imposed by INEC in its surd letter of 27th September, 2010. This action if allowed to take place would totally overreach and dissipate the issue at stake in the substantive case and leave the same as an empty shell without any contents whatsoever. There would be absolutely nothing left for the Court to decide either in the matter referred or the main suit. Further proceeding in the case would be a mere academic exercise.
It is precisely in the light of the above facts and circumstances which are amply borne out in the affidavit in support of the applications for both the interim and interlocutory injunction according to the learned Chief, that they submit that the court rightly made an order preserving the status quo and is still being urged to make a preservative order of interlocutory injunction pending the determination of the reference.
3. On whether the 2nd Dependant/Respondent/Applicant/objector has sufficiently satisfied the conditions stated by law for the discharge of this Court’s interim order of injunction, she referred us to Bogban v. Diwhre (2005) 10 NWLR (pt.951) Pg. 274 at 297; where it was held that:
The grounds for setting aside or discharging an order of interim injunction made ex parte are clearly well stated. They include inter alia where the application was granted on a suppression or misrepresentation of material facts, or it was irregular”, adding that no fact alleging misrepresentation or fraud or suppression of facts can be located within the ambience of the affidavit of the 2nd Defendant or in their written address in support.
Other than grounds of jurisdiction which has been exhaustively argued the Learned Chief adopted same argument in arguing this issue.
On the 2nd Defendant’s argument that the ex parte application should not have been granted because according to the learned Professor’s understanding of the rules of the court, all applications in the court of Appeal must be on notice as provided for in the court of Appeal Rules order 7, Rule 1 etc; she took the view that the argument albeit unfounded in law is also clearly contradictory as litany of authorities show that one needs to consider the grounds for setting aside or discharging an order of interim injunction which are captured in the case earlier cited above. The learned Senior counsel to the plaintiffs /Applicants & respondents posited that Rules of court are handmaids of justice and operate as tools for enthroning justice and not to stifle it, adding that the courts are not tied slavishly to their rules. Therefore it accords with all common sense and all well known principles of law that an interim injunction can be granted by the court in appropriate circumstances for Rules are made for the administration of justice and if the justice of the case demands that the res be protected in the interim so as not to dissipate the substratum of the case pending the hearing of same, strict adherence to the rules of court will defeat the aim of equity and justice. She further relied on the authority of Uchechukwu v. Belonwu (2009)All FWLR (pt.458) at 271;where the court restated the principle that Rules of court are made towards attaining substantial justice to buttress the above submission.
On the submissions of the Learned Senior counsel for the objector/Applicant touching on jurisdiction pursuant to sections 295 and section 6(6) (a) of the Constitution, she maintained that on the strength of the arguments already proffered above, wherein the Plaintiffs have shown that the court has jurisdiction, the argument of the 2nd Defendant in this regard cannot be sustained in law. According to her, the argument of the 2nd Defendant in paragraphs 4.11 is unfounded in law and does not exhibit a proper understanding and or interpretation of the 1999 Constitution; as sections 295 and 6(6)(a) 1999 Constitution vest in the court both jurisdiction and judicial powers to preserve the res of any subject matter so as not to foist on the court a situation of fait accompli.
Learned Senior Advocate further submitted that Equity protects relationships of trust and confidence, and grants to the court discretionary approach to the grant of relief where justice demands it’ She relied on Ogbeide v. Osifo (2007) 3 NWLR (pt. 1022) p.423 at 442 – 443; Fasesin v. Oyerinde (1997) 11 NWLR (Pt.530); Ibrahim v. Balogun (1999) 7 NWLR (pt.610) p.254 at 271 and Anuruba v. E.C.B. Ltd (2005) 10 NWLR (pt. 933) p. 321 at 187; still on the maxims of equity to further posit that anybody approaching the court of equity must not only do equity but he must come with clean hands and ensure that the facts are not mis interpreted but the Defendant has failed to identify any suppression or misrepresentation to warrant a discharge of the interim preservatory order already made or to prevent the making of the interlocutory order now being sought by the Plaintiffs.
The Learned Senior Counsel went on to x-ray and distinguished the case of Labour Party v. INEC referred to and relied upon by the 2nd Defendant submitting that the painstaking narration of the above case was done to show that the case above is completely inapplicable to the issue at hand. According to her, while the case of Labour Party v. INEC deals with an issue where the Appellant felt that the Court of Appeal ought not to have touched on the substantiality of the matter before remitting it back, the issue in the present reference before the court is whether the Court of Appeal was wrong in exercising its judicial powers under the constitution and Court of Appeal Act thereby granting the ex parte application and whether the court can in the circumstance grant the interlocutory injunction sought by the plaintiff.
– Furthermore, it is to be noted that the principles enunciated in that case are principles guiding a reference, coupled with the validity of appealing against a judgment of the Court of Appeal pronounced on the issue referred to it.
– While in this case the issue under contention is the powers of the court to grant preservatory orders in the interim’ when a reference has been made to it and the reference is yet to be determined.
– The only issue which could be an area of convergence for the parties is that the rules of the Court of Appeal were the applicable rules which guided the proceedings in the court of appeal when the issues referred to the court was being determined.
