LAWRENCE KANU & ANOR v. LAWRENCE OBETA & ORS (2015)

LAWRENCE KANU & ANOR v. LAWRENCE OBETA & ORS

(2015)LCN/7766(CA)

In The Court of Appeal of Nigeria

On Thursday, the 5th day of February, 2015

CA/OW/261/2012

RATIO

PRACTICE AND PROCEDURE: TRANSFER OF A MATTER; WHETHER THE FACT THAT A MATTER HAD BEEN TRANSFERRED TO ANOTHER JUDGE UPON THE STRENGTH OF THE PETITION OF THE RESPONDENTS DOES NOT MEAN THAT THE MATTER AS A WHOLE NO LONGER SUBSISTS IN COURT

The mere fact, as in the instant case that the matter had been transferred to another judge upon the strength of the petition of the Respondents does not mean that the matter as a whole no longer subsists in Court. The option usually open to a person or persons to whom an Order of Court is made and who are dissatisfied or aggrieved have their remedies on Appeal against the said Order or simply apply to have the Order set aside as the case may be. See the case of BABATUNDE vs. OLATUNJI (2000) 2 NWLR (646) 557 on the issue. See also the following cases on the subject.
1. OSHIOMOLE vs. F.G.N. (2005) 1 NWLR (PT. 907) 414
2. ODU vs. JOLAOSO (2005) 16 NWLR (PT. 950) 178
3. GOV. LAGOS STATE vs. OJUKWU (1986) 1 NWLR (PT. 18) 621
4. PLATINUM HABBEB BANK PLC vs. TARI (2008) LPELR- 4855 (CA). per. FREDERICK O. OHO, J.C.A.

COURT: AN ACADEMIC SUIT; WHEN IS A SUIT SAID TO BE ACADEMIC

In the case of ODEDO vs. INEC (2008) LPELR- 2204 SC, the Supreme Court, per NIKI TOBI, JSC defined an Academic Suit in the following words;
“…A suit is said to be academic where it is merely theoretical, makes empty sound, and of no practical utilitarian value to the plaintiff and even if judgment is given in his favour. A suit is academic if it is not related to practical situation of human nature and humanity. An academic issue or question is one which does not require answer or adjudication by a Court of law because it is not necessary to the case on hand. An academic issue or question could be a hypothetical or moot question. An academic issue or question does not relate to the live issues in the litigation because it is spent as it will not enure any right or benefit on the successful party…” per. FREDERICK O. OHO, J.C.A.

COURT: DUTY OF COURT; THE DUTY OF THE COURT TO BE THE ARCHITECT OF ITS OWN INTEGRITY

The Court at all times, must and should be the architect of its own integrity. The Constitution under whose authority the Courts are established can never be seen to be protecting the use of the judicial process to undermine the respect for law and order and the integrity of the Courts. It is for this reason that the Court must be prepared to wield the proverbial “big stick” if only that is the way that it can stamp its authority in support of a regime for zero tolerance for the disregard and disrespect for Court Orders. This Court will be remiss in its duties if it does not come down hard on the situation to drive home its position that while all sorts of unethical, sharp and unconscionable behavior and disregard for Court Orders may be seen as cleverness or “sharpness” in the market place and motor parks and garages, such is not permissible in the legal system of this Country. See the case of GLOBE MOTORS HOLDING LTD vs. HONDA MOTORS CO. LTD (1998) 5 NWLR (PT. 550) 373 AT 381- 382. See also the case of DINGYADI vs. INEC (2010) LPELR -952 (SC) in support. per. FREDERICK O. OHO, J.C.A.

COURT: JURISDICTION; THE CONSEQUENCE OF NOT ASCERTAINING WHO THE PROPER PARTIES WERE IN COURT
The consequence of not ascertaining who the proper parties were in Court means the Court is without jurisdiction to adjudicate. See the case of AMODU vs. AJOBO (1995) 7 NWLR (PT. 406) 170. See also the case of ONWUNALOR vs. OSADEMO (1971) 1 ALL NLR (PT. 1) 14 on this issue. Apart from these, a judgment is adjudged flawed if a vital issue in the case is left unresolved. The ascertainment of the issue of who the proper parties were in this case is a vital issue and the inability of the Lower Court to resolve same, makes his a flawed judgment. The only ‘good’ use to which a flawed judgment can be put is simply to set it aside. See the case of AGU vs. NNADI (2002) 18 NWLR (PT.798) 103. per. FREDERICK O. OHO, J.C.A.

