HON. MOSES BISUAKEFE & ORS v. HON. (DR.) GODWIN AMANKE
(2011)LCN/4394(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 22nd day of March, 2011
CA/C/78/2010
RATIO
APPEAL AS OF RIGHT: WHETHER WHERE INJUNCTIVE RELIEF WAS GRANTED IN AN EX PARTE MOTION, A PARTY DIRECTLY AFFECTED BY IT CAN APPEAL AS OF RIGHT
…since the injunctive relief was granted in the ex parte motion, the appellants who were directly affected by it can appeal as of right under Section 241(1)(f)(ii) of 1999 Constitution which provides: “241-(1) An appeal shall lie from decisions of the Federal High Court or High Court to the Court of Appeal as of right in the following cases – (a) ………………. (b) ………………. (c) ………………. (d) ………………. (e) ………………. (f) decisions made or given by the Federal High Court or High Court – (ii) where an injunction or the appointment of a receiver is granted or refused.” PER KUMAI BAYANG AKAAHS, J.C.A.
PRELIMINARY OBJECTION: PURPOSE OF FILING A PRELIMINARY OBJECTION
The purpose of filing a preliminary objection is to strike out an appeal as being incompetent. PER KUMAI BAYANG AKAAHS, J.C.A.
RELIEFS: WHEN ARE RELIEFS GRANTED
A court cannot in one breath hold an appeal to be incompetent and strike it out and then proceed in the same breath to grant any reliefs to the respondent. Reliefs are granted when the appeal succeeds or is dismissed. PER KUMAI BAYANG AKAAHS, J.C.A.
NOTICE OF APPEAL :POSITION OF THE LAW WHERE NO ISSUE IS DISTILLED FROM A NOTICE OF APPEAL
I agree that Ground 3 in the Notice of Appeal was abandoned since no issue was distilled from it. Accordingly it is struck out. PER KUMAI BAYANG AKAAHS, J.C.A.
SETTING ASIDE OF WRIT: WHETHER THE WHOLE WRIT CAN BE SET ASIDE, WHERE THERE ARE SEVERAL DEFENDANTS IN AN ACTION AND ONE OR MORE OF THEM HAVE NOT BEEN SERVED WITHIN THE 12 MONTHS PERIOD PRESCRIBED IN ORDER 5 RULE 6
In KOLAWOLE v ALBERTO supra Craig JSC stated the position of the law thus at page 389: “Where there are several Defendants in an action and one or more of them have been served within 12 months period prescribed in Order 5 Rule 6, the whole writ cannot be set aside on grounds that some of the Defendants have not been served within the prescribed period.”
The implication “of this statement is that it is only those Defendants who were not served with the Writ before it expired that are entitled to an order setting it aside. PER KUMAI BAYANG AKAAHS, J.C.A.
JUSTICES
KUMAI BAYANG AKAAHS Justice of The Court of Appeal of Nigeria
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
Between
1 HON. MOSES BISUAKEFE
2. HON. BEATRICE UYIMSE
3. HON. MATTHEW UTURU
4. HON. EMMANUEL ABUGBE
5. HON. DAVID IGALI
6. HON. KILLIAN OKWU
7. HON. THADDEUS IJUAH
8. HON. EMMANUEL AGIANDE
9. OBANLIKU LOCAL GOVERNMENT LEGISLATIVE COUNCIL Appellant(s)
AND
HON. (DR.) GODWIN AMANKE Respondent(s)
KUMAI BAYANG AKAAHS, J.C.A. (Delivering the Leading Judgment): This is an appeal against the exparte order granted by the Cross River State High Court, Obudu on 1st March, 2010 but dated 22nd February, 2010 in Suit No. HD/36/2009. The 2nd 8th Appellants who are members of the Obanliku Legislative Council sent a petition addressed to the 1st Appellant as Leader of the Obanliku Local Government Legislative Council on 2nd November, 2009 praying the latter to request the Chief Judge of Cross River State to constitute a panel of investigation to investigate allegations of misconduct, corruption and abuse of office made against Hon. Dr. Godwin Amanke, the Chairman of Obanliku Local Government Council of Cross River State. The Chief Judge set up the investigative panel of inquiry to look into the allegations and report to the Appellants in accordance with the Local Government Law of Cross River State.
