CHIEF ALBANUS OZURUOHA v. EZE-ELECT IFEANYI L. A. ALOZIE & ORS
(2019)LCN/12740(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 26th day of February, 2019
CA/OW/80/2015
RATIO
APPEAL: WHEN THE GROUNDS OF APPEAL ARE GROUNDS OF LAW
“It is the law that where the grounds of appeal are grounds of law alone there is no need for the leave of the Court to be first sought and obtained. See Section 241 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). See also the cases of DAPIANLONG & ORS VS. DARIYE & ANR. (2007) LPELR-928 (SC); LONG-JOHN VS. BLAKK (2005) 17 NWLR (pt. 953) 1.” PER IBRAHIM ALI ANDENYANGTSO, J.C.A.
JURISDICTION: THE QUESTION OF JURISDICTION
“The question of jurisdiction of a Court is a radical and crucial question of competence because if a Court has no jurisdiction to hear and determine a case, the proceedings are and remain a nullity ab initio, no matter how well conducted and brilliantly decided they might be, because a defect in competence is not intrinsic, but extrinsic to the entire process of adjudication. Hence jurisdiction of a Court is considered to be the nerve centre of adjudication, the blood that gives life to an action in a Court of law in the very same way that blood gives life to the human being. See DAPIANLONG & ORS VS. DARIYE & ANOR (2008) 8 NWLR (pt. 1036) 332 (SC). Therefore any proceedings conducted without jurisdiction, no matter how well conducted and how brilliantly decided will amount to a nullity which is nothing but a wasted intellectual judicial investment.” PER IBRAHIM ALI ANDENYANGTSO, J.C.A.
JUSTICES
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
IBRAHIM ALI ANDENYANGTSO Justice of The Court of Appeal of Nigeria
Between
CHIEF ALBANUS OZURUOHA Appellant(s)
AND
1. EZE-ELECT IFEANYI L. A. ALOZIE
2. LONGINUS ODUKWU
3. CHIEF ENGR. PETER OHAGWA (KSM)
4. PROF. ANTHONY ANWUKA (SEC. TO GOVT. IMO STATE)
5. ATTORNEY-GENERAL, IMO STATE
6. LEONARD CHIBUZO IFI Respondent(s)
IBRAHIM ALI ANDENYANGTSO, J.C.A. (Delivering the Leading Judgment):
This is an interlocutory appeal against the Ruling of HON. JUSTICE GODDY I. ANUHIHU, J.of the Imo State High Court sitting, at Oguta Judicial Division, and delivered on 31st March, 2015 in Suit NO. HOG/69/2012.
FACTS OF THE CASE.
The 1st Respondent in this appeal, Eze-Elect Ifeanyi L. A. Alozie, had filed the Suit NO. HOG/69/2012 at the lower Court claiming the reliefs at pages 2 – 3 of the Record of Appeal as follows:-
1. A declaration that the Ezeship throne or stool of Uwaorie-Agwa Autonomous Community is hereditary.
2. A declaration that Alozie Maduagwu family is the ruling house in the Uwaorie-Agwa Autonomous Community.
3. A declaration that the claimant is the rightful person to ascent to the throne of his forefathers in Uwaorie-Agwa Autonomous Community.
4. A declaration that neither Longinus Odukwu, Emmanuel EiimaduekwuIfi nor Ernest EjimaduekwuIfi or Albanus Ozuruoha is entitled to succeed to the Ezeship or chieftaincy throne or stool of Uwaorie-Agwa Ancient Kingdom.
5. An order of perpetual injunction restraining the 1st, 2nd, 3rd and 7th Defendants from parading themselves or allowing themselves to be paraded as the Eze or traditional ruler of Uwaorie-Agwa autonomous community in the Oguta L.G.A of Imo State.
6. An order of perpetual injunction restraining the 4th, 5th and 6th Defendants and/or their agents from recognizing or further recognizing or according recognition to either the 1st, 2nd, 3rd, or 7th Defendant as the Eze or traditional ruler of Uwaorie-Agwa Autonomous Community and/or issuing or presenting the 1st, 2nd, 3rd, or 7th Defendant with any staff of office or instrument of office or authority as the Eze or traditional ruler of Uwaorie-Agwa Autonomous Community Oguta L.G.A. of Imo State.
7.The sum of N200,000,000.00 (Two Million Naira) only being general damages against the defendants jointly and severally.
While the suit was pending, the Governor of Imo State on the 16th July, 2013, proclaimed the Appellant the Traditional Ruler of Uwaorie-Agwa Autonomous Community. As a result of this proclamation, the 3rd Defendant, Ernest EjimaduekwuIfi, (now deceased) on 22nd July, 2013 filed a motion seeking to join the Appellant as a party in the suit (page 304 of Record). The motion, taken on the 5th November, 2013 was granted, joining the Appellant as the 7th Defendant. In the said motion, the lower Court also granted an injunction restraining all the disputants including the Appellant, then as the 7th Defendant, from tampering with the Res which is the Ezeship of Uwaorie-Agwa Autonomous Community in Oguta L. G. A. of Imo State.
On the 31st March, 2014 the Appellant was given a certificate of recognition and staff of office by the Governor of Imo State. The 1st Respondent then filed a motion seeking for the setting aside of the certificate of recognition and staff of office given to the Appellant then as 7th Defendant. The lower Court on 31st March 2015 gave a ruling setting aside the recognition given by the Governor of Imo State during the pendency of the suit (pages 2-4 of the supplementary record). This Ruling has generated this appeal, the original notice of which is contained at pages 608 ? 612 of the Record of Appeal. Meanwhile the 3rd Defendant died and his name was struck out from the proceedings on 23rd September, 2014 and the Appellant then became the 6th Defendant in this proceeding.
