PATRICK OGUOWERE & ORS v. JOSEPH UDEH & ORS (2016)

PATRICK OGUOWERE & ORS v. JOSEPH UDEH & ORS

(2016)LCN/8434(CA)

In The Court of Appeal of Nigeria

On Thursday, the 24th day of March, 2016

CA/E/230/2010

RATIO

JUDGMENT: HOW TO DETERMINE IF A JUDGMENT IS FINAL
The contention that the decision in Western Steel Works Ltd v. Iron & Steel Workers Union & Anor (supra) is not applicable to the instant case is not correct. Learned Counsel for the appellants correctly relied on the restatement of the Supreme Court in that case thusly-
“If a declaration that a Court has no jurisdiction brings an action before it to an end, the decision, does, in my view, seem to partake of the nature of a final decision.. It finally concludes the rights of the parties to approach that Court for a remedy. Similarly, if a Court gives a declaration that it has jurisdiction, it concludes the rights of the parties to approach, that Court for a remedy. According to Oputa JSC in his contribution It is my view that a judgment that determines this issue of law, this issue of jurisdiction, is not only a final judgment but also a judgment on the merit on the issue of law submitted to it for determination. A judgment which determines on an issue of law, say jurisdiction, (as in this case) which party is right (the party who claims that the Court has no jurisdiction or the party who claims that it has) is in my view a judgment on the merits of that issue and also a final judgment.
The character that identifies a decision as final is the lack of power of the Court that gave that decision to redecide or re-open and re-consider the issue already settled by its earlier decision. In Fadiora & Anor v. Gbadebo & Anor (1978) LPELR-1224 (SC), the Supreme Court held that a judicial decision is deemed to be final, when it leaves nothing to be judicially determined or ascertained thereafter, in order to render it effective and capable of execution, and is absolute, complete and certain and when it is not lawfully subject to subsequent decision, review or modification by the tribunal which pronounced it. PER EMMANUEL AKOMAYE AGIM, J.C.A.
JURISDICTION: WHETHER A COURT HAS JURISDICTION TO ADJUDICATE ON JUDGMENT OF THE SAME COURT OR OTHER COURT OF EQUAL JURISDICTION
It is trite law that a Court lacks the jurisdiction to adjudicate on the issues decided by the previous judgment of the same Court or other Court of equal jurisdiction except where the judgment was obtained by fraud, where the judgment was given without jurisdiction and where the judgment is a nullity. See Okoye & Ors v. NCFC Ltd & Ors (1991) 7 SC (Pt 111)33. It is noteworthy that the correction of clerical mistakes or accidental slips or omissions is different from the rehearing or adjudication of issues decided in the previous judgment of the Court. While it can correct the said clerical errors and accidental slips or omissions in its judgment, it cannot rehear or reconsider the issues already decided in its judgment except in the situations stated above. See Ede & Anor v. Mba & Ors (2011) LPELR-8234 (SC). PER EMMANUEL AKOMAYE AGIM, J.C.A.
ORDER: SIGNIFICANCE OF AN ORDER OF STRIKING OUT
The significance of an order of striking out is that the merit of the case in terms of the rights or obligations sought to be enforced has not been determined and that the case is terminated on other grounds. This is what distinguishes an order of striking out from one of dismissal. An order of dismissal is usually made upon a determination of the merits of the dispute in the case. So the distinction between a striking out and a dismissal does not lie in the idea that one allows the case to be relitigated while the other permanently bars further litigation over the subject matter. This is because it is not in all situations that a striking out enables re-litigation of a case or a dismissal absolutely bars re-litigation of the case. PER EMMANUEL AKOMAYE AGIM, J.C.A.
ORDER: SITUATIONS WHERE A CASE CAN NOT BE RE-OPENED WHEN IT WAS STRUCK OUT
There are situations where a case can no longer be re-opened even though it was struck out. An example of such a case is where a case is struck out because the subject matter of the case is not within the jurisdiction of the Court. Another example is where a case is struck out because the proceedings pending before a Court can no longer go on for the reason that it is caught up by a sunset legislation. This occurs frequently in election cases where statute prescribe time limit within which the election petition must be concluded. Once the prescribed time expires, if the petition is not yet concluded, the proceedings abate and can be struck out. There are situations where a matter though dismissed can be restored on the cause list or re-litigated. One example is where the rules of Court permit the relisting of such a dismissed case. Another examples is where the matter at the trial stage is dismissed for want of prosecution. The Supreme Court in ABIEGBE V. UGBODUME (1973) LPELR -36 HELD 1 OR (1973) 1 SC. 103 held, with particular respect to such a case, that to dismiss an action for want of prosecution does not give judgment in favour of the defendants nor does it prohibit the plaintiffs from filing a fresh action.”
Another example is dismissal for non-compliance with some procedural requirements. A typical example of this is non-compliance with conditions of appeal or failure to compile and transmits records within the prescribed time. This often results in the dismissal of the Appeal without prejudice to the right of the appellant to bring back the appeal. The Supreme Court held in OBASI BROTHERS MERCHANT CO-LTD. VS. MERCHANT BANK OF AFRICA SECURITIES LTD. (2005) 2 SCNJ 272 at 279 that It is not all cases where a matter is dismissed that it completely terminates the case. Indeed, where a case is said to have been dismissed in the High Court but the circumstances show that such dismissal could not possibly connote or denote the determination as to put finality to the case, the Court views such dismissal as mere striking out. In my view, the primary determinant of whether a dismissed or struck out matter can be re-opened is the basis or reason for the striking out or dismissal. PER EMMANUEL AKOMAYE AGIM, J.C.A.

JUSTICES

HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria

TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria

EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria

Between

1. PATRICK OGUOWERE
2. JUDE AKABUOGU
3. MOSES OSSAI
4. INNOCENT EMENARI
5. ONYEKA AZUBIKE Appellant(s)

AND

1. JOSEPH UDEH
2. STEPHEN NNAEMEZIE
(For themselves and on behalf of all the executive members of Electronics Dealers Association, Onitsha)
3. INCORPORATED TRUSTEES OF ELECTRONICS DEALERS ASSOCIATION, IWEKA-ANAMBRA Respondent(s)

EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the Leading Judgment): On 18-5-2009, the appellants as plaintiffs, filed an originating summons commencing suit No. O/170/2009 in the High Court of Anambra State in the Onitsha Judicial Division at Onitsha against the 1st and 2nd respondents herein as defendants, claiming for the following reliefs:
(a) ?A declaration that the respondents? tenure of office expired in June, 2006
(b) A declaration that the purported extension of the respondents? tenure of office by the General Meeting of Electronics Dealers Association on 30th May, 2006 is ultra vires the Constitution of electronics Dealers Association, Onitsha and therefore null and void.
(c) A declaration that the respondents continued stay in office upon the expiration of their tenure after June 2006 without being re-elected in accordance with the Constitution of the Electronics Dealers Association Onitsha is null and void.
(d) A declaration that the elective posts stipulated in the Constitution of Electronics Dealers Association became vacant upon expiration of the respondents? tenure in June, 2006.
(e) An order of

injunction restraining the respondents from parading or representing themselves, either individually or collectively as executive member or members of Electronics Dealers Association.?