Against this back ground she asserted that the case is in applicable to the issues at hand at the moment and even in the area where it is applicable same is in favour of the argument that they had canvassed at length. Reliance was then placed on the case of O.N.L. v. Dyktrade (2007) 12 M.J.S.C. 115; where Muhammad, JSC; in this lead judgment stated thus:
“… I would like lo pause here and draw the attention of learned counsel for the Appellant that it is
not proper to try to give a diametrically opposed meaning to a decision of any court.”
INJUNCTION UNDER THE ELECTORAL ACT.
In her reaction to the Learned Professor’s /Senior Advocates’ argument in the 2nd Defendant/objector/Respondent/Applicant’s paragraph 4.30 of their written address that under section 87 (11) of the Electoral Act,2010, the court lacks jurisdiction to grant an injunction to stop the holding of the primaries, she reproduced the provision the section to counter that the objector’s argument therein as misconceived on the grounds that under Article 12.41, of the PDP Constitution, a State Congress shall be to:
(a) Approve the budget of the State Congress of the party;
(b) Elect officers of the State Executive Committee;
(c) Elect governorship candidate of the party;
(d)Receive reports from officers of the party; and
(e) Receive the Auditor’s report.
The Learned Senior Counsel for the Plaintiffs/Applicants/Respondents pointed out that the state Congress which they seek to restrain the Defendants from holding is for the purpose as provided in article 12.41(b) i.e. Congress to elect officers of the State Executive Committee for PDP in Enugu State, This is the congress which if is allowed to hold, would amount to the 2nd Defendant having conformed with the sanction imposed by the 1st Defendant in its letter of 27th September, 2010. This is the Congress which if it holds, would have dissipated the issues in contention, both in the substantive suit and the reference to this court. The holding of this congress would present this court and the court below with a situation of fait accompli thereby rendering whatever proceedings this court and the court below may embark upon a mere academic exercise, she insisted.
She further pointed out that in contradistinction to the above referred congress, S. 12.41(c) also provides for a congress which may be convened to elect governorship candidate of the Party i.e. the Congress for the purpose of holding primaries election of the Party. It was then submitted, that this second congress is the one envisaged in section 87(11) of the Electoral Act 2010 and the courts are prohibited thereby from stopping its holding by an order for interim/interlocutory injunction. With regards to their Further Affidavit, the Plaintiffs/Applicants/Respondents according to her, have unreservedly affirmed that as a currently sitting State Executive Committee of PDP in Enugu State, they are willing, able and ready to exercise their functions under Article 12.42 of the same PDP Constitution to convene a congress and hold primaries for the election of a governorship candidate of the party. The Plaintiffs do not ask the court to restrain them from performing this function as the same would offend section 87(11) of the Electoral Act 2010.
The 2nd Defendant has, either deliberately or by error in appreciating the provisions of their own party constitution, distracted this Courts attention from this vital fact concerning the different function of the State Congress as clearly provided for in Article 12.41 of the PDP Constitution; she further maintained.
In the light of this clear distinction of the function of a State Congress for the purposes of electing officers of a State Executive Committee (which is issue here) and state congress for the purposes of electing the governorship candidate for (primaries) she submitted that the 2nd Defendants’ arguments with regard to the effect of section 87 (11) of the Electoral Act, cannot apply to the application for interim/interlocutory orders for injunction.
Commenting on some of the cases relied on by the 2nd defendant in respect of their arguments on the jurisdiction of the Court under Section 295 (1) and (2) of the 1999 Constitution in relation to the grant of interim and interlocutory preservative orders, the learned Chief starting from the case of Director of Public Prosecution v. Chike Obi (No. 2) 1961 ALL NLR page 477 to the most recent case of Labour Party v. I.N.E.C (2009) 6 NWLR Pt. 1137 page 315, submitted on the contrary that none of these cases copiously referred to by her learned brothers silk is to the effect that when this court is exercising its powers under Section 295 (1) or (2) of the Constitution, it loses its inherent powers to make orders to preserve the res.
Anchoring her final submission on the case of Ezeokafor v. Ezeilo (1999) 9 NWLR Pt. 619 pages 513, S. C., per Achike, J.S.C (of blessed memory); it was contended that the moment reference is made to this Court under Section 295 of the Constitution, the matter comes under the “custody” of the court and we are entitled to make orders including interim and interlocutory orders of injunction for the preservation of the res so that any subsequent order of this court or any other court may not be rendered nugatory, and it becomes more imperative in situations such as this where the defendants are in a hurry to dissipate the subject matter of the reference.
I have taken the time to reproduce almost verbatim the copious submissions of the learned Senior counsel on both sides of the divide in respect of the three applications, namely:
i. The Notice of Preliminary Objection dated 11/11/2010 filed by the 2nd Respondent challenging the jurisdiction of the court of Appeal to hear and or determine any Motion for Injunction pending the determination of the reference made to it;
ii. Motion on Notice for Interlocutory Injunction filed by the Plaintiffs/Respondents on 11/11/2010 seeking inter alia to stop the holding of Enugu State PDP Congress until the determination of the reference pending at the Court of Appeal; and
iii. Motion on Notice filed by 2nd Respondent, on 18/11/2010 for the discharge of the ex-parte injunction granted by the court on 11/1 1/2010 on the application of the Plaintiffs/Applicant.