However this Notice of Appeal was amended with the leave of this Court granted on 4/5/2017. The amended Notice of Appeal contains 5 grounds of Appeal, which, shorn of their particulars are as follows:-
1.ERROR IN LAW
The learned trial judge erred in law when he granted the application for setting aside the recognition of the appellant on the basis of the order of interim injunction made on 5th November, 2013 in the absence of the appellant thereby violating the appellant’s right to fair hearing.
2. ERROR IN LAW
The learned trial judge erred in law in granting the equitable remedy of setting aside the recognition of the appellant as sought by the claimant/respondent who is in default of the order of Court made in the proceedings.
3. ERROR IN LAW
The learned trial judge erred in law when he predicated his decision setting aside the recognition made by the Governor of Imo State who is not a party to the suit on the order of interim injunction that had lapsed by operation of law at the time of recognition complained of and thereby acted without jurisdiction.
4. ERROR IN LAW
The learned trial judge erred in law when he held as the basis for setting aside the recognition of the appellant as the Traditional Ruler of Uwaorie Agwa Autonomous Community, that; Unless the position is reversed, the Court cannot be determining a subject-matter which is already appropriated by one of the parties.”
5. GROUND OF APPEAL (sic)
The learned trial judge erred in law when he held that:
The setting aside of the action of the Governor in recognizing the 6th defendant when the Court is yet to determine the rights of the parties in the suit will be in the interest of all or at least majority of the parties in the case
When the said Governor was not a party to the suit.?
The two reliefs sought are as follows:-
(a). An order setting aside the Ruling of the lower Court delivered in this matter on 31/3/2015 setting aside the recognition of the appellant as the traditional ruler of Uwaorie Agwa Autonomous Community.
(b). An order dismissing the Motion for setting aside the recognition of the Appellant.?
Briefs of arguments were filed and exchanged in accordance with the Rules of this Court.
The Appellant filed his brief of argument on 17th May, 2017; Reply briefs to the 1st and 2nd Respondents? briefs of argument on 5th April 2018 and 15th February 2018 respectively. The 1st Respondent filed his brief of argument on 25th September 2017 but deemed properly filed on 1st March 2018. His notice of preliminary objection was filed on 1st April, 2016.
The 2nd Respondent filed his brief of argument on 26th June, 2017; a notice of preliminary objection on 1st March, 2018 and a list of additional authorities on 24th October 2017. The 3rd Respondent did not file any briefs.
The 4th – 6th Respondents filed their joint brief of argument on 9th July 2018. All these processes were adopted on 27th November 2018 when this appeal was heard.
From the 5 grounds of appeal, the learned Appellant’s Counsel, Chief F. A. Onuzulike Esq. formulated three (3) issues at page 4 thus:-
3.01. Whether the order of the lower Court setting aside the recognition of the appellant by the Governor of Imo State who is not a party to the suit was made without jurisdiction. Grounds 3, 4 and 5.
3.02. Whether the order of interim injunction made against the appellant in his absence did not violate the appellant’s right to fair hearing. Grounds 1.
3.03. Whether a party who is in breach of a Court’s order is entitled to an equitable discretion of the Court. Ground 2.?
The 1st Respondent’s learned Counsel Chief C. O. C. Ezerebo, ACP, (Rtd) formulated three (3) issues in his brief of argument at page 5 as follows:-
i. Whether the Appellant was right to have presented himself for recognition by the Governor as the Eze or Traditional Ruler of Uwaorie Agwa Autonomous Community and whether the Governor was also right in recognizing him when the matter is still pending in the Court; and contrary to the Imo State of Nigeria Traditional Rulers and Autonomous Communities Law (No. 6) of 2006.
ii. Whether the lower Court is right in setting aside the recognition.
iii. Whether this appeal is not abuse of due process of Court.
The learned Counsel for the 2nd Respondent donated a sole issue for determination thus:-
“Was the Learned Trial Judge not right in setting aside the recognition of the Appellant as Traditional Ruler of Uwaorie Agwa Autonomous Community, which recognition was given while the suit to determine the rightful occupant of the stool is pending before him
C. J. Duruewuru Esq., then Senior State Counsel in the Ministry of Justice Owerri, Imo State, also donated a sole issue on behalf of the 4th – 6th Respondents thus:-
“Whether the order of the lower Court setting aside the recognition of the appellant by the Governor of Imo State who is not a party to the suit was made without jurisdiction.”
I have already indicated that the 1st and 2nd Respondents filed notices of Preliminary Objection. I shall therefore take them before considering the main appeal, as it is trite and elementary law that a preliminary objection being a pre-emptive strike, its resolution will determine whether or not the appeal will be determined on the merit. See JIM JAJA VS. C.O.P RIVERS STATE & ORS (2012) LPELR 20621 SC at page 10 para F.
Now the preliminary objection of the 1st Respondent filed on 1/4/2016 in which he urged us ?to dismiss the purported Notice of Appeal? of the Appellant, is predicated upon the following grounds:
1. Non-compliance with the laws thereby rendering the notice of appeal incompetent which robs the Court of jurisdiction.
2. False and Fraudulent Misrepresentation.
3. Abuse of Process.?
The 2nd Respondent’s Notice of preliminary objection in which he urged us ‘to strike out this appeal for gross incompetence’, has the following as its grounds:-
(a) It is an interlocutory appeal brought without the leave of the High Court or the Court of Appeal.
(b) The appeal is against the exercise of discretion by the High Court.
(c) The issue formulated at paragraph 3.02 has no bearing to the Appeal.?