The originating summons raised the following questions for determination-
(1) ?Whether the respondents? tenure of office expired in June 2006 in accordance with the Constitution of Electronics Dealers? Association, Onitsha?
(2) Whether the purported extension of the respondents? tenure of office on 30th May, 2006 by the General Meeting of the Association was in accordance with the Electronics Dealers? Association Onitsha?s Constitution?
(3) Whether the respondents ought to remain in office after their tenure had expired without being reelected or the Constitution amended to warrant any extension of their tenure.
(4) Whether the elective posts of the Electronics Dealers Association became vacant after June, 2006.?

By a motion on no notice filed on 20-4-2010, the 3rd respondent herein applied to be joined as a defendant to the said suit No.O/170/2009. The application was granted by the trial Court on

21-4-2010. It ordered the 3rd respondent herein to be joined as 3rd respondent in suit No. O/170/2009.

?The facts constituting the cause for the action in the said suit No O/170/2009 are stated in paragraphs 2, 3, 4, 9, 10, 11, 12, 13 and 14 of the affidavit in support of the originating summons as follows-
2. ?The respondents and all those on behalf of whom they are sued in this action were elected as executive members of the EDAO on 14th February, 2002, and going by the EDAO Constitution they ought to leave office in June, 2006 when a fresh election will be conducted.
3. By provision of Article 11 (a) and (b) of the EDA Constitution any elected executive has a specified term of four years at the expiration of which a desiring office holder may seek to be re-elected. A copy of the said Constitution is herewith annexed as Exhibit A.
4. the tenure of office of the respondents expired on 14th February, 2006. They refused or neglected or ignored to organize fresh elections and elect new officers for the purposes of vacating office and handing over power to another elected executive. Instead, in a meeting of 30th June, 2006 called by them

and in which they presided, some members of EDAO purported to extend the tenure of office of the respondents to last up to and including 30th June, 2007.
9. The respondents have in the intervening period between the date their tenure expired and till date been conducting themselves in such a manner that is completely inconsistent with the standard expected of a democratically elected executive member of any civilized association.
10. All of us are members of EDAO. I attach as exhibits our various membership cards as Exhibit E. I attach the various shop receipts showing that we own shops at the New Site as Exhibit F.
11. That we have aspirations to contest for the elective posts of EDAO since 2006. However, the continued stay in office by the respondents is an impediment to our various aspirations. For example I intend to vie for the post of treasurer, while the 2nd applicant aspires to the office of Vice President. The 3rd , and 5th applicants aspire to vie for the office of Assistant-Secretary-General, Provost 1 and financial Secretary.
12. That since 2006, we have been making efforts to see that we keep our aspirations alive, yet the

respondents are not helping matters by their continued stay in office.
13. That the decision taken by the EDAO or purportedly taken by EDAO was not done in accordance with the provisions of the constitution of EDAO.
14. That we have been opposing the activities of the respondents as executives of EDAO.?

The 3rd respondent on 20-5-2010 filed a counter affidavit of 35 paragraphs in opposition to the originating summons. The said counter affidavit states in paragraphs 1, 4, 5, 6, 11, 12, 13, 14, 15, 16, 17, 18, 19, 29, 21, 22, 23 to 30, 32 and 33 as follows-
1. I am a trustee of the 3rd respondent on record. I make this affidavit for myself and on behalf of other trustees of the Incorporated Trustees of the Electronics Dealers Association Iweka Anambra, also known as Electronics Dealers Association Onitsha (hereinafter called ?the Association?]
4. The Association was incorporated in the year 2003 with the Corporate Affairs Commission, Abuja, under Part C of the Companies and Allied Matters Act. The Certificate of Registration of the Association which is already in the Court?s file is exhibited as A1. The

Certified True copy of the Constitution of the incorporated association is hereby exhibited as and marked Exhibit A2.
5. Prior to the incorporated of the Association, the association was then known
6. The resolution to register the association was taken at a general meeting s time we were still trading at Iweka Road, Onitsha during the tenure of our immediate predecessors, Mr Dominic Mbah led executive. The said Dominic Mbah led executive commenced the registration of the association which we continued when we came on board as executive members of the association.
11. Shortly before the expiration of the tenure of our executive, we duly called a general meeting of the association on 30th May, 2006 to discuss the modalities for the conduct of general elections into various offices of the Executive committee of the association.
12. In the said meeting which all the plaintiffs attended, the members unanimously resolved that the tenure of office of the executive be extended for one year to enable it, among other things, complete the erection of the Association?s monumental shopping complex along Onitsha/Asaba expressway, Ogbaru. The

plaintiffs were among those that were present at the meeting and passed the said resolution.
13. The executive members reluctantly in the sprit of great sacrifice for the association accepted the mandate of the general house of the association.
14. Upon the completion of the association?s shopping complex and the subsequent allocation of shops by balloting, the 4th and 5th plaintiffs and others who were not favoured by mother-luck with choice shops abandoned their shops at the Complex and now trade at Ochanja extension market and Iweka Road respectively. They then joined the opposition group, the United peoples Forum to cause one havoc after the other in the association.
15. After the expiration of the said period of one year, we set to organize election into the executive offices of the association in accordance with the association?s constitution. We first issued a notice of meeting to hold on 13th June, 2007 for the purpose of fixing a date for the election.
16. It was the plaintiffs and their cohorts in the United People Forum who on getting the secular immediately petitioned the then Governor of Anambra State, Mr Andy Ubah

to stop the election. Consequently, on the same day i.e. 13th June, 2007 the secular was circulated in a public service announcement over the Network News of the Nigerian Television Authority (NTA) credited to the then Secretary to the Anambra State Government conducting any election of the Association until otherwise instructed by the Government.
17. The plaintiffs and the other members of the United People’s Forum have consistently been clamoring for care-taker committee instead of elections in accordance with the association?s constitutions.
18. The next morning after the television announcement, a contingen of the Nigerian Police from Okpoko Police Station, Area Command Onitsha, and the police Headquarters, Awka under the command of the Assistant Commissioner of police (AC) operations, invaded the association?s shopping complex to effect the ? stop election? order.
19. We immediately drove to the office of the said SSG to meet with him with respect to the ?stop election ?order. We were discussing with him when the Supreme Court Judgment that proclaimed the constitutional tenure of His Excellency, Mr Peter