In view of the threshold nature of the preliminary objection, it is only apt to thrash it out before delving into the substantive applications for either setting aside and/or for interlocutory injunction, if necessary. Accordingly, in the determination of the merits or demerits of the three Applications before this court, I shall adopt the issues and sub – issues formulated for determination by the 2nd Defendant/Respondent/objector/Applicant and in so doing; I shall follow them seriatim as argued by the learned Senior Advocates on behalf of the Objector thus:-
1. Whether the Court of Appeal has jurisdiction, express or inherent, to grant any order of injunction, ex-parte, interim, interlocutory and/or perpetual in a matter cognizable by it under Section 295 of the 1999 Constitution and in view of the provisions of Section 87(11) of the Electoral Act, 2010?
Sub – Issue A:
Whether a higher court exercising jurisdiction pursuant to section 295(1)(2) of the 1999 Constitution can lawfully assume jurisdiction to make any order of interlocutory injunction?
As was rightly observed by the respective learned Senior Advocates in the Annexure to the  irrespective Affidavits, Counter/Further Affidavits and Addresses; the learned trial Judge on the 10th day of December’ 2010 ordered and directed for the following issues to be referred to the Court of Appeal:
“1a. Whether or not this court can entertain this suit in view of the pendency of a similar matter at the Court of Appeal, Enugu Division in Suit No. CA/E/288/09 between the same parties and on the same subject matter on the issue whether the Federal High Court (sic) have jurisdiction to entertain this type of suit.
b. Whether or not it will not amount to abuse of court process for this court to hear this case, FHC/EN/CS/298/2010 in view of the case pending in this court in Suit No.FHC/EN/CS/283/2008 which this court had already assumed jurisdiction and the matter is presently on appeal at the Court of Appeal, Enugu in Suit No.CA/E/288/2009
2. This Order of reference is made pursuant to Section 295 (1)(a) and (2) of the 1999 Constitution.
3. The Order of 28th October, 20t0for the preservation of status quo is hereby vacated.
4. This matter shall be referred to the Court of Appeal expeditiously and without any further delay”. See Exhibit “VA” to the Further Affidavit in Support of Motion for Interlocutory Injunction, and Reply to Counter – Affidavit of the 2nd Defendant/Respondent; Exhibit “vinD” to the Plaintiffs/Respondents’ counter – Affidavit to the Affidavit, the Verifying Affidavit, Affidavit of Urgency and Further Affidavit of the 2nd Defendant/Applicant in support of the motion to discharge, Exhibit-“AA” annexed to the Further Affidavit In Support of the Motion Ex-parte filed in this Court on the 11th of the November 2010 and page 115 of the hand written/ photocopied Record of Proceedings of the Federal High Court, Enugu, of 10th November, 2010.
Now, Section 295(2) of the Constitution of the Federal Republic of Nigeria 1999 which vests this court with the jurisdiction to receive and give opinion on questions of law or interpretation of the constitution, emanating from proceedings in the Federal High Court and High Court provides inter alia:-
“2. Where any question as to the interpretation of this Constitution arises in any proceeding in the Federal High Court or High Court, and the Court is of the opinion that the question involves a substantial question of law, the court may, and shall if any party to the proceedings so requests, refer the question to the Court of Appeal; and where any question is referred in pursuance of this subsection, the court shall give the decision upon the question and the Court in which the case arose shall dispose of the case in accordance with that decision.”
Ordinarily, the provision of the above section of the Constitution is as clear as crystal and without any ambiguity, such that, in line with judicial authorities from this Court and the apex Court too numerous to mention, the wordings of the section ought to be given their natural and simple grammatical expressions. See Awolowo v. Shagari (1979) 6 – 9 SC. 51; per Eso J.S.C; in A.G Ogun State v. Alhaja A. Aburuagba & Ors (1985) 4 S.C. (pt.1) 288 at 383; Jaamal steel structures Ltd. v. ACB Ltd. & Anor (1973) ALL NLR (pt.2) 208; IBWA v. Imano (Nig.) Ltd. & Anor (1987) 7 S.C.N.J (pt.II) 326 at 344 – 345 per Karibi-Whyte, JSC.
In the recent case of Registered Trustees v. MHWUN (2008) 34 NSCQR 321 at 358 and 373 _ 374; per Mukhtar, JSC, it was emphasised that once a court gives the provisions of a law that is not ambiguous, the grammatical and ordinary interpretation to conform with the intent of the legislature when the law was made or passed, an appellate court cannot fault such interpretation, for the cardinal principle of interpretation would have been met.
In the case at hand, the intriguing question which calls for answer is whether the court of Appeal in the exercise of its jurisdiction on referral brought to it from the Federal High Court can make orders for either interim or interlocutory injunction pending the expression of its opinion.
The learned Senior Advocates led by Professor Okafor on behalf of the 2nd Defendant/Respondent/Objector have in their Address spanning thirteen pages (paragraph 4.04 to 3.3 I of their written Address) after citing most authorities submitted in sum that:-
1. Reference under section 295 of the constitution is not an appeal nor within the appellate or original jurisdiction of the Court of Appeal as expressly stipulated under sections 239 and 240 of the 1999 constitution and encapsulated in the Latin maxim “expressio unis est exclusio alterius”; the mention of one thing is the exclusion of the other principle of interpretation of statutes.
2. Under section 295 of the Constitution, the Court of Appeal to which a reference is made from a lower court, is not dominis litis of the substantive suit as against the powers of the court under section 15 of the Court of Appeal Act.