These preliminary objections were taken together with the main appeal on 27/11/2018 when the appeal was heard and Learned Counsel adopted their briefs.
I shall begin with the preliminary objection of the 1st Respondent. Chief C.O.C Ezerebo, ACP (Rtd) relied on all the paragraphs of the affidavit deposed to by the 1st Respondent which essentially can be summarized thus: that the Appellant in his original notice of appeal omitted his name as one of the disputants in this proceeding; that the Appellant did not seek leave either of the High Court or this Court before filing the notice of appeal as he has no right of appeal; that he was not served with the notice of appeal; that his exclusion from the parties in this appeal was deliberate and fraudulent as the Appellant intended to obtain judgment in his absence in order to perpetuate himself on the throne; that this appeal is one of the ploys of the Appellant to frustrate the hearing of the main suit at the lower Court as he had done in a number of instances, citing Appeal NO. CA/OW/2014 (sic) EZE – ELECT ALBANUS OZURUOHA VS. EZE-ELECT IFEANYI L. A. ALOZIE & 6 ORSwhich renders the present appeal an abuse of Court/Judicial process.
In his written address in support of the preliminary objection, the 1st Respondent?s Learned Counsel gave a summary of the facts of this case and formulated a sole issue for determination of the preliminary objection thus:-
‘Whether the Claimant/Applicantis not entitled to have the purported notice of appeal dismissed.’
Chief C. O. C. Ezerebo Esq, took the three grounds of preliminary objection seriatim as follows:
1. Non-compliance with the law
Learned Counsel submitted that the purported notice of appeal is grossly incompetent as it is a violation of Section 242 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and also a violation of Section 14 (1) of the Court of Appeal Act dealing with sealing and obtaining the leave of Court before filing an appeal against an interlocutory order of Court. He submitted further that the order of the lower Court appealed against is an interlocutory order in respect of which no leave has been sought and obtained by the appellant; that in the circumstances the purported Notice of Appeal is grossly incompetent and deprives this Court of jurisdiction to entertain same. He cited and relied on MADUKOLU VS. NKEDILIM (1962) 1 ALL NLR 587.
2. False & Fraudulent Misrepresentation
It is submitted that the purported notice of appeal is characterized by false and fraudulent misrepresentation which also renders it grossly incompetent. He cited the omission of the 1st Respondent from the list of parties in the Suit NO. HOG/69/2012 at the lower Court and non service of the notice of appeal on him as instances of the falsehood and fraudulent misrepresentation and submitted that this action of the appellant is contrary to Order 6 Rule 2 (1) of the Court of Appeal Rules 2006.
3. Abuse of Process.
The learned Counsel submitted that this notice of appeal is an abuse of Court process as it is aimed at frustrating the hearing and determination of the suit at the lower Court. He urged us to prevent this abuse by stopping the appellant from continuing in his conduct and to dismiss the appeal, relying on NZIDEE VS. KOOTU & ANR (2007) 1 NWLR (pt. 1014) 99 at 124 – 125 GB.
Learned Counsel traced the history of this case at the lower Court and the conduct of the Governor of Imo State in granting the appellant recognition when a suit is pending in Court, the non-appearance of the Appellant before the lower Court only to rush to this Court with this appeal apparently to stall the proceedings at the lower Court and finally urged us to uphold the preliminary objection and dismiss the appeal, relying on AKINOLA VS. VICE CHANCELLOR, UNILORIN (2004) NWLR (pt. 885) 616; CLETUS O. C. EZEREBO VS. IGP & 2 ORS (unreported) Appeal NO. CA/A/151/06 delivered on 10th July 2008; ABUBAKAR VS. B. O. & A.P LTD (2007) 18 NWLR 335 and ONYEABUCHI VS INEC (2002) 8 NWLR (pt. 796) 417. He concluded that from the totality of his submissions it is clearly demonstrated that this appeal is incompetent and so should be dismissed with exemplary cost.
For the 2nd Respondent it is submitted thus:-
(a) Non obtaining of leave:-
It is submitted that the grounds in the amended notice of appeal are complains about or an alleged injudicious use of judicial discretion, which are grounds of mixed law and facts which will require the leave of either the High Court or the Court of Appeal, relying on U.B.N PLC VS. SOGUNRO (2006) 16 NWLR (pt. 1006) 504 at 519 – 520 paras E ? C.
It is further submitted that the non obtaining of leave before filing the Notice of Appeal has rendered same incompetent and legally non-existent. He relied on ABALAKA VS. PRESIDENT, FRN (2012) 5 NWLR (pt. 1202) 102 at 119 paras D & E; KHEREKHOLO VS. UDA (2011) 3 NWLR (pt. 1234) 323 at 334 para G and 335 paras A – B; R.T.F.G.C.N. VS. OKOISOR (2007) 13 NWLR (pt. 1052) 471 at 483 paras B – D and then urged us to so hold.
(b) The appeal is against the exercise of discretion by the High Court.
Counsel did not make any submission in respect of this ground and so is taken as having been abandoned.
(c) Incompetent issue:-
It is contended that the issue formulated by the Appellant distilled from Ground 1 of the appeal is incompetent. Learned Counsel reproduced a portion of the Notice of Appeal and submitted that this appeal is not about the interim injunction made on 5th Nov., 2013 which has not been appealed against, so the appellant cannot bring in through the window what he could not bring in through the door. He relied on NJC VS. AGUMAGU (2015) 10 NWLR (pt. 1467) 365, and submitted that the appeal is fundamentally defective or incompetent and urged us to so hold and then strike out the appeal.