Obi as Governor of Anambra State was delivered, aired over the electronic media and the discussion came to an abrupt end as the SSG scampered out of his office for safety.
20. Determined to still conduct the elections in accordance with the association?s Constitution, we as soon as Governor Peter Obi settled down, on the 19th June, 2007 wrote His Excellency requesting him to rescind the said order/directive of Mr. Andy Ubah?s Government to enable the association proceed with the conduct of the election. The said letter already before the Court is exhibited by reference.
21. Unfortunately till date we did not receive a reply to our said letter. Rather, the Special Adviser to the Governor on Parks and Markets Chiefs Nwobu Alor invited the executive members and informed us, and we verily believed him, that the Anambra State Government was on the pressures of the opposition group, United Peoples Forum (UPF] planning to set up care-taker Committee to run the affairs of the association. The Plaintiffs are strong members of the UPF.
22. When some members of the association got to know of the said intentions of the Government they

instituted a legal action on the 27th day of June, 2007 against the association, the named executive members, Chief Nwobu Alor (special Adviser on Parks and Markets) and the named members of UPE in suit No. 0/116M/2007, inter alia demanding for an election as against the caretaker committee. The 4th applicant was the 11th respondent at the said suit.
23. We did not oppose the applicant?s application in the said suit no. 0/116m/2007 for an election. It was the 4th applicant herein as the11th respondent, together with other members of his group, UPF that opposed the said application preferring caretaker committee instead.
24. At the conclusion of the hotly contested suit in which the Hon. Attorney General appeared for chiefs Nwobu Alor, judgment was delivered on the 26th November, 2007 in favour of the plaintiffs on the said suit granting them all the reliefs they sought, including the right to change the elected officers of the Association in accordance with the association?s constitution. The said judgment of the honourable Court now before this Court is exhibited by reference.
25. In total compliance to the judgment of the

High Court of 26th November 2007, we scheduled the election to hold on 14th December, 2007. Many professional bodies and security agencies were invited to monitor and observe the election scheduled for 14th December, 2007.
26. Again the plaintiffs herein and their group with Chiefs Nwobualor representing the government aggrieved by the Court judgment which was not in tandem with their care-taker committee bid quickly rushed to the police to call-off the scheduled election on the flimsy excuse that they envisaged crisis and riots during the planned election.
27. On the strength of the request by the Government based on the plaintiffs and their group?s pressure, the then Anambra State Commissioner of police and the Deputy police Commissioner, Zonal Headquarters, Umuahia both invited us the executive committee to a meeting on the 13th December, 2007, the eve of the election and ordered the cancellation of the already scheduled and slated election.
28. The plaintiffs are not interested in democratic transition as envisaged by the association?s constitution and as ordered by the Honourable Justice V.N. Umeh. They are only interested in

the government setting up care-taker committee for their self aggrandizement. They got the Anambra State Government to ignore our further letter to the Government on 12th March, 2008 especially as it affects the conduct of the election. The said letter before the Court is exhibited by reference.
29. The plaintiffs? UPF had earlier through some of their members instituted suit No. O/220/2008 wherein they claimed against the respondents the same reliefs in this suit. The said suit is now on appeal. The notice and ground of appeal in the suit now in the Court?s file is exhibited reference.
30. The plaintiffs are largely responsible for our continued stay in office by their opposition to a conduct of free and fair election to the office of the association as enshrined in the association?s constitution, preferring however a caretaker committee. The association?s constitution has no room for caretaker committee of any sort.
32. The plaintiff are aware of the incorporation of the Association yet chose to sue the 1st and 2nd respondents for themselves and on behalf of a legally non-existent association. Annexed and marked Exhibit

B is the plaintiff’s affidavit in support of their originating summons in suit No. O/220/2008 Innocent Emenari & Ors v. Joseph Udeh & Anor now on appeal, where the plaintiff at paragraph 10 thereof acknowledged the 1st and 2nd respondents as trustees of the 3rd respondent association.
33. Our counsel, A.C Anaenugwu, Esquire informs me in his office at No. 62 New Market Road, Onitsha on 5th April, 2010 at about 4.30pm as follows and I verily believe him:
(i) That the plaintiffs have no locus standi in law to bring this suit.
(ii) That the honourable Court lacks the requisite jurisdiction to hear and determine this suit.
(iii) That the Honourable Court cannot properly proceed with the hearing of this suit when there is a pending appeal in the said suit O/220/2008 Innocent Emenari & Ors v. Joseph Udeh & Anor involving the parties in this suit.
(iv) that once an unincorporated association becomes incorporated, the former ceases to legally exist and all assets and liabilities automatically become those of the incorporated association.?

?The Judgment in Suit No. O/MISC.116/2007 referred to in paragraphs 24 to 26 of the

above counter affidavit is at pages 285 to 301 of the record of this appeal. The reliefs sought for in the Suit are reproduced in the judgment as follows-
(a) ?A declaration that the applicants as bona fide financial members of the Incorporated Trustees of the Electronic Dealers Association Iweka Anambra Onitsha are entitled under the 1999 Constitution of the Federal Republic of Nigeria to assemble freely and associate with other persons within the Elecronic Dealers Association without fear of intimidation and harassment by the Respondents in the running and management of the 1st respondent to which they voluntarily belong.
(b) A declaration that the resolve or threat of the 9th respondent in connivance and in conspiracy with the 2nd to 16th respondents to constitute Caretaker Committee to run the affairs of the 1st respondent is illegal, unlawful, unconstitutional and an interference or a violation of the Applicants right to freedom of Association and peaceful Assembly as enshrined in Section 40 of the Constitution of the Federal Republic of Nigeria 1999.
(c) A declaration that the applicants as bona fide members of the Electronic

Dealers Association Onitsha are entitled under the law to form or belong to any trade union or Association for the protection of their interest.
(d) A declaration that the Applicants as bona fide members of Electronics Traders Association Onitsha are entitled under the law to vote or be voted for with respect to any executive or post in Electronics Dealers Association Onitsha and are not under any disability howsoever.
(e) A declaration that a Caretaker Committee of any sort with respect to the activities or affairs of the 1st respondent is illegal, unlawful and unknown to the 1st respondent?s Constitution.
(f) A declaration that the 9th Respondent has no right to dissolve the Executive committee of the Electronics Dealers Association Onitsha and constitute a Caretaker Committee.
(g) A declaration that the only process of changing the elected officers of the 1st respondent is by a free and fair election as enshrined in the Article 10 of the Association?s Constitution.
(h) A declaration that the respondents resolve to foist Caretaker Committee on the 1st respondent?s Association to which the applicants are bona fide