3. The only jurisdiction the court of Appeal has in a referral matter under section 295 of the constitution is to give its decision upon the questions sent to it but lacks the discretion to go outside the task of giving its decisions upon the question.
4. The Court of Appeal has no power to determine the suit but such power belongs to the court from whenb
  the reference came even though a party can appeal against the decision of the Court of Appeal on the question referred to it.
5. The proceedings referred to it must be regarded as distinct from the proceedings in the course of which the question arose in the lower court.
6. The powers conferred by section 295 of the constitution do not tantamount to a transfer of the case from the lower court to the Court of Appeal.
In African Newspapers & Ors. v. The FRN (1985)2 NITLR (pt.6) 137 at 140; the supreme Court in the interpretation of section 259(3) of the 1979 constitution which is in pari materia with section 295(2) of the 1999 constitution now the subject of interpretational controversy, had cause to enlighten us on the purposive essence of a reference as made to this Court by the Federal High Court when their Lordships held thus:-
“The purpose of a reference under section 259 of the 1979 constitution is a short, quick, inexpensive procedure when compared with the procedure of appeal, by which the Court below and the parties are able to secure the binding legal opinion of the highest Court of the land without the necessity of wading through the procedural jungle of appeal.”
On the uniqueness of this proceeding, as against the proceedings in the court from when the referral emanated the case of D.P.P v. Obi (No.2) (1961) ALL NLR 477 -480; is very instructive. In that case, the applicant was being tried in the High Court on a criminal charge and the High Court referred a question to the Federal Supreme Court under Section 108(2) of the old constitution of the Federation but the decision of the Federal Supreme Court was not favourable to him. The applicant was subsequently convicted by the High court and he appealed to the Federal Supreme Court.
Before the appeal was determined, the applicant applied for leave to appeal to the Privy Council against the decision of the Federal Supreme court on the reference under section 108(3) of the old constitution of the Federation. It was argued for the Applicant that the decision on the reference was “a final judgment” and that section 114(1) (c) of the Constitution of the Federation conferred on him the power to appeal “as of right”. Brett, Ag .C.J.F, while delivering the lead judgment of the court with Unsworth, and Taylor, FJJ.; concurring, reasoned and established that:
“For the purpose of determining whether the decision is final or interlocutory the proceedings on the reference, must, on this view, be regarded as distinct from the proceedings in the course of which the question arose”
As for the case of Gamioba v. Esezi II & 11 Ors (1961) ALL NLR 608 at 612; the learned Justices of the apex Court held that when questions arise for the purpose of exercising the power of reference’ they would adopt the reasoning and conclusion of the English court of Appeal in Weed v. Ward (1889) 40 Ch. D. 555; that a power given by the Judicature Act, 1873 by Section 56 thereof, to refer ” any question arising in any cause or matter” to an Official or Special Referee, applies only to questions which must necessarily be decided in the cause or matter and not to questions which it may prove unnecessary to decide”
Again, in Olawoyin v. C.O.P. (1961) All NLR 213 at 227 cited to buttress the submissions of the objectors, the Supreme Court adopted the privy council observations in citizens Insurance company of Canada v. Parsons (1881) 7 A C’ 96;where it was held in another referral case that:
“In performing this difficult duty, it will be wise course for those on whom it is thrown to decide each case which arises as best they can’ without entering more largely upon an interpretation than is necessary for the particular question in hand.” The Authorities considered above, with the greatest respect’ do not assist us in our quest to finding out whether in the course of the pending referral from the Federal High Court to this court as an appellate court’ we can grant an order either of interim or interlocutory injunction.
The other two cases cited with verve in support of their contentions are Labour Party v- INEC (2009) 1 – 2 S C (pt’ II) 44 at 67 – 68 (also reported in (2009) 2 SCN’J’ 156 at 172 paras. 5-15: on the limited jurisdiction of the Court of Appeal (nay discretion) in cases stated to it; and Togun v. Oputa (No.1) (2001) 6 NWLR (pt.740) 577 at 592; which establishes the principles that a question referred to the Court of Appeal cannot be properly described as a question arising out of proceedings in a Court of Appeal in its primary role of hearing appeals as arising from the court under section 295 (2) of the Constitution, and that where the Constitution or any law confers a power and prescribes how to exercise such power, it should be exercised accordingly. See also Ogualaji v. A.G Rivers State (1997) 6 NWLR (pt.508) 209 which was also cited to emphasise that there can only be a proper reference if the proceedings arose from a lower court which presupposes that the lower court is still dominis wills of the substantive suit but only surrendered that aspect necessary to enable the higher court determine the reference.
Accordingly, it was submitted that only the court below can make an order on the substantive suit and grant applications like interlocutory or interim injunctions and in the case where the court below discharged the interim order of preservation of the res, the only option open to the Plaintiffs/Applicants/Respondent is an appeal to this honourable Court as the Court cannot go out of the exercise of powers granted it under sections 240 and 241 (1)(f)(11) of the Constitution while siesed of a reference under section 295(2).
