CHIEF JOSEPH EJIOFOR V. CHIEF MIKE EMERAH & ANOR (2013)

CHIEF JOSEPH EJIOFOR V. CHIEF MIKE EMERAH & ANOR

(2013)LCN/6463(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 9th day of January, 2013

CA/E/161/2005

Before Their Lordships

ABUBAKAR JEGA ABDUL-KADIRJustice of The Court of Appeal of Nigeria

AYOBODE OLUJIMI LOKULO-SODIPEJustice of The Court of Appeal of Nigeria

ISAIAH OLUFEMI AKEJUJustice of The Court of Appeal of Nigeria

Between

CHIEF JOSEPH EJIOFOR (for himself and as representing the Officers of LUXURY BUS OWNERS ASSOCIATION OF NIGERIA, NWUGO PARK, ONITSHAAppellant(s)

AND

1. CHIEF MIKE EMERAH
2. CHIEF F. G. ONYENWERespondent(s)

RATIO

WHETHER OR NOT THE COURT OF APPEAL CAN DETERMINE AN APPEAL WHICH HAS BEEN DISCHARGED AND STRUCK OUT BY THE FEDERAL HIGH COURT

In view of the foregoing facts as revealed from the printed Record of Appeal I find this appeal as academic exercise since the basis of the appeal is anchored on the Appellant’s motion to strike out the Respondents’ part heard motion of Interlocutory Injunction based on the Order of the Federal High Court granted on 14th December, 2001 in Suit No. FHC/EN/CS/362/2001 which has been discharged and the Suit struck out the appeal has become otiose and therefore incompetent and ought to be struck out. PER ABDUL-KADIR, J.C.A.

ABUBAKAR JEGA ABDUL-KADIR, J.C.A. (Delivering the Leading Judgment): This is an appeal against the order of Interlocutory Injunction made on 20/12/2001 by Obidigwe, J. of the Anambra State High Court, sitting at Onitsha.
The Plaintiffs/Respondents commenced this suit on 3/10/2001 at the Registry, High Court of Anambra State, Onitsha by a Writ of summons to which is attached the Plaintiffs’ Claim. Also filed along with the Claim are a motion ex-parte for an order of interim injunction, an affidavit of urgency, a Motion on Notice for an order of interlocutory injunction, an accompanying affidavit and sever exhibits. Of vital importance is Exhibit 4, which is the minutes of meeting of members of the Association held on 7/8/2001 by which members of the Association entrusted the management of the affairs and interests of the Association and to collect revenue due to the Association at a place/property known as Nwugo park to the plaintiffs. In the Motion on Notice the Plaintiffs/Respondents prayed the court “For an order pursuant to Section 21 High Court Law, Order 17 High Court Rules Anambra State of interlocutory injunction restraining the Defendant, his co-officers of Nwugo Park branch of LUBOAN, their agents, servants, privies or howsoever from in any way of manner interfering with the collection of dues due to the National Body of LUBOAN or otherwise interfering, with the rights of the Plaintiffs to manage the affairs of the National body of LUBOAN at the Nwugo park, Onitsha pending the hearing and determination of the substantive suit.

In reaction to the suit, the defendant/appellant filed a notice of preliminary objection urging the High Court to strike out the substantive suit and the motion on notice for lack of “locus standi” of the plaintiffs/respondents to institute the action and for lack of legal personality and incompetence of the association to hold property (see page 36 of the record). The Notice of Preliminary Objection was argued by counsel to the parties and in a considered ruling delivered on 12/11/2001 the learned trial Judge dismissed the objection.

The learned trial Judge then adjourned the suit to take arguments on the pending motion on notice for interlocutory injunction. After several adjournments during which the counsel for the defendant was absent the plaintiffs, counsel moved the motion on 26/11/2001 and thereafter the Honourable Judge adjourned the suit to 3/12/2001 for the reply of the defence counsel to the motion on notice. On 3/12/2001, the defendant and his counsel were again absent and the learned trial Judge adjourned the case to 20/12/2001 and again ordered that hearing notice be served on the absent defendant and his counsel informing them that the suit was adjourned to 20/12/2001. This was done. (See pages 43 – 47 of the record of appeal).