COURT: DUTY OF COURT; THE DUTY OF THE COURT TO ENTERTAIN AND DECIDE ON THE MERIT OF ANY APPLICATION BROUGHT BEFORE IT BY ANY PARTY NOT WITHSTANDING THE PERCEIVED STRENGTH OR WEAKNESS OF SUCH APPLICATION

The mere fact that the parties were agreed that all pending applications be heard alongside the substantive matter was absolutely no excuse for the Lower Court not to have taken a pending application before him. In the case of MOBIL PRODUCING (NIG.) LTD vs. MONOKPO (2003) 18 NWLR (PT. 852) 364 AT 412-413, the Supreme Court, per UWAIFO, JSC stressed this point lucidly as follows;
“…it has been laid down in many decisions that it is the duty of a Court to entertain and decide on the merit of any application brought before it by any party notwithstanding the perceived strength or weakness of such an application…”
In the same token, this Court in the case of ERIOBUNA vs. OBIORAH (1999) 8 NWLR (PT. 616) 642 per TOBI, JCA (As he then was) has this to say on the subject;
“…A Court of law has a legal duty in our adjectival law to hear any process including a motion before it. The process may be downright stupid, unmeritorious or even an abuse of Court process. The Court must hear the party or parties and rule one way or the other. A judge, whether of a Court of law or tribunal has no jurisdiction to come to a conclusion by resorting to his own wisdom outside established due process that a motion cannot be heard because it has no merit. That does not lie in the mouth of a judge in our adversary system of adjudication. The failure to on the part of the learned tribunal to hear the motion … is against the provisions of Section 33(1) of the 1979 Constitution on fair hearing and particularly the natural justice rule of audi alteram partem.” per. FREDERICK O. OHO, J.C.A.

Justices

RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria

PETER OLABISI IGE Justice of The Court of Appeal of Nigeria

FREDERICK O. OHO Justice of The Court of Appeal of Nigeria

Between

1. LAWRENCE KANU
2. CHIEF TONY ONWUTUEBE
(For themselves and as representing members of the Independent Petroleum Marketers Association of Nigeria (IPMAN), Aba Depot)Appellant(s)

AND

1. LAWRENCE OBETA
2. JUDE ONYENAGBARU
3. FRANK OGOKE
4. JUDE IKE
5. BOBBY DICK EBERECHUKWU
6. EMEKA NWOBU
7. JOSEPH NWOSU
8. NNAMDI EMEH
9. CHIDI OGBULAFOR
10. MBONU THEADUS
11. BARR. EMEKA OZURUMBA
12. MRS. ROSE UMEH
13. GLORY NZOTTA
14. CHIEF G. C. NWOKE
15. REGINALD CHUKWUNYERE
16. UGOCHUKWU MBAKWE
17. RICHMOND OSUJI
18. ROSE OKPALA
19. EMEKA OGALABOR
20. PAULINUS OKOYE
21. NNAEMEKA NWANKWO
22. OBIOHA UMUEZURIKE
(For themselves and as representing the Executive Committee of the Independent Petroleum Marketers Association of Nigeria (IPMAN), Aba Depot)

FREDERICK O. OHO, J.C.A. (Delivering The Leading Judgment): There are a number issues slated for determination as far as this Appeal is concerned. Chief of these is whether it is proper for the trial Court not to have ordered pleadings after making findings of fact that there were irreconcilable conflicts, contentious and disputed facts which cannot be resolved by affidavit evidence in an action commenced by Originating Summons. There is also the issue of the trial Court not ruling one way or the other in respect of a pending motion for joinder before delivery of its judgment in the substantive matter. In addition to these, what were the available legal options open to this Court when one of the sides to this action was said to have conducted an election pendent lite in breach of the Court’s Injunctive Orders.
The Appellants in this case were the Claimants at the trial Court, and they commenced the suit on the 15th day of April, 2010 at the High Court of Abia State of Nigeria, Osisioma Judicial Division, vide an Originating Summons dated 1st day of April, 2010 in Suit No. HOS/23/2010, against the Respondents who were the Defendants at the trial Court. By this Originating Summons the Appellants asked the Lower Court for the determination of the following questions:

(1) Whether the Defendants can hold office as Executive Committee members of the Independent Petroleum Marketers Association of Nigeria (IPMAN), Aba Depot beyond their certain tenure of three (3) years from 8/3/2007-7/3/2010 without holding fresh elections as laid down in article xi (viii) and (ix) of the Constitution of the Petroleum Marketers Association of Nigeria (IPMAN) of 14th June, 1997.
(2) Whether the Defendants can elongate or extend their tenure of office as Executive Committee members of the Independent Petroleum Marketers Association of Nigeria (IPMAN) Aba Depot beyond their certain tenure of three (3) years from 8/3/2007 to 7/3/2010 without recourse to fresh elections in accordance with article ix (viii) and (ix) of the Constitution of the Independent Petroleum Marketers Association of Nigeria (IPMAN) of 14th June, 1997.

Subject to the outcome of the determination or construction of the above provisions of the IPMAN Constitution, the Appellants sought for the following reliefs:

1. A Declaration of the Honourable Court that the tenure of office of the Defendants as the executive members of the Independent Petroleum Marketers Association of Nigeria (IPMAN), Aba Depot for a certain terms of three (3) years commencing from the date of their election as such on 8th March, 2007 expired on 7th March, 2010 in accordance with Article XI (VIII) and (IX) of the Constitution of the Independent Petroleum Markets Association of Nigeria (IPMAN) of 14th June, 1997.

2. A Declaration of the Honourable Court that the Defendants as the executive members of the Independent Petroleum Marketers Association of Nigeria (IPMAN), Aba Depot cannot lawfully elongate or extend their certain tenure of office of three (3) years from 8/3/2007 -7/3/2010 without recourse of fresh elections in accordance with Article XI (VIII) and (IX) of the Constitution of the Independent Petroleum Marketers Association of Nigeria (IPMAN) of 14th June, 1997.