In Labour Party v. INEC (2009) 1 ’97 2 SC (pt.II) 44 at 67 ’97 68 (also reported in (2009) 2 SCNJ 156 at 172 paras. 5-15; Ogbuagu J.S.C. had held that: “I wish to state that section 295(2) of the Constitution of the Federal Republic of Nigeria 1999 connotes, a command that when any question is or questions are referred to the Court of Appeal that court, shall give its decision in respect of the said reference the court to which the question goes is limited to deciding upon the question referred to it. Thereafter it must send its decision to the court in which the question arose and that court is bound to dispose of the case out of which that decision arose thus it is the court making the reference that must decide on the substantiality of the question and not the Court of Appeal or the Supreme Court.:
I do not also see how helpful this case is to us in the determination of this issue of jurisdiction of the Court of Appeal to grant interim and interlocutory injunctions in referral cases. If anything, that decision deals with the substantive referral proceedings. The Learned Mrs. Offiah SAN has ably argued and I agree with her that the above cited dictum of Ogbuagu J.S.C is completely inapplicable to the facts and circumstances of this case and the differentiation between that case and the case at hand is well taken.
In the determination of the determine this application one way core issue of jurisdiction which will or the other in spite of the copious submissions of counsel, it is necessary to have recourse to the constitutional provisions, statutes and the rules of this Honourable Court which the Learned Senior counsel on both sides have cited and relied upon to buttress their respective positions for the grant or refusal of the application for setting aside the order of interim injunction earlier granted by this Court and/or grant /refuse the application for interlocutory injunction as prayed by the respective parties.
For the avoidance of doubt, Sections 6 (l) and 6(6)(a) and (b) of the Constitution of the Federal Republic of Nigeria 1999, provide thus:
“6(1) “The judicial powers of the Federation shall be vested in the courts to which this Section relates, being courts established for the Federation
(6).The judicial powers vested in accordance with the fore going provisions of this section-
(a) shall extend, notwithstanding anything to the contrary in this Constitution, lo all inherent powers and sanctions of a court of law:
(b) shall extend to all matters between persons, or government or authority and to any person in Nigeria and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person; ”
The original jurisdiction of the court is entrenched in Section 239 of the Constitution while its appellate jurisdiction is spelt out in Section 240 thereof. By Section 8 of the court of Appeal Act, the practice and procedure of the court shall be in accordance with the Act and subject to the Act shall be in accordance with the Rules. Section 15 of the court of Appeal Act 2004 on the other hand provides as follows:
“15. The Court of Appeal may from lime to lime, make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the court below to inquire into and certify its findings on any question which the Court of Appeal thinks fit lo determine before final judgment in the appeal’ and men make an interim order or grant any injunction which the court before is authorized to make or grant and may direct any necessary inquires or accounts to be made or taken, and’ generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the court of Appeal as court of first instance and may re-hear the case in whole or in parl or may remit it to the court below for the purpose of such re-hearing or may give such other directions as to the manner in which the court below shall deal with the case in accordance with the Powers of that court or in the case of an appeal from the court below, in that court’s appellate jurisdiction, order the case to the reheard by a court of competent jurisdiction.”
The general powers conferred on the Court in Section 15 above are supplemented by Order 4 Rules 1-11 of the Court of Appeal Rules, 2007. It is pertinent to note that all the powers stipulated and enumerated in the Rules above quoted are exercisable only in the Court’s appellate jurisdiction. In other words, to be able to exercise those powers, there must be an appeal properly so called before it. Of particular interest to our case are the provisions of order 4 Rule 4 which empower the Court to Exercise the powers notwithstanding that no notice of appeal or respondent’s notice has been given in respect of any particular part of the decision of the court below or by any party to the proceedings in that court as the court may make any order on such terms as it thinks for the just determination of the merits of the real question in controversy between the parties.
Also it is worthy of note that order 5 compliments and supplements the provisions of Section 295 (2) of the 1999 Constitution as regards stating a case or referral from the Lower court to it but, throughout the entire gamut of Rules in that order, there is no provision for the grant of injunctions either interim or interlocutory. The reason appears to have been buttressed by the submissions of the Learned senior counsel for to the 2nd Defendant/Respondent/objector and the authorities of Gombe v. P.W.(1995) 6 NWLR (pt.402) per Iguh, JSC; Esiri v. Idika & Ors. (1987) ANLR 529; Agu v. Odofin (1992)3 SCNJ 161 at 172 and Ezeonu v. Agheze (1991)5 NWLR (pt.187) 3; ably cited by them.
By Rule 6 thereof the court shall have power to grant injunctions or appointment of receiver or manager and make such other necessary Orders for the protection of property or person, again ” Pending the determination of on appeal to it even though no application for such an order was made before the court below” Under Rule 11 after an appeal has been entered but before final disposal the court shall be seised of the whole of the proceedings as between the parties thereto and except as may be otherwise provided in the Rules every application shall be made to the Court and not the Court below and if such an application is filed at all in the lower Court, it shall be solely for the purpose of transmission to the Court of Appeal. See Ezeokafor v. Ezeilo (1999) 65 C. 1 at 6 Att-General v. Simpson (1901) 2 Ch. 671, Ogunremi v. Dada (1962) 1 All N.L.R. 108; Kano Plastics Ltd v. Century Merchant Bank (1998) 3 NWLR (Pt.534) 567 and Ezomo v Att.-General Bendel State (1986) 4 NWLR (pt.36) 448.