The Appellant did not file a reply to the preliminary objection of the 1st Respondent, as he did that of the 2nd Respondent. In his Reply to the 2nd Respondent’s preliminary objection he submitted that all the objections raised by the 2nd Respondent are misconceived. He submitted that it is not every interlocutory appeal that leave of Court is required and that once it is on grounds of law no leave is required, relying on Section 241 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and DAPIANLONG VS. DARIYE (NO.1) (2007) ALL FWLR (pt. 3730) 1 paras A – B & F – G and TAWAKALITU VS FRN (2011) ALL FWLR (pt. 561) 1413 at 1462 paras B-F. He then urged us to hold that all the grounds of appeal in this case are grounds of law, covered under Section 241 (1) (b) of the 1999 Constitution of Federal Republic of Nigeria (as amended).
Learned Counsel referred to NSIRIM VS. AMADI (2016) 5 NWLR (pt. 1504) 62 paras A (SC) and the ruling of the lower Court of 31st March, 2015 and submitted that the appellant has complained about the ruling of the lower Court setting aside his recognition by the Governor of Imo State and not the exercise of a judicial discretion in the suit. He cited the cases ofN.J.C VS. AGUMAGU (2015) 10 NWLR (pt. 1467) at 419 – 420, and OJUKWU VS. GOV. LAGOS STATE (1985) 2 NWLR (pt. 10) 806, and urged us to hold that the preliminary objections lack merit and then dismiss same.
RESOLUTION OF THE ISSUES
In the brief of argument in support of the 1st Respondent’s preliminary objection, a lone issue is formulated thus:-
‘Whether the Claimant/Applicant is not entitled to have the purported notice of appeal dismissed.’
I note that the 1st ground of objection of both the 1st and 2nd Respondents are one and the same thing in material particulars as they both touch on filing the appeal in an interlocutory ruling of the lower Court without first seeking and obtaining the leave of either the lower Court or this Court.
It is the law that where the grounds of appeal are grounds of law alone there is no need for the leave of the Court to be first sought and obtained. See Section 241 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). See also the cases of DAPIANLONG & ORS VS. DARIYE & ANR. (2007) LPELR-928 (SC); LONG-JOHN VS. BLAKK (2005) 17 NWLR (pt. 953) 1.
Section 241(1) of the 1999 Constitution makes provision for appeals as of right from the Federal High Court, High Court of a State, etc and paragraph (b) of Subsection (1) of the section is to the effect that where the ground of the appeal involves questions of law alone, then decision in civil and criminal proceedings can be appealed against as of right without leave.
The duty on the Court is to examine the grounds of appeal filed to see whether they are grounds of law alone or facts or mixed law and facts to enable the Court determine whether or not leave is required.
In doing so, the grounds of appeal and the particulars thereof should be considered, as it is not the description or appellation given to the grounds such as ‘error in law’ or ‘misdirection’ that makes the grounds so. It has been held that the Court should examine the grounds and their particulars and identify the substance of the complaint, in order to resolve the issue of whether a ground of appeal is of law or fact or mixed law and fact. See SHITTU VS. P.A.N. LTD (2018) 15 NWLR (pt. 1642) 195 at 207 paras D – E. The guiding principles in determining whether a ground of appeal is that of law, facts, or mixed law and facts are as follows:-
(1) Whether the Court is being invited to investigate the existence or otherwise of certain fact(s) upon which the award of damages to the Respondent was based, such a ground is of mixed law and fact.
(2) A ground which challenges the findings of facts made by the trial Court or involves the issue of law and fact can only be argued with the leave of the appellate Court, if the judgment being challenged is that of the Court of Appeal.
(3) Where the evaluation of facts established by the trial Court before the law in respect thereof is applied is under attack or question the ground of appeal is that of mixed law and fact.
(4) Where the evaluation of evidence tendered at trial is exclusively questioned, it is a ground of fact.
(5) A ground of law arises where the ground of appeal shows that the trial Court or appellate Court misunderstood the law or misapplied the law to the proved facts or admitted facts.
See: 1. GABRIEL JIM JAJA VS. COP RIVERS STATE & ORS. (2012) LPELR-20621 SC P 11-12 PARAS F-C 2. OGBECHIE VS. ONOCHIE (1986) 2 NWLR (PT. 23) 484 @ 491 3. EHINLANWO VS. OKE (2008) 6-7 SC (PT.11) 123 @159 4. JOV. VS. DOM (1999) 7 SC (pt. 3) 4
5. COMEX LTD VS. NAB LTD (1997) 3 NWLR (pt. 496) 620 at 658 6. AJUWA VS. S.P.D.C (NIG) LTD (2011) 12 SCNJ 596. 7. OGUNDELE VS. AGIRI (2009) 12 MJSC (PT. 1) 126 @ 150.
In the instant case, I have carefully perused the grounds of appeal and their particulars, and it seems to me clear that they are all grounds of law. Therefore it is not necessary for the appellant to first of all seek and obtain the leave of the Court below or this Court before filing this appeal. I so hold.
On the grounds of False and Fraudulent misrepresentation, I note that this is based on the fact that the 1st Respondent’s name was initially omitted from the list of the parties on the original notice of appeal. However, it is to be observed that when the Appellant was served with the notice of preliminary objection by the 1st Respondent, he filed a motion seeking leave of Court to amend his notice of appeal which leave was granted on 4/5/2017, resulting in the Amended Notice of Appeal, incorporating the name of the 1st Respondent. This complaint therefore no longer has any merit.
On abuse of Court process, I hold that none exists in this matter as it has not been so demonstrated. It is not enough to depose in an affidavit that the Appellant has filed similar cases without exhibiting the proceedings.
Consequently, I hold that the preliminary objection raised by the 1st Respondent lacks substance and same is hereby dismissed.