After he had been served with a copy of the allegations the Respondent instituted suit No. HD/36/09 in the Cross River State High Court, Obudu, on 6/11/2009. The panel commenced sitting on 3/2/2010. On 19/2/2010 the Respondent filed a motion ex-parte seeking leave to bring an application to prohibit the panel members from proceeding with their investigation which was granted on 22/2/2010. A motion on notice pursuant to leave granted on 22/2/2010 was served on the panel members on 23/2/2010. Also on the 22/2/2010 the respondent filed a motion ex-parte and motion on notice seeking both interim and interlocutory orders restraining the Appellants from considering any report from the panel. The ex-parte order was granted on 1st March, 2010 but dated the 22nd February, 2010.
It is against this decision that the Appellants filed their Notice of Appeal on 4/3/2010 containing three grounds of appeal. The Appellants formulated a lone issue from the three grounds of appeal as follows:-
Whether the Learned Trial Judge was not in error to have granted an ex-parte order of injunction upon an originating process that had expired and become stale? (Grounds 1 and 2).
The Respondent filed Notice of Preliminary Objection challenging the jurisdiction of this Honourable Court to entertain the appeal. The objection was based on the following grounds:
(1) The Appellants grounds of appeal did not arise from any decision of the trial court made on the 1st day of March 2010 and thus this Honourable court has no jurisdiction to entertain this appeal.
(2) Appellants’ lone issue is formulated from incompetent grounds of appeal and the issue formulated for determination is also incompetent.
(3) Having regards to the particulars of errors in the two grounds of appeal, Appellants ought to have obtained leave of the trial court or this Honorable Court before raising first instance issue for determination in this Honourable Court.
The Respondent prayed for the following reliefs, viz:
(1) AN ORDER striking out the notice and grounds of appeal filed on the 4th day of March, 2010, the issue formulated therein and the argument filed on the 11th day of November, 2010 for reasons that Appellants did not seek appropriate leave before bringing this appeal.
(2) An Order declaring that the Respondent’s impeachment on the 8th day of March, 2010 is null and void and of no effect whatsoever.
(3) AN ORDER re-instating the Respondent to his office as Chairman of Obanliku Local Government Council to complete his tenure which he lost by 9 months and 7 days as Respondent’s impeachment is a nullity.
The Appellants filed a Reply Brief wherein they reproduced grounds 1 and 2 and their particulars and submitted that the grounds are a direct attack on the decision of the lower court as contained in the ruling of 1st March, 2010 granting the respondent’s ex-parte application. It is the contention of the appellants that as the grounds challenge the jurisdiction of the lower court to make the orders, the complaint on jurisdiction can be raised at any time even in the supreme court for the first time. It is argued that the appellants could not have raised the issue of the staleness of the writ of summons in the lower court since the order was granted through an ex-parte motion. It is submitted that the appellants did not need the leave of the court to file the appeal because section 241 (1)(f)(ii) of the 1999 Constitution confers a right of appeal where an injunction is granted or refused. Being an appeal against the injunctive order of the lower court, there was no necessity to seek leave of the lower court before appealing. It is further submitted that the prayers to declare null and void the impeachment of the respondent and reinstate him to his office as chairman of obanliku Local Government to complete his tenure have no place in a preliminary objection.
At pages 53 – 54 of the record is a drawn up order showing that learned counsel for the respondent moved a motion exparte on 22/2/2010 asking for four reliefs which included:
“An order that the Defendants/Respondents, their agents or privies, jointly and severally to be restrained from further sitting in Obanliku Legislative Chambers or elsewhere for the purposes of considering the report arising from the panel of investigation into the allegations of misconduct, corruption and abuse of office against the Plaintiff/Applicant pursuant to the instrument of appointment executed on the 13th day of January, 2010 by the Chief Judge of Cross River State pending the determination of the motion on Notice.”
The prayer was granted and was to lapse on 8th day of March, 2010, the same date the Motion on Notice was fixed for hearing. Curiously enough in the proceedings of 1st March, 2010, the learned trial Judge in his ruling on the application stated at pages 50 – 51 of the record, thus:
“I have read all the contents of the Motion ex-parte including the accompanying affidavits, annexures and written addresses. This matter first came up before me on 22/2/2010 and because I had not read the contents before heard (sic) I adjourned same to 2/3/2010. This morning the learned counsel for the applicant filed a further and better affidavit of urgency stating that the defendants/respondents are on the verge of removing from office the applicant today or tomorrow. Accordingly he applied that the matter be abridged and taken today. I granted the said application and heard same.”