Even by the provisions of Order 7 Rules 3 and 4 which deal with applications refused in the lower Court and those made at the first instance in the Court of Appeal whereby if such application is refused in the Lower Court a similar application can be remade to the Court of Appeal and where under the Rules of this Court an application can be made either to the Court below or this Court except it was first made in the Lower Court or there are special circumstances which made it impossible or impracticable to make the application in the Lower Court; such application can only be made where an appeal has been lodged in the Court of Appeal.
There have been serious contentions on the vesting of jurisdiction vel non in this Court to make interlocutory or interim orders of injunction pending the determination of the case stated or reference from the Federal High Court.
The emeritus Oputa, JSC, in African Newspapers of Nigeria Ltd. & Ors v. The Federal Republic of Nigeria (1985) 4. S.C. (pt 1) 76 at pp.122 and 123; had laid down the guidelines for the determination of jurisdiction in any given case before any court when he posited:
“The quarrel over the jurisdiction of courts is by no means new but these quarrels have left certain significant beacon lights to guide the court when dealing with jurisdiction or the lack of it:
I. Judges ought not to encroach or enlarge their jurisdiction because by so doing the courts will be usurping the functions of the legislature. Per Holt C. J. in Ashby v. White (1703) Lord Raym 938.
2. Nothing shall be intended to be out of the jurisdiction of the superior court, but that which specifically appears to be so; and on the contrary nothing shall be intended to be within the jurisdiction of an inferior court but that which is so expressly alleged;- Peacock v. Bell and Kendall (1667) 1 Sound 74
3. Although the courts have great powers yet these powers are not unlimited. They are bound by some lines of demarcation Abbott, C.J’ in the king v Justice of Devon (1819) 1 Chit Rep. 37. Courts are creatures of statutes and the jurisdiction of each court is therefore confined, limited and circumscribed by the statute creating it.
4. The court is not hungry after jurisdiction Sir William Scott The Two friends (1799), C. Rob Ad Rep. 280.
5. Judges have a duty to expound the jurisdiction of the court but it is not part of their duty to expand it. Kekewich J in re Montagu (1897) L.R.I.C.D. (1897), 693
6. A Court cannot give itself jurisdiction by misconstruing a statute Pollock, B. in Queen v. Country Court of Lincolnshire and Dixon (18887) L.J (N.S)57 Q.B.C. 137.”
The erudite judicial icon cannot but be more right in his enunciation of the principles guiding the determination of jurisdiction for as he has aptly and rightly posited, the question of jurisdiction nay inherent powers of a court have attracted considerable discuss in both judicial decisions and the academia.
Thus in National Bank (Nig.) Limited & Anor v. John Akinkunmi Shoyoye & Anor. (1977) 5 S.C 181 at pp.190-191, the Supreme Court adopted the definition of ‘jurisdiction’, as contained in Vol. 10 Halsbury’s Laws of England 4th Ed. Para. 715 page 323 as follows: “By jurisdiction is meant the authority which a Court has to decide matters that are litigated before it, or to take cognizance of matters of this authority are imposed by the statute, charter or commission under which the court is similar means lf no restriction is imposed, the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular court has cognizance or as to area over which the jurisdiction extends or it may partake of both these characteristics.”
As for the distinction between jurisdiction and inherent powers of a Court, the Learned Senior Counsel for the 2nd Respondent/Objector/Applicant have rightly cited Gombe v. P.W. Nig. Ltd (1995) 6 NWLR (Pt.402) (supra) and are on very solid ground when he relied on the dictum of another emeritus judicial titan, Iguh, JSC; who put it so succinctly that:
“The exercise of jurisdiction on a cause or matter must be distinguished from the exercise of an inherent power by a Court of law. The inherent power of a Court is entirely supplementary to and dependent on the statutory jurisdiction of the Court in the cause. A court may have or exercise inherent jurisdiction in respect of a cause or matter within its jurisdiction. It has however, no inherent power or jurisdiction in a cause or matter not within its jurisdiction There lies the distinction between the two terminologies. It has to be carefully noted too that an inherent power or inherent jurisdiction is not and has never been distinct or separate jurisdiction. No inherent power can add to the jurisdiction of any Court of record where no jurisdiction to entertain a cause had been vested in the Constitution or statute law. Inherent power is only exercised to enhance statutory jurisdiction in a cause or matter within the jurisdiction of the Court.
To round up on this vexed issue of jurisdiction’ it is necessary to recall the statement of the law as expressed by no less a legal luminary than the Hon. Justice G.A. Oguntade, JSC (one of the strongest voices of the apex court) who recently retired, in his essay titled “Jurisdiction of the Court of Appeal to Entertain Interlocutory Proceedings” recorded at pages 677 and 683 of the text “JURISPRUDENCE OF JURISDICTION” edited by Prof. Epiphany Azinge, Oliz Publisher, 1st Ed’ 2005; where the Learned Law Lord opined that
“The Court of Appeal has no general supervisory powers over the High Court as the jurisdiction of the Court of Appeal is mainly statutory or constitutional in other therefore to activate the appellate jurisdiction of the Court of Appeal in any matter whether final or interlocutory, it is necessary that Notice of Appeal in respect of such matters should be filed before the Court of Appeal. It only when an appeal has been properly filed that the doors of the Court of Appeal are open to enable it consider matters arising from the appeal filed ” Page 677
At page 683, the Learned author summarised the conditions under which the jurisdiction of the Court of Appeal in interlocutory proceedings can be invoked as follows:
1. Before an appeal is entered only as permitted by Section 25(4) of the Court of Appeal Act.
2. When an Appeal has been entered on interlocutory matters arising out of appeals filed pursuant to sections 239-241 of the 1999 Constitution of Nigeria.