financial members are aimed at dispossessing the applicants of their business stalls situate at the 1st respondents Electronics International Shopping Complex Ogbaru, opposite Premier Breweries, Enugu-Onitsha Expressway, Onitsha which they contributed financially towards the erection thereof.
(i) A declaration that the applicants as citizens of Nigeria are entitled at law to acquire and own immovable property anywhere in Nigeria.
(j) A declaration that the threat to arrest and detain the applicants over false, malicious and spurious complaint by the respondents over the applicants stance on the right to call for election and participate in the election of the Electronics Dealers Association Onitsha instead of a Care-taker Committee is unlawful, unconstitutional, intimidatory, unjustifiable under any known law and a gross violation of the applicants? fundamental rights to peaceful assembly and association, freedom of movement, personal liberty as provided in Sections 40, 41 and 35 of the Constitution of Federal Republic of Nigeria.
(k) An order or injunction restraining the respondents particularly the 9th respondent acting for and on

behalf of the Anambra State Government, their servants, agents and privies from constituting Caretaker Committee to run the affairs of the applicants? Incorporated Trustees of the Electronic Dealers Association Iweka Anambra or dealing in anyway whatsoever with the said 1st respondent other than as provided in the Association?s Constitution with respect to the conduct of elections to the Association?s Executive Committee.
(l) An order of injunction restraining the respondents, their servants, agents and privies from arresting detaining interfering with or violating in any manner howsoever the applicants fundamental rights to personal liberty, freedom of movement, right to peaceful assembly and association, right to freedom from discrimination and right to acquire and own immovable property anywhere in Nigeria.
(m) An order of injunction restraining the respondents in anyway whatsoever from revoking the applicants stalls in the Electronics International shopping Complex Onitsha/Enugu Expressway Ogbaru opposite Premier Breweries Onitsha or acting in anyway whatsoever detrimental to the applicants? interest in the said

properties.?

The trial Court concluded the said judgment holding thusly- ?From the foregoing, it is my respectfully view that the Applicants are entitled to all the reliefs sought. They have not asked for monetary relief or compensation save for declaratory reliefs, which are all hereby granted. The respondents should give democracy a chance and since elections have been due, they should give room for change of bation. Other should be allowed or afforded their constitutional right to vote and be voted for and to own immovable property any where in Nigeria and not to be discriminated against. The applicants are therefore entitled to all the reliefs as claimed, I make no order as to costs.?

The 3rd respondent herein was named as 1st respondent in the said Suit. The 1st and 2nd respondents herein were inter alia named therein as 2nd and 3rd respondents respectively. The applicants in that suit stated that they are bona fide members of Electronics Traders Association, Onitsha and members of Incorporated Trustees of the Electronic Dealers Association, Iweka.

?The Judgment in Suit No O/220/2008 delivered on 11-5-2009 is reproduced

at pages 160-170 of the record of this appeal. The Suit was instituted by the 4th and 5th appellants herein and one Ilo Nwoye against the same respondents herein. The trial Court stated the facts constituting the crux of the Suit thusly-
By Article 11 (a) and (b) of the Constitution of Electronics Dealers Association, Onitsha (Exhibit A), electronics are held every four years. Incumbent officers serving their first term may vic for re-election. The respondents were elected into office in 2002 and should have vacated their offices in June 2006. They did not leave and did not apply for re-election. Rather on 30/5/2006, some members in a general meeting called by the respondents extended the tenure of office of the respondents to 30/6/2007. The respondents have remained in office since then. The applicants claim that the respondents had since then been acting mostarbitrarily to the detriment of the applicants and other members of he Association, hence the institution of this suit. The 2nd and 3rd respondents were served the processes on 3/9/2008. The Incorporated Trustees of the Electronics Dealers Association Iweka, Anambra applied and was joined as 3rd

respondent in the suit.?

The trial Court restated the contentions of both sides thusly- ?The contention of the respondents is that their association was formerly known as Electronics Dealers Association Onitsha, an unincorporated body with Exhibit A annexed in paragraph 3 of the applicant?s affidavit in support of the originating summons as its Constitution. Later, in the year 2003 the Association became incorporated and registered under Part C of the companies and Allied Matters Act as Electronics Dealers Association Iweka Anambra with Exhibits EDA 5 annexed in paragraph 3 of the respondent?s further counter affidavit dated and filed on 3/4/2009 as its Constitution. The respondents consequently contend as follows:-
1. That the applicants are wrong to sue 1st and 2nd Respondents for themselves and on behalf of all the Executive members of Electronics Dealers Association, Onitsha, a non-existing entity in view of its incorporation.
2. That the 3rd Respondent being an incorporated body under the Company and Allied Matters Act, by Section 251 (1) (e) of the 1999 Constitution only the Federal High Court is vested with the

jurisdiction to the exclusion of any other Court in civil causes and matters touching on the way and manner the association is run.
3. That the applicants lack the competence and locus standi to institute this suit as the wrong complained of is against the 3rd Respondent and by virtue of Section 679 (2) of Companies and Allied Matters Act (C.A.M.A.), only the association itself can legally institute the action as the alleged wrongs are against the interest of all the members of the 3rd Respondent and not peculiar to the applicants. Furthermore the applicants were unable to show a cause of action vested in them specially and giving them the locus to institute this suit.?
?The contention of the applicants on the other hand are as follows:
1. That they did not sue the 3rd Respondent Incorporated Trustees of Electronics Dealers Association Iweka, Anambra. The 3rd Respondent was joined on its own application and represented in the suit by the 1st and 2nd Respondents application. That the entity they suit is the Electronics Dealers Association, Onitsha an unincorporated Association having nothing to do with Companies and Allied Matters

Act. It is the Constitution of this unincorporated Association Exhibit A that the Court is being invited to interpret and pronounce upon.
2. That the applicants have the locus standi to institute this suit because they are members of Electronics Dealers Association Onitsha as shown by their membership cards and receipts for annual dues. Further that they aspire to vic for posts in Electronics Dealers Association Onitsha and that was why they averred in the originating summons that they are affected by the undemocratic stance of the Executives.?

The trial Court determined these contentions thusly- ?It seems to me that the Respondents and to some extent the applicants are laboring under a misconception as regards the legal position of the unincorporated association Electronics Dealers Association Onitsha Nigeria (hereinafter referred to as EDA Onisha) and the Incorporated Association Electronics Dealers Association Iweka Anambra (hereinafter referred to as EDA Iweka). Both the applicants and the Respondents treat the two associations as one and the same.The applicants believe both are still in existence. The Respondents believe that EDA

Onitsha is no longer in existence but metamorphosed into EDA Iweka. Having gone through the Constitutions of the two associations, I am of the view that both are still in existence. The unincorporated Association is Electronics Dealers Association Onitsha. The Incorporated one is Electronics Dealers Association Iweka. The names are different.

The preamble of the Constitution of EDA Iweka ?says:
?The Electronics Dealers Association Iweka Anambra is an Association formed to embrace all persons trading on electronics equipment at Iweka Anambra—?
We the entire members of Electronics Dealers Association Iweka Anambra having resolved to help promote love, peace, unity and progress. Among our members do hereby give unto ourselves this Constitution.?