When the case was called up in the morning of 20/12/2001, the counsel for Defendant/Appellant merely told the court that he filed a motion on notice that same morning and asked that the suit be adjourned. The learned trial Judge refused the application for adjournment and urged defendant’s counsel to reply to the part heard motion. When the counsel for the defendant refused to present argument in reply to the arguments of the plaintiffs’ counsel on the motion on notice the learned trial Judge had no choice than to grant the application for interlocutory injunction and made her order which led to this Appeal.

Dissatisfied with the order of the trial court granting the application for interlocutory injunction, the appellant lodged an appeal to this court vide his Notice and Grounds of Appeal dated 2/1/02 and filed on 3/1/02.
The appeal was heard on the 10/10/12. Counsel to the Appellant Miss N. Aroh informed the court that the Appellant’s brief of argument is dated 4/2/09 and deemed filed on 23/4/09. Counsel adopted the brief and urged the court to allow the appeal. Mr. B. Anyaeji counsel to the Respondents informed the court that the Respondents’ brief of argument is dated 22/5/09 and deemed filed on 23/2/10. Counsel adopted the brief of argument and urged the court to dismiss the appeal.

From the sole ground of appeal the Appellant formulated one issue for determination. The issue is stated thus:-
“Whether the court below was right in failing to first consider and rule on the defendant/appellant’s application dated 19/12/2001 praying the court to dismiss the Plaintiffs/Respondents Motion for interlocutory injunction and do the Plaintiffs have the locus standi to initiate the suit ostensibly on behalf of LUXURY BUS OWNERS ASSOCIATION OF NIGERIA a non-juristic person which the law presumes to have no capacity, powers, right or privileges”

Counsel to the Respondents also formulated one issue for determination and the issue read thus:-
“Whether the learned trial Judge was right to have made the order of interlocutory injunction in the absence of any counter-affidavit and refusal by the Defendant/Appellant to present oral argument in answer to the application”
The Respondents filed a Notice of Preliminary Objection dated 12/8/10 and filed on 13/8/10. They also incorporated the Notice of Preliminary Objection in their brief of argument at pages 4 and 5 of the said brief of argument. At the hearing of the appeal on the 10/10/2012 counsel to the Respondents did not move the Notice of Preliminary Objection as such the Notice of Preliminary Objection is deemed abandoned.

In determining this appeal the issue as formulated by the Appellant would be adopted. In that regard counsel to the appellant stated that the Appellant had filed a Motion on Notice dated 19/12/2001 praying the court below for an order of the Honourable Court striking out the Motion for Interlocutory Injunction filed by the Plaintiffs/Respondents and dated 3/10/01 on the ground that continuing to hear same constitute an abuse of court process in view of the order of Interlocutory Injunction already delivered on 14/12/2001 in Suit No. FHC/EN/CS/362/2001 by the Federal High Court Enugu.
That the Federal High Court Enugu in the said Suit No. FHC/EN/CS/362/2001 had made the following Order on 14/12/01 “That this application has merit and I hereby restrain the defendants/respondents, their agents or privies from disturbing, harassing, inhibiting or in any other manner whatsoever interfering with the plaintiffs/applicants in the management of the Nwugo Park (Flyover) Luxury Bus Terminal Upper Iweka Onitsha pending the determination of the substantive Suit”.
That the 1st plaintiff/respondent in the present suit was the 1st defendant in the Suit at the Federal High Court Enugu, the defendant/appellant in the present action was the 6th plaintiff/applicant in the Suit and the subject matter was the same Nwugo Park.