3. An Order of injunction restraining the Defendants from unlawfully continuing to carry out the functions and duties as executive committee members of IPMAN, Aba Depot aforesaid and/or continuing to put out themselves as such executive members of IPMAN, Aba Depot aforesaid their tenure of office having expired by the provisions of IPMAN Constitution aforesaid.

On the 15th day of April, 2010, the Appellants also filed a Motion on Notice for an Interim Injunction in which they sought to restrain the Respondents from continuing to act in the Executive Committee of the IPMAN, Aba Depot and holding themselves out as such pending the hearing and determination of the Originating summons. Upon the receipt of the Appellants’ Originating Summons and motion on Notice, the Respondents filed three processes as follows:

1. Notice of Preliminary Objection dated the 26th day of April, 2010 together with a written address in support of Objection.
2. Counter Affidavit in opposition of the grant of Originating Summons filed on the 26th day of April, 2010.
3. Counter Affidavit to Motion of Notice for Interim Injuction.

On the 26th day of April, 2010, the learned Judge of the Lower Court, faced with the two application, one asking for an Injunction and the other seeking to strike out the entire action on grounds of Jurisdiction, decided to take the one of injunction first, granted it and effectively kept the Respondents out of office as Executive members of IPMAN, and in their stead proceeded to appoint an Interim Management Committee, of a few persons for this purpose, pending the hearing and determination of the Notice of preliminary Objection filed in the action.

Aggrieved by the Orders of the Judge of the Lower Court, granting an interim injunction against them without first hearing the Notice of Preliminary Objection challenging the Court’s jurisdiction to entertain the action the Respondents, in reaction filed a Notice of Appeal and a motion for Stay of Execution of the Orders of the Lower Court. While the Notice of Objection was yet to be taken and as well as the motion for Stay of Execution, the Judge of the Lower Court, next proceeded to grant yet another Exparte Order against the Respondents, who on the strength of this, wrote a petition against AKOMAS, J to the NJC. As a result of this petition, AKOMAS, J recused himself from further hearing the matter and consequently did not go ahead to deliver judgment slated for the 15th day of July, 2010. Rather he transferred the matter to the Hon. Chief Judge of Abia State for re-assignment to another Judge. On the strength of this position, the Hon. Chief Judge transferred the matter to Aba Judicial Division for hearing and determination and was subsequently assigned to High Court No. 3 Aba presided over by OTISI, J (as he then was).

While the matter remained in Court, the Respondents of their volition vacated their various offices and on the 6th day of October, 2010 the Chairman IPMAN, Eastern Zone, despite the subsisting Court Order, held a fresh election and a new set of Executives, fifteen (15) in all, were ushered into Office. The Appellants, armed with the impression that this had violated the interim Order of Court which had not been vacated, filed a motion of Notice on the 25th day of November, 2010 seeking an Order of Court to join the fifteen newly elected Executive members as parties to the suit and also a mandatory Order of injunction seeking the setting aside of the election held in defiance of the Orders of Court
As the matter raged on between the parties another faction got onto the scene. They referred to themselves as “Unnamed Claimants” who were in fact said to be the actual Claimants in the substantive action but had merely nominated the named Claimants to represent them in the case. These were the persons sought to be joined as they were ostensibly the same set of persons newly elected into office as Executive Officers of the branch. They resisted the move to be joined as second set of Defendants in the substantive suit before the trial Court on the ground that they cannot be joined in a suit as Defendants in which they are actual Claimants. In addition, both the “Unnamed Claimants” and parties sought to be joined and defendants as Respondents herein raised the issue of jurisdiction of the Court to continue to the entertain the case on the ground that the dispute between the parties has ceased to exist in view of the fact that the Defendants/Respondents had vacated their offices and fresh elections held.

Apparently in order to expedite action in the hearing and determination of this action, the parties all agreed to have the substantive matter heard alongside the pending applications in the matter. The one filed by the Appellants herein on the 25th day of November, 2010 seeking inter alia the mandatory order of injunction, joinder and other related reliefs on the one hand, and the other filed by the Respondents’ challenging the jurisdiction of the Court to continue to entertain the case. On the 16th day of May, 2011 all Counsel in the matter adopted their written addresses in support of the arguments of their respective sides. Judgment in the matter was not delivered until the 16th day of February, 2012, where the trial Judge in a considered judgment held as follows:

“…if the main purpose for which the Claimants came to Court has been achieved out of Court, then the bottom has been knocked off their case. A determination of what ought to have been, if the defendants had not stepped down, would merely be academic. Any other dissensions that still exist for the Claimants, in spite of the stepping down by the defendants on record would have to be articulated in a fresh action. I therefore agree with Chief Obikeze and with Mr. Egweuonwu and hold that there is no enduring live issue for consideration in these proceedings as submitted to the Court for adjudication. Accordingly, I would dismiss this suit, and it is hereby dismissed…”
Dissatisfied with this decision, Appellants appealed to this Court. A total of six Grounds of Appeal was canvassed by the Appellants, which Grounds are reproduced herein without their particulars as follows:

GROUND OF APPEALS
1. The Learned trial Judge at the Court below misdirected himself in law when after finding as a fact that the issues in controversy in this action commenced by originating summons cannot be resolved by affidavit evidence without the benefit of oral evidence and cross examination, yet refused to direct that pleadings be filed and evidence taken but rather contradicted its finding by relying on the same affidavit evidence before him to hold that there is no live issue for consideration in the proceedings.