?The preamble of EDA Onitsha is same as above but relates to all of Onisha and not IwekaAnmbra. I have carefully gone through the Constitution of EDA Iweka, it was not indicated any where that it is the unincorporated EDA Onitsha that was now being incorporated. There was no indication any where that the assets and liabilities of EDA Onitsha is being taken over by EDA

Iweka.

The only reference to EDA Onitsha is in paragraph 24( b) where it was stated:
?To signify the assent and acceptance of this constitution by the entire members of Electronics Dealers Association, Onitsha, this constitution shall be signed by the incumbent President and Secretary General and three other members nominated in a general meeting.?

My interpretation of the above which I think is the only rational interpretation is that EDA Onitsha decided to have in addition to EDA Onitsha another association which they called EDA Iweka.

?So, even if the intention of the Respondents or the entire EDA Onitsha was to incorporate EDA Onitsha, by incorporating the Association with a different name, and without indicating in the constitution of EDA Iweka that it is EDA Onitsha that is being incorporated they failed to achieve their objectives. My finding therefore is that EDA Onisha is a different entity from EDA Iweka. The applicants did not sue the Incorporated Trustees of Electronics Dealers Association Iweka. Anambra.The Association was joined on its own application as 3rd Respondent. Electronics Dealers Association, Onitsha is

still in existence as an unincorporated body.
The trial Court also held that the applicants failed to show sufficient interest over and above the majority members of the Association to support their locus standi to bring this action and struck out the Suit. The applicants therein, dissatisfied with the said decision of the trial Court, on 12-5-2009 filed a notice of appeal to this Court, containing two grounds for the appeal. It was during the pendence of the said appeal, that the appellants herein commenced the present suit No. O/170/2009 against 1st and 2nd respondents herein.

Following the adoption of the final written addresses filed by all parties, the trial Court on 30-7-2010 rendered its judgment. The concluding part of the judgment reads that ?I have perused the affidavit exhibits, written address, reply on points of law, counter affidavit, exhibits and written address. The main thrust of the defence of the learned counsel for 3rd respondent is that the Honourable Court does not have jurisdiction to entertain this matter. It is argued that association under which 1st and 2nd respondents were sued fused with the 3rd respondent

which was incorporated under the companies and Allied Matters Act Cap 20 2004. It is contended that since the issue in the originating summons bother on regulating the operations of 3rd respondent that it is the Federal High court which has power under Section 251(1)(e) of the Constitution of Nigeria 1999 to exercise jurisdiction on the matter. The learned counsel for applicant counters that the 1st and 2nd respondents were sued on behalf of an un-incorporated body which is different from the 3rd respondent and as such does not fall into the reams of matters of which the Federal High Court would have exclusive jurisdiction. That the High Court has jurisdiction to try the matter. I see that the 1st and 2nd respondents are (1) Joseph Udeh and (2) Stephen Nnaemezie. Both are sued ?for themselves and on behalf of all the Executive members of Electronics Dealers Association Onitsha.? The 3rd respondent was later joined on its own application and is called ?Incorporated Trustees of electronic Dealers Association Iweka Anambra.? I see that the names of Joseph Udeh and Stephen Nnaemezie sued as representing Executive members of electronics

Dealers Association Onitsha appear on the certificate of registration of 3rd respondent. See Exhibit A1 attached to the counter affidavit of 3rd respondent. Therein the said Joseph Udeh and Stephen Nnamezie are listed as the trustees of the 3rd respondent. The 3rd respondent was incorporated on 4/11/07. It follows that at the time the applicants filed this originating summons on 18/5/09 the 3rd respondent was already in existence. Could it be that Joseph Udeh and Stephen Nnaemezie would be representing Executive members of electronics Dealers Association Onitsha and at the same be registered trustees of electronic Dealers Association Iweka. And the applicant contends vigorously that the two are different and separate entities. It does not seem there are different. The association under which 1st and 2nd respondents were sued could not be different from 3rd defendant. The plaintiffs maintain they belong to the same association as the 1st and 2nd defendants. Meanwhile the 1st and 2nd respondents are registered trustees of 3rd defendant. Since the incorporation of 3rd defendant subsumes the unincorporated association under which 1st and 2nd respondents were sued,

the plaintiffs are also members of 3rd defendant. The Constitution of electronic Dealers association Iweka Anambra, 3rd respondent provides as follows ?(a) This constitution shall be binding on all person trading on electronics Equipment in Onitsha. The provision of this Constitution shall prevail over the rules made by the Association and if any rule contravenes the provision of this Constitution such rule remain null and void. (b) To signify the assent and acceptance of this constitution by the entire members of Electronic Dealers Association Onitsha, this constitution shall be signed by the incumbent president and Secretary General and three other members nominated in a general meeting?. See Article 24 of Exhibit B. I see that this article 24 (supra) is essentially the same with Article 29 of the Constitution of Electronic Dealers Association Onitsha Nigeria with whom the 1st and 2nd respondents were sued. I hold that the un-incorporated association sued with 1st and 2nd respondents as two of its 6 trustees. I agree with learned counsel for 3rd respondent that once an incorporated association becomes incorporated, the un-incorporated body ceases

to legally exist. See,Kurubo v. Devemo (2006) 7 NWLR (pt. 978) 87. I further hold that the Executive members of electronics Dealers Association Onitsha with whom 1st and 2nd respondent were sued did no longer exist at the time this suit was filed since the un-incorporated body had merged into the 3rd respondent upon incorporation on 4/11/07 before this suit was filed on 14/5/09. The 1st and 2nd respondents are therefore liable to be struck out from this suit. See HI-Flow Ltd. v. Unibadan (1993)4 NWLR (pt. 290)719 at page 733 per Salami JCA (as he then was).

In the circumstance the only remaining respondent would be the 3rd respondent. I agree with learned counsel for respondent that it is the Federal High Court which has the power to exercise jurisdiction over this matter. I hold that in an action involving regulating running or management or control of companies as the 3rd respondent registered under the companies and Allied Matters Act 2004 the Federal High Court would be vested with jurisdiction. See Tanarawa Nig. Ltd. v. Plastifarm Ltd. (2003)14 NWLRT (pt 840) 355 per Salami JCA (as he then was). I hold that this Court does not have the jurisdiction to

entertain this suit. The originating summons fails and is hereby struck out.?

Dissatisfied with this judgment, the applicants on 6-8-2010 commenced this appeal No. CA/E/230/2010 by filing a notice of appeal containing 7 grounds for the appeal.