Counsel to the Appellant states that by the order of the Federal High Court of 14/12/91 the plaintiffs/respondents in the present action and his colleagues who were sued for themselves and on behalf of the Luxury Bus Owners Association had been restrained at the suit of the now Defendant/Appellant from having anything to do with the Nwugo Park and not to disturb the said Defendant/Appellant in the management and control of the same.
Counsel for the Appellant contends that it was to avoid a scenario where two courts of co-ordinate jurisdiction would make two conflicting orders on the same subject matter and between the same parties that the application dated 19/12/01 was made by the Appellant.
Further counsel states that on 20/12/2001 the court below had recorded the following in the proceedings for that day –
Court: “J.B.U. Ndukwe Esq, holds the brief of C. Chuma Oguejiofor Esq. for the defendant says that there is Motion on Notice filed this morning. Instead of replying to the submissions of the plaintiffs’ counsel the learned counsel for the defendant filed this morning a motion to strike out the plaintiffs’ motion for interlocutory injunction which had since been moved and adjourned for reply by the defendant’s counsel”.
That the court below had without entertaining the said application which could be determinative of the motion for interlocutory injunction, and had gone on and granted same.
Counsel submits that no matter how puerile or senseless it appeared, the learned trial Judge ought to have entertained the Appellant’s application and disposed of it even if it be to dismiss or strike it out, the court has to determine it one way or the other. That failure to do that amounted to denial of fair hearing.

Counsel referred to Section 36(1) of the 1999 Constitution of Nigeria and the cases of LONG JOHN V. BLAKK, (1998) 5 SCNJ 68 AT 74; AFRO CONTINENTAL LTD AND ANOR V. CO-OPERATIVE ASSOCIATION OF PROFESSIONAL INC. SC. 771 95; OKEKE OBA V. OKOYE 1994 8 NWLR (Pt.364) 65.
Counsel urged the court to adjudge the order of interlocutory injunction of the court below made on 20/12/01 a nullity and to set the same aside.
Dwelling on the issue of locus standi counsel to the Appellant argues that the issue of “Locus Standi” is a jurisdiction matter which could be raised at any point in time even on appeal. He referred to WAZIRI V. DANDOYI (1999) 4 NWLR (PT.598) 239; A.G., AKWA IBOM STATE V. ESSIEN (2004) 7 NWLR (PT.872) 288; EJIKEME V. AMAECHI (1998) 3 NWLR (PT.542) 456; A.G. FEDERATION V. A.G. ABIA STATE & 35 ORS. (2001) 7 SC (PT.1) 1 AT 66; YESUFU V. GOVERNOR OF EDO STATE (2001) 6 SC 66 AND ORDER 9(1) & (2) HIGH COURT RULES OF ANAMBRA STATE (1988).
Further counsel to the Appellant referred to and reproduced Section 9(1) of the Legal Personality Law Cap 79 Laws of Anambra State court legislation series No. 4 of 1986 to prove that LOBOAN had no locus standi in maintaining the instant Suit.
Finally counsel to the Appellant urges this court to set-aside the order of Injunction of the court below made on 20/12/2001 on grounds of denial of fair-hearing and lack of locus standi and to strike out the Suit.

In response to the submissions of counsel to the Appellant, counsel to the Respondents submits that the learned trial Judge was right to have granted the order of interlocutory injunction made on 20/12/2001. He posited that several adjournments supported by hearing notices were issued by the lower court and duly served on the Appellant through his counsel to react to argument of counsel for the Respondents on the application for interlocutory injunction. He argued that instead of filing a counter-affidavit to the Motion on Notice for interlocutory injunction that was filed earlier than Suit No. FHC/EN/CS/362/2001 the defendant on forum shopping then hurried to the Federal High Court, Enugu that had no jurisdiction to entertain the Suit and obtained an interlocutory order of injunction in FHC/EN/CS/362/2001; NATIONAL LUXURY BUS DRIVERS ASSOCIATION & 9 ORS V. CHIEF MIKE EMERAH & ORS.
Counsel further contends that on 20/12/2001, the Appellant in abuse of process of the court filed a counter motion, a procedure not known to law and an abuse of process for the court to strike out the part heard Motion on Notice for Interlocutory Injunction, reference made to BRIGGS G. BOB MANUEL (1995) NWLR (PT 409) 537 at 552.
Counsel to the Respondents challenged the assertion of counsel to the Appellant in the case of LONG JOHN V. BLACK (supra). He argues that the facts and circumstances in LONG JOHN V. BLACK are different from the facts and circumstances of the present Suit. He holds that the decision in LONG JOHN’S case (supra) does not apply in the instant Suit.