2. The learned judge at the Court below erred in law when he did not first consider and rule upon the issue of proper parties before it, which was raised by the Appellants’ application for joinder praying that 16 named persons be made parties to this suit which said application was never ruled upon by the Court before delivering judgment in this suit.

3. The learned trial judge at the Court below misdirected himself in law when after refusing to hear the Appellants’ application to be joined in the action, proceeded to rely on the Counter affidavit of the same 3rd, 4th, 5th, 6th, 7th , 8th, 10th, 11th, 12th, 13th, 14th and 15th named persons sought to be joined by the said Appellants application to hold that the Respondents are no longer in office as Executive members of IPMAN Aba Depot and that the averments of the parties yet to be joined as prayed are not controverted.

4. The learned trial judge committed grave error in law when after finding as a fact that the Respondents and their allies conducted elections during the pendency of this action and albeit the interim orders of the Court which ordered among others, the stoppage of the conduct of the election pending the determination of the substantive suit, refused to reverse or set aside the conduct of the said election.

5. The learned at the Court below erred in law when he held as follows; “A return to status quo in this circumstance, would mean that the interim committee appointed by the Court continues to run the affairs of the Association, when the defendants whose act of remaining in office precipitated this action, have stepped down”.

6. The learned judge at the Court below erred in law when he dismissed the Appellants’ suit on the ground that the main purpose for which the Claimants came to Court has been achieved out of Court and that there is no enduring live issue for consideration.

The parties filed and exchanged their Briefs of Arguments. The Appellant’s brief dated 26-10-2012 and filed same date was settled by M. U. UZOMA Esq., wherein he nominated a total of four (4) issues for the Court’s determination thus:

1. Whether the learned trial judge is justified when after making findings of fact that the contentious and disputed facts raised in this suit cannot be resolved by affidavit evidence via originating summons procedure, yet did not order pleadings to be filed having regard to the Supreme Court decision in ADEYELU II vs. AJAGUNGBADE III (2007) 14 NWLR (PT.1053) page 1, but proceeded to dismiss the Appellants’ suit on the ground that the main purpose for which the Appellants came to Court has been achieved out of Court contemptuously and therefore there is no enduring life issue for consideration. Grounds 1, 4 and 7.

2. Whether the learned trial is justified when he did not rule one way or the other in respect of the Appellants’ motion on notice for joinder dated the 23rd November, 2010, filed over a period of one year before the delivery of judgment in this suit. Ground 2.

3. Whether the judgment of the trial Court delivered over a period 270 days after the parties’ final addresses in breach of the provisions of Section 294 of the 1999 Constitution (as amended) is regular. Ground 3.

4. Whether having regard to the subsisting injunctive orders of the Court variously made on the 26th April, 2010 and that made on 8th July, 2010 as well as the findings of the trial Court that there was indeed breach of the said injunctive orders in the conduct of the election, the trial Court ought not to have set aside said election conducted pendent lite and in breach of the said orders of Court and to order a return to status quo. Grounds 5 and 6.

On the part of the Respondents, their Brief of Argument dated 18-11-2013 was filed same date. The Respondents’ brief was settled by Chief Okey Obikeze wherein he nominated two issues for the Court’s determination as follows:

1. Whether the learned trial judge would have justifiably proceeded to order pleadings to be filed, hear and determine all the interlocutory applications in the matter in the face of its findings of fact that there exists no enduring live issue for consideration in the proceedings.

2. Whether the judgment of the trial Court delivered outside 90 days after the parties’ final address occasioned a miscarriage of justice.

At the hearing of this Appeal on the 18th day of November, 2014 the parties adopted their respective briefs of arguments. The Appellants’ Counsel adopted the Appellant’s brief and prayed this Honourable Court to allow the appeal and set aside the judgment of the trial Court while the Respondents’ Counsel adopted Respondents brief and urged the Court to dismiss this appeal.

Learned Respondents’ Counsel is of the view that their issue one is an answer to the issues 1, 2 and 4 of the issues nominated by the Appellants herein for the determination of the Court. I equally share that view but would all the same choose to determine this Appeal on the basis of the issues nominated by the Appellants herein for purposes of comprehensibility and clarity of delivery.

ISSUE ONE
Whether the learned trial judge is justified when after making findings of fact that the contentious and disputed facts raised in this suit cannot be resolved by affidavit evidence via originating summons procedure, yet did not order pleadings to be filed having regard to the Supreme Court decision in ADEYELU II vs. AJAGUNGBADE III (2007) 14 NWLR (PT. 1053) page 1, but proceeded to dismiss the Appellants’ suit on the ground that the main purpose for which the Appellants came to Court has been achieved out of Court contemptuously and therefore there is no enduring life issue for consideration. Grounds 1, 4 and 7.