Both sides have filed, exchanged and adopted their respective briefs as follows- appellants? brief, respondents? brief and appellants? reply brief.
Appellants? brief raised two issues for determination, as follows-
1. Whether the decision in suit No. O/220/2008 is final?
2. Whether Umeadi J. rightly dealt with the issues already decided upon by Iyizoba J and overruled her?

The respondents? brief also raised two issues for determination as follows-
1. Was the High Court right in holding that it has no jurisdiction to entertain the suit.
2. Was the High Court right to strike out the names of the 1at and 2nd respondents from the suit.

I will determine this appeal on the basis of the issues for determination raised in the appellants? brief.
I would determine the two issues together.

The judgment of the trial Court in suit No.

O/220/2008 determined that Electronic Dealers Association, Onitsha and Incorporated Trustees of Electronic Dealers Association, Iweka are two distinct bodies with different names, that the two exist separate from each other, that the Unincorporated Electronic Dealers Association Onitsha was not incorporated into the Incorporated Trustees of Electronic Dealers Association Iweka, that it was the 1st and 2nd respondents herein that were sued for themselves and on behalf of Electronic Dealers Association, Onitsha and that the 3rd respondent, the Incorporated trustees of Electronic Dealers Association, Iweka was not sued by the applicants but joined as a co-defendant by order of Court upon its own application, that the appellants have no locus standi to bring the suit against 1st and 2nd respondents, that therefore the Court lacked the jurisdiction to entertain the suit.

Both sides have not agreed on the issue of whether the decision in suit No. O/220/2008 is a final one. Learned Counsel for the appellants argued, relying on Western Steel Works Ltd v. Iron & Steel Workers Union & Anor (1986) 3 NWLR (Pt.30) 617, that the decision is final as it cannot be

re-opened or decided upon again by the same Court even if presided by another judge and that the decision of the Court that it has no jurisdiction to entertain the suit concludes the right of the parties to approach the state High Court for a remedy. Learned counsel for the respondents argued in reply that the argument of Learned Counsel for the appellant that the decision in suit No O/220/2008 on the issue of jurisdiction is final is not tenable, that the case of Steel Works Ltd v. Iron & Steel Workers Union (supra) cited by the appellants is not applicable to the present case, that suit No O/220/2008 was struck out by the High Court on the ground that the appellants lack locus standi to institute the action and it is thus not a final judgment. For the above submissions he relied onEmezi v. Osuagwu (2005)21 NSCQR 3888, 404-405.
Let me consider the merit the above arguments.

It is glaring that the said judgment of the trial Court in suit No. O/220/2008 is a final decision in the sense that the issues of the existence or non existence of Electronic Dealers Association, Onitsha and its relationship with the Incorporated Trustees of Electronic

Dealers Association Iweka and the issue of the Locus standi of the applicants to sue concerning the continued stay in office of the Members of the Executive of the Electronic Dealers Association Onitsha after their constitutionally prescribed tenure of office had expired, and the need to hold elections for the purpose electing another executive cannot be re-opened in the same High Court that had decided the issues. The same Court lacks the power to revisit the same issues and the decision of the trial Court on those issues can only be revisited or reviewed in an appeal against the said decision to this Court. I am surprised that Learned Counsel for the respondent engaged in the disputation of this very clear, simple, straight forward point. No wonder, he could not proffer any reason for his said submission that the decision that the appellants lacked locus standi to institute the action is not a final decision. The restatement in Emezi v. Osuagwu (supra) relied on by him in support of his said submission does not illustrate and support his submission. The said restatement reads thusly
?.It follows therefore that where a plaintiff has been found

not to have the sanding to sue, the question whether other issues in the case had been properly decided or not does not arise. This is because the trial Court has no jurisdiction to entertain the claim. The correct position of the law therefore is that where a plaintiff is held to lack locus standi to maintain the action, as I have found in this case, the finding goes to the jurisdiction of the Court and denies it jurisdiction to determine the action, the proper order to be made in such a situation therefore is to strike out the claim.?

The Supreme Court in this decision was stating the legal implication of the decision that a plaintiff has no standing to sue. It held that such a decision touches on the jurisdiction of Court to entertain the suit and the question whether other issues in the case had been properly determined does not arise and the proper order to issue is one striking out the claim. The Supreme Court did not say that the decision is not a final one.

The contention that the decision inWestern Steel Works Ltd v. Iron & Steel Workers Union & Anor (supra) is not applicable to the instant case is not correct. Learned

Counsel for the appellants correctly relied on the restatement of the Supreme Court in that case thusly-
“If a declaration that a Court has no jurisdiction brings an action before it to an end, the decision, does, in my view, seem to partake of the nature of a final decision?.. It finally concludes the rights of the parties to approach that Court for a remedy. Similarly, if a Court gives a declaration that it has jurisdiction, it concludes the rights of the parties to approach, that Court for a remedy.? According to Oputa JSC in his contribution ?It is my view that a judgment that determines this issue of law, this issue of jurisdiction, is not only a final judgment but also a judgment on the merit on the issue of law submitted to it for determination. A judgment which determines on an issue of law, say jurisdiction, (as in this case) which party is right (the party who claims that the Court has no jurisdiction or the party who claims that it has) is in my view a judgment on the merits of that issue and also a final judgment.?
The character that identifies a decision as final is the lack of power of the Court that gave

that decision to redecide or re-open and re-consider the issue already settled by its earlier decision. In Fadiora & Anor v. Gbadebo & Anor (1978) LPELR-1224 (SC), the Supreme Court held that a judicial decision is deemed to be final, when it leaves nothing to be judicially determined or ascertained thereafter, in order to render it effective and capable of execution, and is absolute, complete and certain and when it is not lawfully subject to subsequent decision, review or modification by the tribunal which pronounced it.?

The issues decided by the judgment of the trial Court in suit No. O/220/2008 were not lawfully subject to another decision, review or reconsideration by the same trial Court irrespective of how it is constituted subsequently.

It is trite law that a Court lacks the jurisdiction to adjudicate on the issues decided by the previous judgment of the same Court or other Court of equal jurisdiction except where the judgment was obtained by fraud, where the judgment was given without jurisdiction and where the judgment is a nullity. See Okoye & Ors v. NCFC Ltd & Ors (1991) 7 SC (Pt 111)33. It is noteworthy that the

correction of clerical mistakes or accidental slips or omissions is different from the rehearing or adjudication of issues decided in the previous judgment of the Court. While it can correct the said clerical errors and accidental slips or omissions in its judgment, it cannot rehear or reconsider the issues already decided in its judgment except in the situations stated above. See Ede & Anor v. Mba & Ors (2011) LPELR-8234 (SC).