In respect to the 2nd Respondent, I have already resolved the issue of leave of Court when considering the objection of the 1st Respondent. Same has taken care of this ground by the 2nd Respondent.
In respect to the fact that the appeal is against the exercise of the discretion by the lower Court, I have earlier observed that there was no submission on this ground. Same is taken as having been abandoned.
In respect to issue formulated in paragraph 3.02 of the Brief of Argument of the Appellant having no bearing to the appeal, I hereby reproduce the issue for clarity;
3.02. Whether the order of interim injunction made against the appellant in his absence did not violate the appellant’s right to fair hearing. Grounds 1 (sic)
On careful perusal and consideration of the processes in this matter, it is clear that the Ruling of the lower Court delivered on 31/3/2015 was based on the interim injunction handed down on 5/11/2013 by the lower Court. It is therefore about this appeal. I so hold.
On the whole, I hold the firm view that the preliminary objection by the 2nd Respondent has no substance and same is also hereby dismissed. Now, to the appeal proper.
Having earlier in this judgment reproduced the issues, I shall now go straight to consider them.
FOR THE APPELLANT
ISSUE 1
Chief F. A. Onuzulike Esq., summed up the case and submitted in summary that the order of interim injunction made on 5/11/2013 in the appellant’s absence affecting him is a violation of his right to fair hearing. He referred to Order 39 Rule 1 (1) of the Imo State High Court (Civil Procedure) Rules and the cases of E.S.C.S. LTD VS. N.M.B. LTD (2005) ALL FWLR (pt. 269) 1805 C – D; DARE VS. GUSAU (2013) ALL FWLR (pt. 690) 1440 at 1452; NICO OLIVER VS. DANGOTE IND. LTD (2010) ALL FWLR (pt.506) 1858 at 1880 E-F and a portion of the Ruling of the lower Court of 31/3/2015 and submitted that the lower Court was wrong to have made an order against the appellant on the 5/11/2013 when he was yet to be a party in the case and that the Governor of Imo State was also not a party in the case.
He cited the cases of OGBONOA VS. NKANGINIEME (2010) ALL FWLR (pt. 502) 1033 at 1048 F-G and TANIMOWO VS. ODEWOYE (2008) ALL FWLR (pt. 424) 1513 at 1528 1529, F-A and submitted that the order made on 5/11/2013 did not bind the Appellant; and that same is a nullity as it was made without jurisdiction. He again cited AGBOMASO VS. OKPKO (2005) ALL FWLR (pt. 291) 1606; JIBRILU VS. JUBRIL (2012) ALL FWLR (pt. 638) 923 at 943 F and NIGERIAN POSTAL SERVICE VS. MORDI (2008) ALL FWLR (pt. 406) 1817 and submitted that without jurisdiction, the lower Court could not make binding orders, and urged us to resolve issue 1 in favour of the appellant.
ISSUE 2
Learned Appellant’s Counsel reproduced a portion of the Ruling of the lower Court at page 3 of the Supplementary Record and submitted that the appellant, who was joined as the 7th Defendant in the suit on 5/11/2013, when he was not in Court and was not served with any process, and yet was made to be bound by an order of Court, has had his right to fair hearing violated in breach of Section 36 of the Constitution of Federal Republic of Nigeria 1999 (as amended). He referred to GUARANTY TRUST BANK PLC VS. EKEMEZIE (2013) ALL FWLR (pt. 677) 697 at 711 A – B; BIBUS ENGINEERING LTD VS. ALMASOL (NIG) LTD (2013) ALL FWLR (pt. 666) 584 at 502 B – G and submitted that the conduct of the lower Court in basing its order of 31/3/2015 on the injunctive order of 5/11/2013, which together with the processes were ordered to be served on him but were not served as ordered, was wrong in law.
Learned Appellant’s Counsel referred us to page 473 of the Record of Appeal containing the affidavit of the Appellant paragraphs 7 – 15 and submitted that the order of Court made on 5/11/2013 was not served on him until he had been recognized and Staff of office given to him by the Governor of Imo State. He then submitted that this is a classic case of denial of fair hearing. He urged us to resolve this issue in favour of the Appellant.
ISSUE 3
Learned Appellant’s Counsel on this issue submitted that the 1st-3rd Respondents did not serve him with their amended processes as ordered by the lower Court on 5/11/2013 and so were in breach of the Court’s order and consequently would not be entitled to an equitable discretion of the Court, relying on BABINTON-ASHAYE VS. E.M.A. GEN. ENT. (NIG) LTD (2012) ALL FWLR (pt. 645) 256 at 301 B – E; OJUKWU VS. GOV. LAGOS STATE (1986) N.W.L.R. (pt. 26) 29; N.L.C. VS. PACIFIC MERCHANT BANK LTD (2012) ALL FWLR (pt. 640) 1211 at 1226 para D and ROBERT VS. CHINDA (2010) ALL FWLR (pt. 550) 1344 at 1363 para C. He then urged us to resolve this issue in his favour.
In conclusion, we were urged to allow the appeal on the grounds that:-
(a) The setting aside by the lower Court of the recognition of the appellant by the Governor of Imo State as the Traditional Ruler of his community was made without jurisdiction;
(b) The order of interim injunction made against the Appellant when he was not served with the process joining him in the suit was made without jurisdiction and in violation of his right to fair hearing; and
(c) The 1st-3rd Respondent being in violation of the order of the Court to serve the Appellant with the processes joining him in the suit are not entitled to the equitable order setting aside the Appellant’s recognition.