It was the contention of learned Appellants’ Counsel that the trial Court having made a finding of fact that the issues raised in the substantive matter before it cannot be resolved by affidavit evidence without the benefit of oral evidence in its judgment, that the Court went ahead and contradicted itself by relying on affidavit evidence in arriving at its conclusions that the purpose for which the Appellants’ came to Court had been achieved out of Court and as a result of which he dismissed their Claims. Counsel contended that the proper order to make when a trial Court finds out that the action before it commenced by way of originating summons had been commenced wrongly is to order pleadings to be filed and oral evidence taken and witnesses cross examined and not to dismiss the action and make pronouncements on the merit of such a case before it. Counsel cited the case of ADEYELU II vs. AJAGUNGBADE III (2007) 14 NWLR (PT. 1053) 1 AT 16. It was learned Counsel’s submission on the issue, that rather than comply with the Supreme Court’s pronouncements on the issue, the learned trial Judge not only made pronouncements on the merit of the case before him, but also went ahead and resolved by affidavit evidence the matter before him despite his finding on the issue, thus contradicting himself in the process. Counsel cited the case of YAKUBU vs. CHIEF OF NAVAL STAFF (2004) 1 NWLR (PT. 853) 94 AT 116.

It was learned Counsel’s further contention that the reason given by the trial Court for dismissing the Appellants’ case is that the main reason for which the Appellants had gone before the Court had been achieved by the Respondents stepping aside as Executive members of IPMAN, Aba Depot, even though contemptuously in flagrant breach of the Court’s injunctive Orders. Counsel took the opportunity to inform Court that what was indeed achieved out of Court was the conduct of an IPMAN Aba Depot Election on the 6th day of October, 2010 notwithstanding the subsisting injunctive orders of the Court and which the trial Court was not in any way oblivious of.

Learned Counsel further contended that the trial Court’s assumption that the main reason for which the Claimants had gone to Court in the first place was the removal from office of the Respondents was completely wrong as the Claimants had gone before the Lower Court rather to seek the interpretative jurisdiction of the trial Court in respect of the IPMAN Constitution and as well seek declaratory reliefs for the declaration of the Appellants’ rights thereto. It was learned Counsel’s further contention that a declaratory relief can be made even where a party has no cause of action and cited the cases of IKINE & ORS vs. EDJORODE & ORS (2001) 8 NSCQR 341 AT 377 in support of this contention and A. G. OF KADUNA STATE vs. HASSAN (1985) 2 NWLR (PT. 8) 483 AT 497 on the issue. Arising from this position learned Counsel submitted that against the background of the fact that the reliefs sought by the Appellants as Claimants before the Lower Court, were principally declaratory and as well as interpretative of the IPMAN Constitution, which applicability and tenor remain ambiguous, the main purpose, therefore, for which the Appellants had gone to Court cannot be rightly said to have been achieved out of Court by the mere stepping aside of the Respondents when the interpretation of the Constitution and declaratory reliefs had not been done.
In their response, learned Respondents’ Counsel referred Court to the background facts of this case and contended that the complaint of the Appellants had to do with the Respondents who were elected into IPMAN Aba Depot Executives on the 8th day of March, 2007 for certain tenure of three (3) and who were supposed to have vacated their respective offices on the 7th day of March, 2010 but refused to do so. According to Counsel, the Appellants filed their action before the Lower Court to stop the Respondents from remaining in office and that it is for this reason that they couched their reliefs and issues the way they did before the Lower Court.

Counsel further contended that in their quest to ensure that the Respondents vacated their various offices, the Appellants filed a motion on Notice in addition for interim injunction dated 1st of April, 2010. Counsel told Court that the Respondents, in their reaction to the Originating Summons filed a Notice of Preliminary objection challenging the jurisdiction of Court and that for reasons best known to the trial Judge- AKOMAS, J. He not only refused to hear the motion challenging the jurisdiction of Court but also went ahead and swiftly granted the motion for interim injunction restraining the Respondents from continuing to act as Executive Committee members of IPMAN Aba Depot pending the determination of the Preliminary Objection/Motion on Notice and that a caretaker committee was appointed by the Lower Court in the stead of the Respondents.

It was learned Counsel’s further contention that on their own volition, the Respondents now decided to accede to Appellants’ demands by vacating their respective offices. Thereafter, according to Counsel, the “Claimants” who constitute the membership of IPMAN in conjunction with the IPMAN Chairman, Eastern zone conducted an election on the 6th day of October, 2010 and elected persons who took over from the Respondents. He said that the newly elected Officers who originally were part of the Claimants were sought to be joined as 2nd set of defendants by the named Claimants.

Learned Counsel contended that despite the voluntary vacation of office by the Respondents who had overstayed to the annoyance of the Claimants and for which reason the Claimants had gone to Court in the first place, it was apparent the Claimants were still not satisfied. Subsequently, they filed a motion on Notice for an interlocutory injunction aimed at voiding the election organized by the Chairman IPMAN Easter Zone among a host of reliefs. According to Counsel, all the pending applications in the Court’s file were jointly heard, in what Counsel termed “consolidated”, and the learned trial Court subsequently delivered a well considered judgment.