The fact that the suit was struck out does not remove the character of finality of the decision. This is because where a Court determines that the plaintiff had no locus standi to institute an action and that therefore it lacks the jurisdiction to entertain and determine the suit, the proper order it can make is one of striking out of the suit. This is because the merit of the claim was not determined by the decision. See Adesokan v. Adetunji (1994)6 SCNJ 123, Adelekan v. ECU-Line NV (2006) 5 SC (Pt. 11)32. As this Court held in Ugwu & Ors v. PDP & Ors (CA/E/259/2008 delivered on 8-3-2013) ?upon the trial Court?s determination that it lacked the jurisdiction to entertain the subject matter it should have

struck out and not dismiss the suit. The Respondents in the argument of their preliminary objection at the trial Court prayed for an order striking out the suit. There is no need to belabour this point as it is trite law that the proper order a Court should make where it has no jurisdiction to entertain a case for any reason is to strike it out except where the rules or statute provides otherwise? The trial Court was clearly in error when it dismissed instead of striking out the suit.
The significance of an order of striking out is that the merit of the case in terms of the rights or obligations sought to be enforced has not been determined and that the case is terminated on other grounds. This is what distinguishes an order of striking out from one of dismissal. An order of dismissal is usually made upon a determination of the merits of the dispute in the case. So the distinction between a striking out and a dismissal does not lie in the idea that one allows the case to be relitigated while the other permanently bars further litigation over the subject matter. This is because it is not in all situations that a striking out enables

re-litigation of a case or a dismissal absolutely bars re-litigation of the case.
There are situations where a case can no longer be re-opened even though it was struck out. An example of such a case is where a case is struck out because the subject matter of the case is not within the jurisdiction of the Court. Another example is where a case is struck out because the proceedings pending before a Court can no longer go on for the reason that it is caught up by a sunset legislation. This occurs frequently in election cases where statute prescribe time limit within which the election petition must be concluded. Once the prescribed time expires, if the petition is not yet concluded, the proceedings abate and can be struck out. There are situations where a matter though dismissed can be restored on the cause list or re-litigated. One example is where the rules of Court permit the relisting of such a dismissed case. Another examples is where the matter at the trial stage is dismissed for want of prosecution. The Supreme Court in ABIEGBE V. UGBODUME (1973) LPELR -36 HELD 1 OR (1973) 1 SC. 103 held, with particular respect to such a case, that ?to

dismiss an action for want of prosecution does not give judgment in favour of the defendants nor does it prohibit the plaintiffs from filing a fresh action?.
Another example is dismissal for non-compliance with some procedural requirements. A typical example of this is non-compliance with conditions of appeal or failure to compile and transmits records within the prescribed time. This often results in the dismissal of the Appeal without prejudice to the right of the appellant to bring back the appeal. The Supreme Court held in OBASI BROTHERS MERCHANT CO-LTD. VS. MERCHANT BANK OF AFRICA SECURITIES LTD. (2005) 2 SCNJ 272 at 279 that ?It is not all cases where a matter is dismissed that it completely terminates the case. Indeed, where a case is said to have been dismissed in the High Court but the circumstances show that such dismissal could not possibly connote or denote the determination as to put finality to the case, the Court views such dismissal as mere striking out.? In my view, the primary determinant of whether a dismissed or struck out matter can be re-opened is the basis or reason for the striking out or dismissal. ?<br< p=””

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Another argument of Learned Counsel for the appellants is that the very issues decided by the trial Court in its earlier judgment in suit No. O/220/2008 are the ones it adjudicated upon and reconsidered in its judgment in the present suit No. O/170/2009, and in the process overruled its said earlier judgment without any mention of the judgment placed before it and brought to its attention, that the trial Court did not state why it took the unusual and unconstitutional step of overruling its earlier decision, and that the trial Court had no jurisdiction or power to adjudicate on the issues already decided and settled in its earlier judgment in suit No. O/220/2008. For these submissions he relied on Ejakpomehwe Akporue & Anor v. Isicheri Okei & Ors (1973)12 SC 137, John Andy sons & Co Ltd v. NCRI (1997)3 NWLR (Pt 491)1 and Agheghen v. Waghoreghor (1974)1 SCI.
Learned Counsel for the respondents did not answer the above argument of Learned counsel for the appellants. Be that as it is, I would proceed to consider the merit of the said arguments by Learned Counsel for the appellant because as held by the Supreme Court inECHERE VS. EZIRIKE (2006)

All FWLR (pt. 323) 1597 at 1608 and by this Court in TRACTOR & EQUIPRIENT (NIG) LTD & ORS VS. INTEGRITY CONCEPTS LTD & ANOR (2011) LPELR ? 5034 and Onwugbelu V Ezebuo & Ors (CA/E/56/2009 of 21-2-2013) the mere fact that there was no answer to the said arguments does not render them automatically correct. The Court still has to consider the arguments and find out if they are correct.

The question that arises for consideration here is whether the trial Court in its judgment of 30-7-2010 in suit No O/170/2009 adjudicated on the very issues it had decided in its judgment of 11-5-2009 in Suit No. O/220/2008.

As I had held herein, the trial Court in its judgment of 11-5-2009 in suit No O/220/2008 decided that Electronic Dealers Association, Onitsha and Incorporated Trustees of Electronic Dealers Association, Iweka are two distinct bodies with different names, that the two bodies exist separate from each other, that the Electronic Dealers Association, Onitsha remained unincorporated and was not incorporated and subsumed into the Incorporated Trustees of Electronic Dealers Association, Iweka, that it was the Electronic Dealers’

Association, Onitsha that was sued through 1st and 2nd respondents, that the concern of the applicants in respect of Electronic Dealers Association, Onitsha that the Anambra State High Court had jurisdiction to entertain a suit against it as an existing unincorporated body, that the applicants were not concerned with the 3rd respondent, Electronic Dealers Association, Iweka, that Electronic Dealers Association Onitsha being unincorporated had nothing to do with the companies and Allied Matters Act, that the suit No O/220/2008 was not brought against 3rd respondent, that the 3rd respondent applied to be joined as a party and was so joined, that the plaintiffs (appellants) lacked the locus standi to bring the suit and for that reason the Court lacked the jurisdiction to entertain the suit.

I have already reproduced the relevant portion of the judgment of the trial Court of 30-7-2010 in suit No. O/170/2009 at page 19-23 of this judgment. The said judgment decides that the Electronic Dealers Association, Onitsha and the Incorporated Trustees of the Electronic Dealers Association, Iweka are not distinct from each other, that they are one and the same body as

the former being an Unincorporated body was incorporated and subsumed into the later, that the 1st and 2nd respondents who are members of the executive of Electronic Dealers Association, Onitsha are also trustees of the Incorporated Electronic Dealers Association, Iweka, that upon incorporation into Electronic Dealers Association, Iweka, the Electronic Dealers Association ceased to exist and was therefore non existent at the time suit No. O/170/2009 was filed since it had become merged into the 3rd respondent, that the 1st and 2nd respondents are liable to be struck out as they represent a non existent body, that since the 3rd respondent is the only remaining respondent, the action which involves its running or management or control as a company registered under the companies and Allied Matters Act 2004, it is the Federal High Court and not the trial State High Court that has the jurisdiction to entertain it.