FOR THE 1ST RESPONDENT
ISSUE 1
The submissions of Chief C. O. C. Ezerebo Esq., the learned Counsel for the 1st Respondent can be summarized as follows:-
(a) The office of the Att-Gen of Imo State is a creation of the Constitution and therefore the Chief Law Officer for the State. Therefore a suit against him is a suit against the Governor of the State. Consequently the suit commenced by the 1st Respondent against the Att-Gen was commenced against the Governor of the State, relying on A-G ABIA STATE VS. AGHARANYA (1999) 6 NWLR (pt. 607) 362.
(b) Assuming without conceding that this is a case of non-joinder or mis-joinder of parties Order 13 Rule 16 of the Rules of Imo State High Court (Civil Procedure) Rules has saved the suit. He submitted that the conduct of the Governor in recognizing the Appellant as the Traditional Ruler of his community is void ab initio, relying on CCB PLC & ANOR VS JONAH DAN OKORO EKPERI (unreported) SC 6/2002 delivered on 26/2/2007.
(c) That by the doctrine of lispendens the Governor could not have validly given recognition to the Appellant, relying on AMAECHI VS. INEC (2008) 10 WRN 1 SC 258 and NETWORK SECURITY LTD VS. DAHIRU IKAKWO (2003) 11 NWLR (pt. 380) 53.
(d) That both the Appellant and the Governor are in serious breach of the law in their conduct of 16/7/2013 and 31/3/2014, since by the provisions of Section 4 (2) of the Imo State of Nigeria Traditional Rulers and Autonomous Communities Law No. 6 of 2006 it is not the duty of the Governor to enthrone the Appellant as the Traditional Ruler of his Community. So his conduct has amounted to nothing as it is null and void ab initio. He urged us to resolve the issue against the Appellant.
ISSUE 2
Learned Counsel referred to his submission under Issue 1 above and submitted that by the authorities of F.A.T.B. VS. EZEGBU (1993) 6 NWL (pt. 297) 1 at 4 the lower Court was right to have set aside the recognition accorded the Appellant by the Governor of Imo State as it was an act of executive lawlessness. He urged us to resolve this issue in favour of the 1st Respondent.
ISSUE 3
Learned Counsel submitted that this appeal is an abuse of process. He stated that other cases involving the appellant came up in Court on 5/11/2013 and that he was in Court and was served with the motion for joinder and so cannot now say he was not aware of the order of 5/11/2013. He submitted that the conduct of the Appellant was perjury as he was in Court and aware of the orders of Court, relying on AKINOLA VS. VICE CHANCELLOR UNILORIN (2014) 1 NWLR (pt. 885) 616; CLETUS O.C. EZEREBO VS. IGP & 2 ORS. (unreported) APPEAL NO. CA/A/151/06 delivered on 10th July 2008 and ABUBAKAR VS. B.O. & A.P. LTD (2007) 18 NWLR 335 (sic). He again submitted that this appeal is frivolous hence an abuse of process and then urge us to resolve this issue against the Appellant and in favour of the 1st Respondent.
FOR THE 2ND RESPONDENT
ISSUE 1
Learned Counsel for the 2nd Respondent quoted in extenso the decision of the Supreme Court in F.A.T.B. VS. EZEGBU (1993) 6 NWLR (pt. 297) 1 at 25 paras C-D and submitted that the thrust of this appeal is a challenge on the exercise of the discretionary power of the learned Trial Judge to enforce the age old doctrine of lispendens. He then urged us to dismiss the appeal and uphold the decision of the trial Court.
FOR THE 4TH – 6TH RESPONDENTS
ISSUE 1
For the 4th – 6th Respondents, the learned counsel,C. J. Duruewuru Esq., who settled the brief adopted the submissions of the Appellant in toto and emphasized that the Governor of Imo State, not being a party to the suit, cannot have the exercise of his statutory powers set aside by the lower Court. Counsel relied on all the authorities cited and relied upon by the appellant and urged us to resolve this issue in favour of the 4th – 6th Respondents and to hold that the order of the lower Court made on 31/5/2015, setting aside the recognition given to the appellant by the Governor of Imo State who was not a party to the suit, was made without jurisdiction.
The Appellant filed a reply brief to the 1st Respondent’s brief which mainly addresses the several misrepresentation of facts of the case presented in that brief. It is to be noted, which is trite, that a reply brief is filed when an issue of law or argument raised in the Respondent’s brief calls for a reply.
Where a reply brief is necessary, it should be limited to answering new points arising from the Respondent’s brief. Since the reply brief of the Appellant in this case only debunks the statement of fact dealing with conduct of the Appellant at the trial Court, I need not consider them. See OLAFISOYE VS. F.R.N. (2004) 4 NWLR (pt. 864) 580.
It is also trite that the filing of a reply brief by the Appellant is not mandatory. An appellant is only required to file a reply brief in cases where the Respondent’s brief raises issues or points of law not covered in the Appellant’s brief. Otherwise it may amount to concession of the points of law or new issues raised in the Respondent’s brief. See POPOOLA VS. ADEYEMO (1992) 8 NWLR (pt. 257) 1 SC and SHUAIBU VS. MAIHODU (1993) 3 NWLR (pt. 284) 748 CA.
However the Appellant’s reply brief to the brief of argument of the 2nd Respondent deals with issues of law raised in the 2nd Respondent’s brief.
Firstly on lispendens, the Appellant’s learned Counsel submitted that the 2nd Respondent’s counsel did not cover the issues arising in this appeal as he only dealt with lispendens and ignored the question of lack of jurisdiction of the lower Court to make the order of 5/11/2013. Again it is submitted that the 2nd Respondent completely ignored the issue of the breach of Section 36 of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
Learned Appellant’s Counsel argued that the issue is not that an order was made during the pendency of a suit which was violated, but that the lower Court made an order against parties in the suit and enforced it on persons who were not parties to the proceedings at the time the order was made. He then submitted that the cases cited by the Respondent’s Counsel were not germane to facts of this case.