Learned Counsel disagreed that the Lower Court dismissed the Claimants claims on the ground that it was commenced by Originating Summons instead of Writ of Summons, but rather that the Lower Court had relied on the decision of Court in the case of PDP vs. ABUBAKAR (2007) 3 NWLR (PT. 1022) 515 AT 541, in examining whether or not there were still any live issues in the matter before proceeding one way or the other. Counsel also disagreed that the Lower Court made pronouncements on the matter touching on the merit of the case.

Counsel contended that the determination by Court on the issue of whether there exists any live issues in a matter, is akin to a determination of the issue of jurisdiction of a case. According to Counsel, Courts are established to settle disputes between parties and that where no disputes exists or live issue exists the Court will not be called upon to resolve any disputes and that it for this reason that it has been held on several occasions by the Courts that where there are no live issues in a matter, the Court should decline to exercise jurisdiction as such matters would be termed academic. Counsel cited the cases of JULIUS BERGER (NIG.) LTD vs. FEMI (1993) 5 NWLR (PT.295) 612; BAKER MARINE vs. CHEVRON (2006) CLR 6 (F) SC and a host of other decisions in that light. Counsel urged the Court to resolve this issue in favour of Respondents.

ISSUE TWO
Whether the learned trial is justified when he did not rule one way or the other in respect of the Appellants’ motion on notice for joinder dated the 23rd November, 2010, filed over a period of one year before the delivery of judgment in this suit. Ground 2.

Learned Appellants’ Counsel contended that a Court of law has a duty which is not even discretionary to hear all pending applications and to rule one way or the other in respect of these applications .Counsel cited the case of F.A.A.N. vs. W.E.S. (NIG.) LTD (2011) 8 NWLR (PT.1249) 219 AT 237. Counsel told Court that the Appellants filed an application on the 23rd day of November, 2010 for the joinder of 16 persons who aided in the contravention of the injunctive orders of the Court whose names are as shown ex facie on the motion paper and that the trial Court never ruled one way or the other on the Appellants’ said motion on notice. Counsel submits, in this regard that that amounts to an infringement of the Appellant’s right to fair-hearing. On the strength of this Counsel urged the Court to resolve the issue two in favour of the Appellants.

In their response the Respondents’ argued that the 16th party sought to be joined is the party who all the parties agree usually supervises and organizes elections for the depot in the Eastern zone. That the Orders of AKOMAS J. was not made against him and that indeed, no Court orders were made against the 16th party sought to be joined. Counsel further argued that the trial Court, by the conduct of the said election of the 6th day of October, 2010 did not at anytime find that to be a violation of the Lower Court’s order, more so when no court orders have been shown to have been served on the 16th person sought to be joined. Counsel submitted that an order of Court cannot be made against a person who is not a party to an action and cited the cases of FAWEHINMI vs. NBA (NO.1) (1989) 2 NWLR (PT. 105) 494 SC; UNION BEVERAGES LTD. vs. PEPSICOLA INT’L LTD. (1994) 3 NWLR (PT. 330) 1 SC and a host of other cases. Counsel urged the Court to resolve issue two in favour of the Respondents.

ISSUE THREE
Whether the judgment of the trial Court delivered over a period 270 days after the parties’ final addresses in breach of the provisions of Section 294 of the 1999 Constitution (as amended) is regular. Ground 3.

Learned Appellants’ Counsel drew Court’s attention to Section 294 of the Constitution of Nigeria 1999 (as Amended) which requires the delivery of the decision of Court within ninety (90) days of the conclusion of evidence and final addresses. According to Counsel, the Appellants are not unmindful of the provision of Section 294 (5) of the Constitution which provides that the decision of a Court shall not be set aside by reason of non-compliance except where it has resulted to miscarriage of justice. On the test to determine whether non-compliance has occasioned a miscarriage of justice Counsel referred to the case of ABDULLAHI vs. HEDIMA (2011) 2 NWLR (PT. 1230) 42 AT 61, where the Court held that a delay will be held to have resulted in a miscarriage of justice where it is shown that as a result of that delay, the trial Court’s perception, appreciation and evaluation of evidence before it can be easily seen to have been affected such that the Court lost the impression made on him by the witnesses.

Counsel told Court that in the instant case, parties adopted their written addresses on 16th May, 2011 and that the trial Court delivered its judgment on the 16th February, 2012, a period of over 270 days calculating from the date of adoption of the parties’ written addresses. It was Counsel’s further argument that the delay no doubt affected the trial Court’s perception, appreciation and evaluation of the case presented by the parties. For instance, Counsel said that the failure of trial Court to grant the application for joinder was a good example as no ruling was delivered with respect to the issue of joinder whereas the Court proceeded to rely on the Counter Affidavit of the parties sought to be joined in arriving at its judgment in the case. Indeed Counsel reminded Court that the trial Court reproduced the Counter Affidavit of the parties sought to be joined whereas they were yet to be joined as parties to the suit and relied on same to arrive at the Court’s judgment. It was Counsel’s further submission that the act of the Lower Court’s reproduction of the Counter Affidavit of the persons sought to be joined in his judgment without giving a ruling on the application for joinder is a clear indication of the Court’s loss of perception of the case and that this indeed led to a miscarriage of justice in this suit. Counsel urged the Court to resolve this issue in favour of the Appellants.