?It is glaring from the judgment in suit No O/220/2008, that the issue of which as between the Federal High Court and Anambra State High Court had the jurisdiction to entertain a suit against the respondents was raised and argued by the parties and

was determined by the trial Court. It is also clear from the said judgment that the argument and determination of the issue turned on certain more primary questions as follows-
(i) Whether electronic Dealers Association, Onitsha had been incorporated into Electronic Dealers Association Iweka and therefore ceased to exist leaving the incorporated Electronic Dealers Association as the only existing body and
(ii) If electronic Dealers Association, Onitsha is now incorporated as Electronic Dealers Association Iweka and is no longer existent then is Suit No. O/220/2008 not about the management and control of electronic Dealers Association, Iweka a company incorporated under the companies and Allied Matters Act, a matter that is under the exclusive jurisdiction of the Federal High Court.

So the trial Court in suit No O/220/2008 had determined the said primary questions so as to determine which between the Federal High Court and Anambra State High Court had jurisdiction to entertain the suit against the respondents. The trial Court held that the suit did not concern the constitution of Electronic Dealers Association, Iweka (3rd respondent) who joined

as a respondent upon its own application, that the suit was in respect of electronic Dealers Association, Onitsha represented by the 1st and 2nd respondent, that Electronic Dealers Association Onitsha is an existing unincorporated body and that it was not incorporated into and merged into the 3rd respondent, that the suit not being against the 3rd respondent, a company incorporated under the Companies and Allied Matters Act, the Anambra State High Court had jurisdiction to entertain it being a suit against an existing unincorporated body.

The trial Court in suit No. O/170/2009 also determined the above primary questions to enable it decide which as between the Anambra State High Court and Federal High Court had the jurisdiction to entertain the suit brought against the 1st and 2nd respondents. It lacked the jurisdiction to decide the said primary questions and the issue of which Court between the Federal High Court and Anambra State High Court, had the jurisdiction to entertain the suit. Its decisions on these questions and issue are a nullity.

?The appellants, had, as happened in suit No. O/220/2008, brought suit No. O/170/2009 against only the

Electronic Dealers Association, Onitsha through its representatives, the 1st and 2nd respondents. The 3rd respondent, as in suit No O/220/2008 joined as respondent upon its own application.

The judgment in suit No. O/220/2008 was part of the record of the proceedings in suit No. O/170/2009 and so was placed before the trial Court. Learned counsel for the respondents in his written address raised as one of the issues for the trial Court to determine the question- whether this suit is not an abuse of Court process in view of the appeal in suit No. O/220/2008. The said judgment was Exhibit EM2 or C annexed to the affidavit in support of the motion for stay of proceedings pending the determination of the appeal against the judgment in suit No O/220/2008. So the trial Court was fully aware of the existence and contents of the said judgment in suit No. O/220/2008 and had the duty to determine issue No 2 in the respondent?s final written address which contended that suit No. O/170/2009 was an abuse of process since an appeal against the trial Court?s judgment in suit No. O/220/2008 was pending in this Court. The trial Court did not consider this

issue and remained silent on it.

The very reliefs that were claimed for in the instant suit No. O/170/2009 were the reliefs claimed for in suit No. O/200/2008 and the parties in both cases were essentially the same.

It is clear from the applications for stay of the proceedings in suit No O/170/2009 pending the appeal against the decision of the trial Court in suit No. O/220/2008 and the ruling of the trial Court dismissing the applications and issue No 2 in the respondents? final written address in opposition to the originating summons, that the trial Court in suit No. O/170/2009 was aware of the pendence of an appeal against its earlier decision on the same issues in suit No. O/220/2008 in this Court.

It is clear from the foregoing that the trial Court in its judgment of 30-7-2010 in suit No. O/170/2009 adjudicated on the very issues and questions it had decided in its judgment of 11-5-2009 in suit No. O/220/2008 and even overruled itself, an exercise it had no jurisdiction to engage in. As held by the Supreme court in Emordi & Ors v. Kwentoh & Ors (1996) LPELR-1135 (SC). ?It is not competent of a Judge to overrule the

decision or ruling made by another Judge or sit in judgment over the decision of a brother Judge. The reason for this which is not far to seek, stems from the fact that the Judges are of co-ordinate jurisdiction and no one Judge can therefore sit on appeal over he decision or ruling of his brother Judge.? In Akporue & Anor v. Okei & Ors (supra) cited by Learned Counsel for the appellants, the Supreme Court held that ?no Judge is competent to sit on appeal over the decision or Order made by a brother Judge. In the con of our legal system, judicial review is primarily the function of the appellate Court.? See also Okoye & Anor. v. NCFC Ltd. & Ors (supra), Ede & Anor v. Mba (supra) and Agheghen v. Waghoreghor (supra).

The 3-7-2010 judgment of the trial Court in suit No O/170/2009 deciding the very issues it had decided on 11-5-2009 in suit No. O/220/2008 and disregarding the fact that an appeal against its said earlier decision was pending in this Court, was clearly in contempt and abuse of the pending appeal against its earlier decision on the same issues. The refusal of the trial Court to determine one way or the

other issue No. 2 in the respondents? final written address as to whether suit No O/170/2009 was an abuse of Court process in view of the pending appeal against its decision in suit No. O/220/2008 and amounts to an unfair adjudication and rendered the impartiality of the trial Court suspect.

In the light of the foregoing I resolve the issues raised for determination in the appellants? brief in favour of the appellants.

On the whole this appeal succeeds. It is allowed. The judgment of the High Court of Anambra State in suit No.O/170/2009 delivered on 30-7-2010 is hereby set aside.
The parties shall bear their costs.

HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read the judgment just delivered by my learned brother EMMANUEL AKOMAYE AGIM JCA. I am in complete agreement with his reasoning and conclusion that the appeal be allowed. I have nothing to add to the brilliant and exhaustive treatment of the issues by my learned brother. I also allow the appeal and abide by the order as to costs.

TOM SHAIBU YAKUBU, J.C.A.: I am in total agreement with the concise and lucid reasons proffered by my Lord, EMMANUEL AKOMAYE

AGIM, JCA; in the lead judgment. The appeal has merits and it is accordingly allowed.

?The judgment of the Anambra State High Court in re Suit No.0/170/2009, delivered on 30th July, 2010 is hereby set aside.
Each side to bear own costs.

Appearances

ALEXANDER IFEANYI AGBOGU, ESQ.For Appellant

AND

P.A. AFUBA, ESQ. with him, G.B. OBI, ESQ. and O.M. ONYIA, ESQ.For Respondent