3. When an appeal has been lodged against its decisions but before the appeal is entered at the Supreme Court.
4. When in the circumstances of a particular case, it is necessary to invoke its inherent jurisdiction to prevent a failure of justice.
Under conditions 2 and 4 above where the court below set aside the interim order made earlier before referring the issue of jurisdiction to this court, the Applicants/Respondents ought to have filed an appeal in order to invoke the jurisdiction of this court to exercise its inherent jurisdiction to prevent the failure of justice and the dissipation of the res which is the tenure of office of the Applicants which is exhaustible within four years and of which more particularly where a serious issue had arisen at the trial court warranting the referral to this court.
I agree therefore with the Learned Prof. cum Senior Advocates that since the court below was dominis litis of a substantive case, part of which only was referred to us for our opinion; this Court’s jurisdiction is circumscribed by the Constitution, Court of Appeal Act and the Rules of the Honourable Court and is therefore proscribed from entertaining interlocutory proceedings (particularly, ex parte motion), where its appellate jurisdiction was/is not activated. All the arguments of the Learned Chief Mrs Offiah (SAN) and the authorities cited are anchored on decisions emanating from the appellate jurisdiction of this Court. The preliminary objection of the Learned Senior Advocates representing the 2nd Appellant is meritorious more so as it has been discovered that the application was filed and heard before the transmission of the order of referral from the lower court in which case this court, assuming it could make the interim Order, was not properly siesed of the referral before we were cajoled into granting the order of interim injunction. See Agu v. Odofin (supra), Madukolu v. Nkemdilim (supra) and the host of other cases cited by Learned Senior Counsel for the 2nd Defendant/Objector.
Accordingly, the preliminary objection shall succeed and is hereby sustained. Our interim order of injunction made on the 11th day of October, 2010 is hereby discharged and we so order. In the same vein having sustained the preliminary objection of the 2nd Defendant/Respondent the motion for interlocutory injunction filed on the 10th day of November, 2010, is hereby struck out for want of jurisdiction. I make no order as to costs.
HUSSEIN MUKHTAR, J.C.A.: I have had the privilege of reading in draft the lead ruling just rendered by my learned brother Agube, JCA and fully agree that the preliminary objection is meritorious and ought to succeed per force.
On 10th November, 2010 the lower court stated a case, pursuant to section 295 of the constitution of the Federal Republic of Nigeria 1999 for the opinion of the Court as to whether the case before it could proceed in view of the pendency of an appeal in a similar suit before Kafarati, J, who found that the lower court has jurisdiction in the matter.
An exercise of jurisdiction by the Court of Appeal, and any court for that matter, is not at large. While the court has an exclusive jurisdiction to hear and determine appeals from the Federal High court (the lower court) pursuant to section 240 of the constitution, such jurisdiction is only exercisable in respect of a matter properly brought before it by due process of law.
There is a world of difference between an appeal brought under section 240 on the one hand and statement of a case under section 295 of the Constitution on the other. While the Court may entertain interlocutory motions such as the instant one in the former case, in the later situation the case is still alive at the lower court, which remains the right and only forum for an application for interlocutory injunction. The only business before this court is to deal with the question or questions under reference and no more.
The instant motion, which seeks for an order of interlocutory injunction brought by the learned senior counsel Chief (Mrs.) Offiah is predicated upon statement of a case by the lower court pursuant to section 295 of the Constitution by which the lower court simply reserved, for the consideration of this court, a question which was formulated by the learned trial judge in the course of the proceedings before him. It is glaring, with due respect, that the instant motion for injunction before this court is quite misplaced.
The preliminary objection dated 11th November, 2010 was well taken. For the forgoing and the more detailed reasons in the lead ruling, the preliminary objection succeeds and is accordingly sustained. This finding therefore reduces the two other pending motions, for interlocutory injunction and for discharging the interim order of injunction filed on the 10th and 18th November, 2010 respectively, to a complete insignificance. Those two motions are accordingly struck out.
I subscribe to the consequential orders made in the lead ruling inclusive of the one on costs.
MOJEED ADEKUNLE OWOADE, J.C.A.: I had a preview of the Ruling just delivered by my Learned brother Ignatius Igwe Agube J.C.A. I agree with the reasoning and conclusion. I also abide with the consequential orders. In relation to the central point in the matter I wholly agree with the view that when this court, that is the court of Appeal is asked by a lower court to determine any question as to the interpretation of the constitution or reserves any question of law for consideration as case stated in accordance with the provision of order 5 of the court of Appeal Rules 2007 and an appeal has not in consequence of such power be entered, the court cannot make any interim and/or interlocutory orders in relation to the case before the lower court.
The provision of Order 5 of the Court of Appeal Rules 2007 relates to special reference as to constitution and reserved points of law from a lower court.
The 8th edition of the Black’s Law Dictionary at page 1306 says of ‘special reference thus
“2. An order sending the case to a master or reserved/for information or decision”:- (underlining emphasis supplied)
The main reason why the Court of Appeal could not grant interim and/or interlocutory orders in the pending of a case stated is that a case stated is not an appeal and the procedures for stating a case for reference on question of law are totally diffurent from the procedures for entering an appeal.