The burden of explaining the existence or non existence of the proceeding s of 22/2/2010 from which the drawn up order was made rests with the respondent’s counsel who derived the benefit from the said order. The appellants could not have procured the order which obviously was to their detriment. Only the respondent’s counsel and the court can explain the anomaly in the date the ex-parte order was moved and granted.
I accept the argument by learned counsel for the Appellants that since the injunctive relief was obtained through an ex-parte application, there is no way the challenge to the jurisdiction of the court could have surfaced’ Furthermore since the injunctive relief was granted in the ex parte motion, the appellants who were directly affected by it can appeal as of right under Section 241(1)(f)(ii) of 1999 Constitution which provides:
“241-(1) An appeal shall lie from decisions of the Federal High Court or High Court to the Court of Appeal as of right in the following cases –
(a) ……………….
(b) ……………….
(c) ……………….
(d) ……………….
(e) ……………….
(f) decisions made or given by the Federal High Court or High Court –
(ii) where an injunction or the appointment of a receiver is granted or refused.”
Grounds 1 and 2 of the Notice of Appeal read:
“Ground 1
Error in Law
The learned High Court Judge erred in law in granting the reliefs/orders contained in the order made on 1/3/2010 but backdated to 22/2/2010 when the lifespan of the originating summons had lapsed for failure to serve same on the defendants.
Particulars of Error
1. By Order B Rule 6 of the High Court Civil Procedure) Rules 2008 the lifespan of an originating process shall be three months.
2. The originating summons was issued on 6/11/09 and it is yet to be served on the defendants.
3. The life of the originating summons expired on 6/2/2010.
Ground 2
The court has no jurisdiction to make interim, interlocutory or substantive orders or at all where there is no writ of summons or other competent originating process duly filed in court.
Particulars of Error
1. The originating summons ceased to exist and/or lost its efficacy as a process on 6/2/2010.
2. There was nothing before the court either on 22/2/2010 or 1/3/2010 to predicate its orders made ex parte.”
I have examined the grounds vis-a-vis the order and hold that the grounds of appeal are competent. Consequently I overrule the preliminary objection. The purpose of filing a preliminary objection is to strike out an appeal as being incompetent. A court cannot in one breath hold an appeal to be incompetent and strike it out and then proceed in the same breath to grant any reliefs to the respondent. Reliefs are granted when the appeal succeeds or is dismissed. The reliefs which the respondent is asking this court to grant on the preliminary objection is incongruous and are hereby refused.
Learned counsel for the respondent did not formulate any issue for determination but responded to the issue raised in the appellants’ brief. I agree that Ground 3 in the Notice of Appeal was abandoned since no issue was distilled from it. Accordingly it is struck out.
After referring to Order 8 Rule 6 of the High Court (Civil Procedure) Rules 2008 which gives originating processes a life span of three months with the option to renew in the event of expiry before service and the motion ex-parte filed by the respondent on 22nd February, 2010 and the application to renew the originating summons on 17/3/2010, learned counsel submitted that as at the 1st day of March, 2010 when the order ex-parte was granted, there was no originating process on which the order was predicated as the originating summons filed on 6/17/2009 expired on 6/2/2010.
Consequent the ex-parte order is lifeless and invalid and relied on KOLAWOLE v ALBERTO (1989) 1 NWLR (pt. 98) 382 at 396 per Craig JSC and KOTOYE v C.B.N. (1989) 1 NWLR (pt. 98) 419. He therefore urged this court to allow the appeal.