Learned counsel for the Respondents contends that the motion for interlocutory injunction filed by the Respondents on 3/10/01 was to preserve both the res and the litis in contest between the parties and was therefore constructive and ought to be heard first before the motion filed by the Appellant that was destructive and aimed to stop the Honourable Court from preserving the res and or adjudicating the motion of the Plaintiff reference made to A.G. FEDERATION V. AIC LTD. AND ORS (1995) 2 SCNJ 133; NEWSWATCH V. ATTAH (2006) 4 SCNJ.

Further counsel argued that with regard to the order of the Federal High Court in Suit FHC/EN/CS/362/2001 that an order made without jurisdiction is a nullity, he referred to the cases of OKOYE V. NCFC (1991) 6 NWLR (PT 199) 501; NNPC V. TIJANI (2006) 17 NWLR (PT.1007) 2; AJIBOYE V. ISHOLA (2006) 13 NWLR (PT.998) 628; BIL CONSTRUCTION CO. LTD. V. IMANI & SONS LTD. (2006) 12 SCNJ 75; JOHN EZE AND ORS V. MATHIAS OBIEFUNA (1995) 7 SCNJ 75; LAWRENCE NWANKPU & ANR. V. DENNIS EWULU & ORS. (1995) 7 SCNJ 197.
Counsel to the Respondents contends that even it is argued that the motion filed on 20/12/2001 by the Appellant at the High Court amounted to a defence Suit No. FHC/EN/CS/362/2001 was forum shopping and that the order of injunction of the Federal High Court as well as the motion filed on 20/12/01 amounted to abuse of judicial process reference made to ASHLEY AGWASIN AND ORS V. OJICHIE & ORS (2004) 4 SCNJ 199. That the court has a duty to prevent abuse of its process. Counsel referred to ANYEABUCHI V. INEC (2002) 8 NWLR (PT 769) 417.

On the Legal Personality of LUBOAN and the locus standi of the Plaintiffs/Respondents to institute this action, counsel to the Respondents contends that the learned trial Judge was right in his ruling on the locus standi of the Plaintiffs to institute this Suit. That the Plaintiffs did not sue in the name of the Association but in their own name based on the interference with the trust on them. That paragraphs 14 and 15 of the claim and exhibit 4 clearly give the Plaintiffs the locus standi to institute this action. Counsel argues that locus standi in this suit is derived by the voluntary agreement whereby members of the Association unanimously entrusted the Plaintiffs to run her affairs at Nwugo Park; reference made to OWODUNNI V. RTCCC (2000) FWLR (PT 9) 1455; A.G. KADUNA STATE V. HASSAN (1995) 2 NWLR (PT.8) 483. Further counsel to Respondents contends that the fact that LUBOAN is not incorporated does not mean that it does not exist in fact he referred to REGISTERED TRUSTEES OF IGBO COMMUNITY OYO STATE V. CYRIL AKABUEZE & 2 ORS. (2001) 1 CHR 1; CHIEF GANI FAWEHINMI V. NBA NO. 2 (1989) NWLR (PT.105) 558; ANYAEBUNAM V. OSAKA (2000) 3 SCNJ.
In conclusion counsel to the Respondents urged the court to dismiss this appeal.
The main contention of the Appellant in this appeal is that the Appellant had filed a Motion on Notice dated 19/12/2001 praying for the court below for an order of the Honourable court striking out the motion for interlocutory injunction filed by the Respondents and dated 3/10/2001 on the ground that continuing to hear same constitute an abuse of court process in view of the order of interlocutory injunction already delivered on 14/12/2001 in Suit No. FHC/EN/CS/362/2001 by the Federal High Court Enugu.
The Federal High Court Enugu in the said suit No. FHC/EN/CS/362/2001 had made the following order on the 14/12/2001.
“That this application has merit and I hereby restrain the defendants/respondents, their agents or privies from disturbing, harassing, inhibiting or in any other manner whatsoever interfering with the Plaintiffs/Applicants in the management of the Nwugo Park (Fly over) Luxury Bus Terminal Upper Iweka Onitsha pending the determination of the substantive Suit”.