In response, the Respondents’ Counsel told Court that the instant case was one fought on affidavit evidence and as a result, the Court had no opportunity of observing the witnesses and forming any impressions or perceptions as the case may be. That the Court could only be rightly accused of a failed perception where trial had been conducted on oral testimonies of parties and witnesses and not when the action is conducted, prosecuted and defended on printed copies of documents. Counsel cited the cases of SHA vs. KWA (2000) 5 SC 178; OJOKOLOBO vs. ALAMU (1998) 9 NWLR (PT. 990) 65 SC; STATE vs. AJIE (2000) 7 SC (PT.1) 24; FAGBENRO vs. AROBADI (2006) 7 NWLR (PT. 978) 174 SC and a host of other cases in support.

It was learned Counsel’s submission that the delay therefore by the trial Court in delivering judgment in the instant case, cannot be said to have affected the trial Court’s perception, appreciation and evaluation of any evidence as he never saw, watched or formed any impressions about witnesses. Counsel told Court of the reliance placed on Section 294(5) of the Constitution of Nigeria 1999. On the use of the Counter Affidavit of the persons sought to be joined, Counsel contended that it was perfectly in order as the trial Court is at liberty to take judicial Notice of its proceedings and records and their contents. Counsel cited the cases of OSAFILE vs. ODI (NO.1) (1990) 3 NWLR (PT. 137) 130; A. G. ANAMBRA STATE vs. EPHRAIM OKEKE & 4 ORS.(2002) 12 NWLR (PT. 782) 575. Counsel urged the Court to resolve this issue in favour of the Respondents.

ISSUE FOUR
Whether having regard to the subsisting injunctive orders of the Court variously made on the 26th April, 2010 and that made on 8th July, 2010 as well as the findings of the trial Court that there was indeed breach of the said injunctive orders in the conduct of the election, the trial Court ought not to have set aside said election conducted pendent lite and in breach of the said orders of Court and to order a return to status quo. Grounds 5 and 6.

Learned Appellants’ Counsel reminded Court of the subsisting Orders made by the trial Court under AKOMAS, J. shortly before the matter was transferred to OTISI, J. (as he then was). The one was an injunctive Order in relation to the subject matter of this suit made on the 26th day of April, 2010. By this Order, the Respondents were restrained in the interim from continuing to act in the Executive Committee of IPMAN, Aba Depot and in their place, members of an interim and management Committee were appointed by the Court, pending the determination of the substantive matter.

The other was another injunctive Order made on the 8th day of July, 2010. By this second Order, the Court had intended to checkmate the activities of the Respondents who were said to have hatched a plan to surreptitiously circumvent the first Order by secretly arranging for an election so as elect themselves or their surrogates in order to frustrate the operation of the Interim Management Committee appointed by the Court. According to Counsel, the trial Court had to make the second Order upon the application of the Appellants and it is consequential for the enforcement of the first Order because of the reprehensible conduct of the Respondents.

According to Counsel the purport of the second Order is a restraining Order on the Respondents, their agent and servants, (excluding the appointed members of the Interim Management Committee) from summoning and holding the Executive Committee meeting of IPMAN, Aba depot for the purposes of holding any election or returning any candidates as members of IPMAN Executive Committee, Aba depot having regards to Court’s Order of 26-4-2010 made by the trial Court. Counsel contended that in spite of these Orders, the Respondents and their surrogates in defiance secretly travelled outside Aba, Abia State, the Headquarters/Secretariat of IPMAN, Aba Depot to Imo State to elect themselves as Executive Committee Members of IPMAN, Aba Depot.

It was learned Counsel’s contention that the Respondents and their surrogates summoning and participating in the said election in defiance of the Court’s Order was admitted by the Respondents at paragraph 26 of their Counter Affidavit in opposition to the Appellants’ motion on Notice for the reversal of the said extra judicial election conducted in disobedience to the said Orders of Court. See page 311 -330 of the records.

Counsel said that the Appellants had to file a motion on notice dated the 23rd day of November, 2010 for the reversal of the said extra judicial election conducted in disobedience to the said Orders and for a return to the Status Quo existing before the extra judicial deliberate disobedience by the Respondents. It was submission of Appellant’s Counsel that it is duty of the Court to protect its integrity by punishing anyone who flouts or encourages the disobedience of Court Orders. Counsel cited the case of ADENIJI-ADELE vs. OGBE (1998) 9 NWLR (PT.567) 650 AT 660 in support.

Arising from the foregoing, it was learned Counsel’s submission that an Order of a restorative mandatory injunction can be invoked by the Court to deal with a recalcitrant and intransigent defendant or party to a suit who decides to take steps in completion of the act of which he is restrained and thereby restoring the parties to the status quo ante bellum. Counsel cited the case of SULU GAMBARI vs. BUKOLA (2004) 1 NWLR (PT. 853) 122 AT 140-141; See also the case ATTORNEY GEN. ANAMBRA STATE vs. OKAFOR (19920 2 NWLR (PT. 224) 396 AT 427.