Learned counsel for the respondent in reply argued that there was no decision of the trial court to the effect that the originating summons filed on the 6th day of November, 2009 had expired’ He went on to recount that the 7th and 8th Appellants were served with the summons on 9th November, 2009 and submitted, citing KOLAWOLE v ALBERTO supra that where there are several Defendants some of whom are served and others not served, the whole originating process cannot be deemed to have expired and then wholly set aside. He argued that it is immaterial that none of the Defendants were served at all within the period prescribed by the originating process but Defendants served subsequent after the originating process expired, the service and the originating process remain valid unless where the defendants served entered conditional appearance. He said that apart from the 7th and 8th Defendants who were served on 9/11/2009, all the appellants were served by substituted means on 2/3/2010 but none of them entered a conditional appearance and so the originating summons and the service of the said originating process remains valid. He argued that appellants’ appeal must succeed or fail based on the decision reached or appealed against on 1st March, 2010 and the facts or decision reached subsequent after the said date, the 4th day of March, 2010 are not relevant to the proceedings. He therefore urged this court to dismiss the appeal. He further submitted that by virtue of the orders made by the lower court on 1st March, 2010 and dated 22/2/2010 the alleged impeachment of the Respondent is a nullity because the order subsists until set aside.
Learned counsel is on firm ground when he argued that where there are several defendants some of whom are served and others not served, the whole originating process cannot be deemed to have expired and then wholly set aside.
Furthermore, since the Notice of appeal is against the decision delivered on 1/3/2010, the appellants cannot rely on any processes filed after the date of the decision appealed against. Consequently the motion filed by the Respondent on 17/3/2010 cannot be used to influence the appeal.
It is not in doubt that 7th and 8th appellants were served with the Originating Summons on 9/11/2009, three days after the taking out of the Originating Summons on 6/11/2009. It is also not in doubt that by Order 8 Rule 6 of the High Court (Civil Procedure) Rules of Cross River State, 2008, the life span of any writ is three months unless it is renewed before it expires.
In KOLAWOLE v ALBERTO supra Craig JSC stated the position of the law thus at page 389:
“Where there are several Defendants in an action and one or more of them have been served within 12 months period prescribed in Order 5 Rule 6, the whole writ cannot be set aside on grounds that some of the Defendants have not been served within the prescribed period.”
The implication “of this statement is that it is only those Defendants who were not served with the Writ before it expired that are entitled to an order setting it aside.
Learned counsel for the Respondent strenuously argued that if a Defendant was served after the originating process had expired, the service and the originating process remain valid unless the Defendant served entered a conditional appearance.
I am not quite sure that that is the position of the law.
Although a party may waive an irregular service of a process; nonetheless it is not the service that conveys validity on the process e.g. if a writ is to be served outside jurisdiction and the time for such service is stipulated to be 30 days, if the return date of the writ is not up to 30 days, the person served may waive his right to set aside the service of the writ as being irregular but if that writ expired before the service, the party served can either bring an application to strike out the action or appeal against any judgment based on the expired writ and ask that the judgment be nullified. See Section 99 Sheriffs and Civil Process Act. See also SKENCONSULT (NIG) LTD. v GODWIN SECONDY UKEY (1981) 1 SC 6. In the instant case, it was only the 7th and 8th Appellants that were served with the valid writ but 1st – 6th respondents were not served up to 22/2/2010 or 1/3/2010. The writ was issued on 6/11/09 and expired on 6/2/2010. The order made either on 22/2/2010 or 1/3/2010 is therefore not binding on them.
The appeal has merit and it is hereby allowed. The application to renew the originating summons on 17/3/2010 long after the lifespan of the Writ has expired is declared null and .void. Consequently the ex parte order which was predicated on an invalid writ is itself invalid and it is hereby set aside. The request by the respondent to nullify the impeachment and re-instate him to the office as Chairman of Obanliku Local Government Council to complete his tenure is hereby refused, I make no order on costs.
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I have had the opportunity of reading in advance the lead judgment just delivered by my learned brother, Kumai Bayang Akaahs, JCA. I am in full agreement with his lucid reasoning and conclusion reached therein, to tire effect that the appeal has merit and perforce must be allowed. I also therefore allow it and set aside the ex-parte order of the lower court which arose from an invalid cum incompetent writ. I also abide by the consequential orders in the said lead judgment inclusive of the one on costs.
ISAIAH OLUFEMI AKEJU, J.C.A.: My learned brother, Akaahs, JCA gave me the privilege of reading before now the leading judgment just delivered. I agree with the reasoning and conclusion in th6 judgment and I adopt them as mine.
I therefore allow the appeal with no order as to costs.
Appearances
M. M. Ojua with F. Ogrinya and Solomon AbuoFor Appellant
AND
L. A. Izabi-UndieFor Respondent