The provision of Order 4 Rules 10 and 11 of the Court of Appeal Rules 2007 are instructive on when an appeal is entered.
“(10) An appeal shall be deemed to have been entered in the court when the record of proceedings in the court below has been received in the Registry of the court.
(11) After an appeal has been entered and until it has been finally disposed of, the court shall be seized of the proceedings as between the parties thereto, except as may be otherwise provided in these Rules, every application therein shall be made to the court and not to the court below but any application may be filed in the court below for transmission to the court”
.
It would be observed from the above provisions that the draftsman of the Court of Appeal Rules 2007 did not find it necessary to put the “dominion clause” expressed in order 4 Rule 4 in any of the paragraphs of Order 5 which deals with case stated.
It follows logically that when an appeal has not been entered and there is merely a reference to the court of Appeal by means of case stated the court of Appeal does not have the control, the dominion or the jurisdiction to be seized of the whole of proceedings as between the parties thereto.
Put in another way, the jurisdiction of the Court of Appeal under the provision of Section 295 (2) of the 1999 constitution on any question as to the interpretation or application of the constitution is limited to the court given a decision upon the question and the court below shall thereby be enjoined to dispose of the res in accordance with the decision of the court of Appeal.
In the instance case, the provision of Section 295 of the 1999 constitution itself lends credence to the submission of Learned Senior counsel for the 2nd Defendant/Respondent/Applicant that the court to which reference is made does not have dominion on the subject matter. Section 295 (2) of the constitution reads as follows:
“(2) Where any question as to the interpretation or application of the constitution arises in any proceedings in the Federal High Court or a High Court and the court is of opinion that the, question involves a substantial question of law, the court may and shall its any party to the proceedings so requires refer the question to the Court of Appeal and where any question is referred in pursuant of this Sub Section, the Court shall give its decision upon the question and the court in which the question arise shall dispose of the case in accordance with that decision” (underlining emphasis supplied).
In the case of Labour party vs. INEC (2009) 1-2 and S.C (pt.11) 44 at 67 -68 the Supreme court made it clear that there are no inherent powers of a court that can confer jurisdiction to act outside the rendering of a decision on the question(s) referred under the provision of section 295 (2) of the 1999 Constitution. The court held
“Before concluding this judgment, I wish to state that section 295 of the constitution of the Federal Republic of Nigeria 1999 is mandatory or connotes a command that when any question is or questions are referred to the Court of Appeal, that court shall give its decision upon the question or questions. It has no discretion in respect of the said reference.- “.
See also, Ona & anor v. Alhaji Atanda (2005) 5 NWLR (Pt. 656) 244 at 275-276 Brigadier-General Togun (Rtd) V Hon. Justice Oputa (rtd) & 2 ors (No. 1) (2001) 16 NWLR (Pt. 740) 577 at 592 FRN v. Lord Chief Ifegwu (2003) 5 S.C 252 (2003) 15 NWLR (Pt. 845) 113 at 191 (2003) 5 SCNJ 217.
In the instant case, the argument by the Learned Senior Counsel for the Plaintiffs/Applicants, Chief (Mrs) A.J. Offiah (SAN) that this court has inherent powers to grant interim and/or interlocutory injunctions as a matter of duty to protect its own res is with respect totally inapplicable to the facts and circumstances of this case.
In simple language, but still within the context and spirit of the provision of Section 295 of the 1999 Constitution, the disposal of the res in the instant case lies with the Federal High court which made the reference and not the Court of Appeal which is only obliged to decide the point of reference.
Also, the attempt by the Learned Senior Counsel for the Plaintiffs/Applicants to invoke the provision of Section 15 of the court of Appeal Act to justify the plaintiffs applications cannot be sustained. The reason for this is that the invocation of the Section 15 jurisdiction of the court of Appeal is dependent on an appeal before the court. The provision of section 15 of the court of Appeal is ineffective perhaps irrelevant when there is no appeal before the court.
The key to the invocation of the provision of Section 15 of the Court of Appeal Act could be found in the first three lines of the said provision that is
“the court of appeal may from time to time, make any order necessary for determining the real question in controversy in the appeal”
It follows from the above that the jurisdiction of the Court of Appeal to grant interim and/or interlocutory orders is dependent on the entering of an appeal before it and not on a mere question of reference by case stated as in the instant case.
The jurisdiction of the Court of Appeal whether on substantive or interlocutory matters can only be activated by filing a Notice of Appeal.
For these reasons and the fuller reasons contained in the lead Ruling of my Learned brother Agube JCA, I also uphold the preliminary objection of the Defendants/Respondents/Applicants. I abide with the Order of the discharge of the previous ex-parte order granted by this Honourable court for reasons of want of jurisdiction and strike out the plaintiffs/Applicants Motion on Notice for interlocutory injunction.
Appearances
Chief/Mrs A. J. Offiah (SAN) with Tochukwu Maduka Esq. and Emeka Igwesi Esq. For Appellant
AND
E. E. Ogbodu Esq.
Prof. Ilochi Okafor (SAN) with Mike Ajogwu (SAN), A. U. Agbo Esq., Ben C. E. Ezeugwu Esq., B. N. Nnebe Esq., Chika Eze Esq., C. C. Ajogwu (Miss) and E. N. Idu (Miss) For Respondent