It is further submitted that neither the Appellant not the Governor of Imo State was a party to the proceedings before the lower Court when it made its order of injunction which it enforced in its Ruling of 31/3/2015, relying on IJAGBEMI VS. IGE (2011) ALL FWLR (pt. 560) 1314 at 1330.
In conclusion, the learned Appellant’s Counsel urged us to discountenance the submissions of the learned 2nd Respondent’s Counsel as he failed to address the main issues in the appeal. He finally urged us to allow the appeal and grant the reliefs sought by the Appellant.
RESOLUTION OF THE ISSUES
In resolving these issues, I note that issue 1 of the appellant and issue 2 of the 1st Respondent and the sole issues formulated by the 2nd and 4th – 6th Respondents are similar and I shall treat them together.
Issues 2 and 3 of the appellant are distinct and shall be taken separately.
Issue 1 of the 1st Respondent is not distilled from any ground of appeal. Moreover it is pre-emptive of the suit in the lower Court and therefore premature. I cannot take or consider it in this appeal. Same is therefore struck out. Issue 3 of the 1st Respondent has been treated in the preliminary objection and so will be discountenanced in the main appeal.
With this done, I am left with the issues identified and synchronized above and issues 2 and 3 of the appellant to treat.
Issues 1 of the Appellant, 2 and sole issues of the 2nd and 4th – 6th Respondents respectively question the jurisdiction of the lower Court in making the orders of 31/3/2015 which were based on the injunction granted on 5/11/2013.
Once an issue attacks the jurisdiction of a Court it must be taken and determined first before any other step is taken.
The question of jurisdiction of a Court is a radical and crucial question of competence because if a Court has no jurisdiction to hear and determine a case, the proceedings are and remain a nullity ab initio, no matter how well conducted and brilliantly decided they might be, because a defect in competence is not intrinsic, but extrinsic to the entire process of adjudication. Hence jurisdiction of a Court is considered to be the nerve centre of adjudication, the blood that gives life to an action in a Court of law in the very same way that blood gives life to the human being. See DAPIANLONG & ORS VS. DARIYE & ANOR (2008) 8 NWLR (pt. 1036) 332 (SC). Therefore any proceedings conducted without jurisdiction, no matter how well conducted and how brilliantly decided will amount to a nullity which is nothing but a wasted intellectual judicial investment.
In the instant case, it is on record that on the 5/11/2013 there was an application before the lower Court to join the Appellant to the suit. There was no objection and the application was granted. The Court notes for that day states parties present except 4th – 6th defendants. After listening to the application the learned trial Judge stated as follows:-
Parties present except 4th – 6th defendants,
Chief C.O.C Ezerebo for Claimant/Applicant.
D.O. Madu with N.U. Iwuoha (Mrs) for the 1st defendant.
C.E. Anyanwu for 3rd defendant.
Mr. Madu applies to withdraw his Motion in preliminary objection filed on 29/10/2012. The other Counsel have no objection to the withdrawal.
The Notice of Preliminary objection filed by the 1st defendant through his Counsel on 29/10/2012 is hereby struck out.
Mr. Anyanwu for the 3rd defendant moves his Motion for joinder filed on 22/07/2013. Says it is under Order 13 Rule 4 & 23 of the High Court Rules Imo State. Seeks to have one Chief Albanus Ozuruoha joined as Co-defendant in this suit. Refers to affidavit of 29 paragraphs and the Written address. Moves in terms of the motion.
Mr. Ezerebo for the Claimant has no objection to the application for joinder.
I have read the motion and the affidavit in support of same. I have also read the argument of Counsel in support of the motion and listened to Counsel in oral argument. I am convinced that the applicant has made out a good case for the joinder of the party in this suit.
Accordingly the application of the 3rd defendant to have Chief Albanus Ozuruoha joined as a Co-defendant in this case is hereby granted. The said Chief ALBANUS OZURUOHA is hereby joined and entered as the 7th defendant in this suit.
The Claimant and all other parties shall immediately produce and serve all relevant processes emanating from them and pending in this suit on the said Chief Albanus Ozuruoha after due amendment of the processes in question to reflect the said party as the 7th defendant in the suit.
From the above, it is clear that the Appellant was joined as co-defendant on 5/11/2013. There is no indication that he was in the Court during the proceedings as canvassed by the 1st and 2nd Respondents. All the other parties who were in Court were ordered to amend their processes to reflect the inclusion of the appellant and serve him as the 7th defendant.
The Court noted that ‘Counsel to all the parties agree and urge the Court to make a preservative order in respect of the subject matter to ensure that the status quo in this case is maintained pending the determination of the motion for injunction pending in this suit.’
Curiously the learned trial judge issued an interim injunction thus:-
‘In the interim, all parties in this suit including the 7th defendant are hereby restrained from presenting or parading themselves or any of them as Traditional Ruler of Umukpo Uwaorie Autonomous Community or in any way appropriating the subject matter of this suit pending the hearing and determination of the motion for injunction pending in the suit. In particular, the 4th, 5th and 6th defendants are restrained in the interim from holding out, treating or recognizing any person as the Traditional Ruler of Umukpo Uwaorie Autonomous Community pending the hearing and determination of the motions for interlocutory injunction pending in this suit.’