Instructively, the 1st Plaintiff/Respondent in the present Suit was the 1st Defendant in the Suit at the Federal High Court Enugu the Defendant/Appellant in the present action was the 6th Plaintiff/Applicant in the Suit and the subject matter of both actions was the same Nwugo Park.
By the order of the Federal High Court of 14/12/2001, the Plaintiff/Respondents in the present action and their colleagues who were suit in themselves and on behalf of the Luxury Bus Owners Association had been restrained at the Suit of the now Defendant/Appellant from having anything to do with the Nwugo Park and not to disturb in the management and control of same.
On the strength of the Federal High Court order of the 14/12/2001 Appellant filed a motion on the 20/2/2001 seeking to strike out the Plaintiffs/Respondents motion for interlocutory injunction which is part heard and had been adjourned for reply by the Appellant’s counsel on 20/12/2001.
Counsel for the Appellant sought for an adjournment to move his motion for the striking out of the Respondents part heard motion which is slated for reply. The trial court refused the adjournment and directed the counsel to reply to the part heard motion which has been adjourned for reply. When counsel to the Appellant refused to present argument in reply to the Respondents’ argument to the part heard motion, the trial court proceeded to grant the application for interlocutory injunction and made the order which led to this appeal.
The complaint of the Appellant is that by the refusal of the trial court to hear his Motion on Notice to strike out the Respondents’ part heard Motion which has been already adjourned for reply amounted to breach of fair hearing and violated the provisions of Section 36(1) of the 1999 Constitution (as amended). The other complaint of the Appellant is that the Plaintiffs have no “Locus Standi” to institute the action as such the Suit becomes incompetent as the court lacked jurisdiction to entertain it.

In the instant appeal the Appellant filed his motion dated 19/12/2001 to strike out the Respondents’ part heard motion for interlocutory injunction on the strength of the order of the Federal High Court Enugu granted on the 14/12/2001 and on which he claimed that he was denied his right of fair hearing by the refusal of the trial court to hear his motion before the determination of the motion for interlocutory injunction filed by the Respondents which gave rise to this appeal.

By the Additional Record of Appeal before the court pages 6 to 16 is the Ruling of the Federal High Court in Suit No. FHC/EN/CS/362/2001 delivered on 15th August, 2002. In its considered Ruling the Federal High Court struck out the Suit and discharged the interlocutory Order of Injunction on the ground that it has no jurisdiction to hear and determine the case. The striking out of the Suit No. FHC/EN/CS/362/2001 and the discharge of the Interlocutory Order granted on 14/12/2001 which is the basis of the Appellant’s Motion on Notice for Interlocutory Injunction dated 19/12/2001 has rendered the Appellant’s complaint of denial of fair hearing and the resultant appeal an academic exercise. On the second complaint of the Appellant, that is the Plaintiffs have no “Locus Standi” to institute the action. This complaint has been dealt with in a Ruling delivered on 12th November, 2001 which is a separate proceeding from the proceedings in the instant appeal and which has not being appealed and cannot be constituted in the instant as it does not emanate from the order being appealed. The Ruling of 12th November, 2001 is at pages 1 – 5 of the Additional Record of Appeal.

AYOBODE O. LOKULO-SODIPE, J.C.A.: I have had the privilege of reading the lead Judgment prepared by my learned brother, ABUBAKAR JEGA ABDUL-KADIR, JCA. I am in complete agreement with his lordship’s reasoning and conclusions. I have nothing to add.

Accordingly, I agree that the appeal should be struck out and I too, hereby strike it out. I also abide by the order made in the lead judgment relating to costs.

ISAIAH OLUFEMI AKEJU, J.C.A.: My learned brother, ABUBAKAR JEGA ABDUI-KADIR JCA gave me the opportunity of reading before now the judgment just delivered. I agree with his lordship and the conclusion that the appeal has become incompetent. I therefore strike out the appeal and abide by the costs awarded against the appellant.

Appearances

Chief C.C. OguejioforFor Appellant

AND

Mr. B. AnyaejiFor Respondent