With due deference to the Hon. Learned trial Judge, the order of injunction restraining the parties in the suit from doing anything to jeopardize the suit including the 7th Defendant (Appellant in this case) was premature. Having joined the 7th defendant, the learned trial judge was in error to have made that order instantu. It would have been better for him to have waited till the return date when all parties including the Appellant (7th defendant then) would be in Court, and upon a motion being heard and granted before making any order which would bind them. The Res (Ezeship) under dispute in this suit, with due respect, is not a perishable item. So why the haste by the Learned Trial Judge?
Now the order setting aside the recognition of the Appellant by the Governor of Imo State on 31/3/2014 took its root from the injunctive order of 5/11/2013, which has adversely affected the Appellant, who as at that time was not yet a party to the suit. It is also clear to me that the Governor of Imo State has not been made a party to this suit up to now.
It has been argued that the fact of the Attorney-General being a party in the suit automatically makes the Governor a party in the suit. Even at that, it is to be noted that as at 5/11/13 when the injunctive order was made, the appellant was yet to be served with the order of Court joining him as a party. But that is not the issue. The issue is the basing of the order of 31/3/2014 on the injunctive order of 5/11/2013.
The second problem is the life span of the injunctive order of 5/11/2013. An interim order usually in law lapses after 7 days unless it is extended by an order of Court. In this case, the order of 5/11/13 lapsed on the 12th November 2013.
Therefore as at 31/3/14, a period of 4 months and 27 days, there was no more valid injunctive order in existence to be enforced against or made binding on any party.
It is trite that an order of Court made against a person not a party before it and without giving that person a hearing is an order made in breach of his constitutional right under Section 36 (1) of the 1999 Constitution of the Federal Republic of Nigeria and is therefore a nullity. See OGBONDA VS. NKANGINIEME (2010) ALL FWLR (pt. 502) 1033 at 1048 paras F – G.
In TANIMOWO VS. ODEWOTE (2008) ALL FWLR (pt. 424) 1513 at 1528-1529 paras F-A it was held thus:-
When a person artificial or otherwise is not made a party in any proceedings in Court, any order of injunction made cannot bind him. In other words, the Court is not competent to hold a party not before it in the cause, bound by an order of injunction in the cause. Therefore, it was not lawful or acceptable for any Court a fortiori trial Court, to hold a person bound by an injunction order who was not brought under the jurisdiction of the Court making the order, until and unless he was made a party to the cause.”
I agree with the Appellant’s Counsel and Counsel to 4th-6th Respondents that the order of injunction made on 5/11/2013 which was enforced against the Appellant on 31st March 2014, was made without jurisdiction. I resolve this issue in favour of the Appellant and 4th-6th Respondents and against the 1st and 2nd Respondents.
ISSUE 2 OF THE APPELLANT’S BRIEF
Having held that the order of the lower Court made against the Appellant on 5/11/2013 was made without jurisdiction and not binding on the Appellant, it goes without saying that this issue is answered in the affirmative. Same is resolved in favour of the Appellant and against the 1st and 2nd Respondents.
ISSUE 3 OF THE APPELLANT
From the record of appeal, the lower Court made an order on 5/11/2013 that the parties should amend their processes and serve same on the 7th defendant (Appellant). It is averred by the Appellant that up to 31/3/2014 when he was accorded recognition, he was not served with the processes. It clearly shows that the 1st, 2nd and 3rd defendants did not comply with the order of the lower Court.
The learned Counsel to the 2nd Respondent has argued that the Appellant was in Court on that 5/11/2013 but in a different case. With respect, I am unable to be persuaded by this argument because if a party comes to Court in respect of a different matter, it cannot be taken that he is aware of the proceedings in a matter in which he is not a party. However, it is proof of service evidenced by an affidavit of service that authenticates the service of a Court process. I agree that the 1st, 2nd and 3rd Respondents were in breach of the order of Court made on 5/11/2013, and therefore cannot enjoy the equitable remedy they seek to enjoy in this case. This issue is therefore resolved in favour of the Appellant and against the 1st and 2nd Respondents.
On the whole this appeal has merit. Same succeeds and is hereby allowed by me.
The order of the lower Court setting aside the recognition of the Appellant as the Traditional Ruler of Umukpo Uwaorie Agwa Autonomous Community is hereby set aside.
The parties shall go back to the lower Court for an expeditious accelerated hearing of the main suit. In so ordering, I am mindful of the fact that the Ezeship is not a perishable item. At the end of trial any party who succeeds who is not the Appellant can be enthroned the Eze of Umukpo Awaorie Agwa Autonomous Community.
Cost of N30,000.00 only is awarded to the Appellant against the 1st and 2nd Respondents.
RITA NOSAKHARE PEMU, J.C.A.: I had the privilege of reading in draft the lead judgment just delivered by my Brother IBRAHIM ALI ANDENYANGTSO JCA. I agree with his reasoning and conclusion. I also set aside the judgment of the Court below, thereby allowing the appeal.
I abide by the consequential order made as to costs.
ITA GEORGE MBABA, J.C.A.: I had the privilege of reading the lead judgment, just delivered by my learned brother, Ibrahim Ali Andenyangtso, JCA and I agree with his reasoning and conclusion, that the appeal is meritorious and should be allowed. I too allow the appeal, and abide by the consequential orders in the lead judgment.
Appearances:
F. A. Onuzulike, Esq. with him, N. A. Igbojubere, Esq.For Appellant(s)
C. O. C. Ezerebo, Esq. with him, C. C. Odeze, Esq. and D. O. Madu, Esq. for the 1st Respondent.
N. I. Amang (Mrs.) for the 2nd Respondent, whose brief was settled by Declan Obioma Madu, Esq.
D. J. Obioma-Amunike (P.S.C. Ministry of Justice Imo State, Owerri) for the 4th-6th Respondents.For Respondent(s)