It was Counsel’s further submission that the Court has jurisdiction to undo what has been done by a party in abuse of the process of the Court in an attempt to overreach and present the Court with a fait accompli or where the defendant attempts to steal a match on the Claimant. This has been described as a disciplinary jurisdiction of the Court. Counsel cited the case of IVORY MERCHANT BANK vs. PARTNERSHIP INV. LTD (1996) 5 NWLR (PT. 448) 362 AT 364. See also the case of AMACHREE vs. ISOKARIARI (1998) 11 NWLR (PT.572) 52.

Counsel contended that despite the Lower Court’s findings of fact that subsisting Orders of Court had been violated that the trial Court refused to Order a return to the Status Quo on the ground that the said injunctive Orders cannot block the path of peace and that in so holding the trial Court refused to rule one way or the other to the Appellants’ motion on notice dated 23rd November, 2010 for mandatory or restorative injunction. Counsel urged Court to resolve the issue four in favour of the Appellants and allow order a return to the status quo, allowing the Interim Committee appointed by the Court to continue to run the Affairs of the Association pending the conduct of a fresh election.

RESOLUTION OF ISSUES
There are a number of facts clearly not in dispute in this case. These are:

1. The parties to this suit both before this Court and the Court below are all members of the Independent Petroleum Marketers Association of Nigeria (IPMAN), Aba Depot, Abia State Nigeria.

2. The Respondents were elected Executive members of the IPMAN Aba Depot on the 8th day of March, 2007 for a term of three (3) years and were supposed to have vacated their respective offices on the 7th day of March, 2010 but refused to do so.

3. That by the Respondents’ own showing, particularly from the contents of the Respondents’ Counsel’s brief of arguments, the controversy which dogged the tussle between the parties was which of the two Constitutions of IPMAN between the 1997 version and the 1983 version as Amended on the 27th day of May, 2009 was the authentic extant Constitution of IPMAN.

4. That while the Respondents favoured the 1983 version which seemed to support their clamour for an elongated tenure of office, the Appellants on the other hand favoured the 1997 version and as a result of which they formulated the questions they did in their Originating summons and asked for the attendant reliefs contained therein.

5. That in addition to the Appellants’ Originating Summons of the 15-4-2010, they filed a motion on Notice wherein they asked for two Orders;
a. Interim Injunction restraining the Respondents from continuing as Executive members of IPMAN Aba Depot, and
b. Appointment of an interim Caretaker Management Committee for the Aba Depot.

6. That upon being served with the Originating Summons of the Appellants and their motion on notice, the Respondent filed a number of processes in reaction, namely;
a. Notice of Preliminary Objection challenging the jurisdiction of Court to entertain the matter.
b. Counter Affidavit filed in opposition of the grant of the Originating Summons.
c. Counter Affidavit filed in opposition of the grant of the Appellants motion on Notice. All these processes were filed on the 26-4-2010.

7. That on the said 26-4-2010, AKOMAS, J sitting at Osisioma Judicial Division granted the Appellants’ motion of the 15-4-2010 for interim injunction effectively removing the Respondents from office as Executive Officers of IPMAN Aba Depot and appointing in their place, an Interim Management Committee.

8. Angered by this decision of AKOMAS, J who rather than hear the motion challenging the Court’s jurisdiction decided for reasons best known to him to hear the motion for interim injunction. The Respondents then resorted to writing a petition to the NJC against AKOMAS, J who in reaction, recused himself from further hearing the matter and it was subsequently assigned to OTISI, J (as he then was) of the Aba Division for hearing and determination.

9. That while the matter was pending before the new Judge, the Respondents who had earlier on been removed from Office by the Orders of AKOMAS, J probably realizing their folly and the path they previously chose in rooting for the 1983 IPMAN Constitution, purportedly and on their own volition decided to “step down” from the same Offices and on the 6th day of October, 2010, purportedly and in conjunction with a newly emerged group, who referred to themselves as “Unnamed Claimants” conducted an election of persons to hold offices as Executives of IPMAN Aba Depot with total disregard to the interim Orders of Court of 26-4-2010.

10. That the Appellant, in reaction brought a motion on notice to Court before the OTISI, J in an effort to arrest the situation, for an interlocutory mandatory injunction voiding and reversing the election conducted by the Respondents against the subsisting Orders of Court which had ordered the contrary. By the said application the Appellants also sought the joinder of a number of 16 persons as second set of Defendants who participated in the elections and got themselves appointed as Executive members of IPMAN Aba Depot.

11. That on the 16-2-2012, after over a period of 270 days, the Lower Court delivered its judgment dismissing the claims of the Appellants on the ground that the Appellants’ claims was spent and had become academic, upon the “stepping down” from Office by the Respondents.

12. That even though the parties were said to be agreed on the Lower Court hearing all outstanding applications before Court along with the substantive matter, the Lower Court nevertheless failed to rule one way or the other in respect of Appellants’ motion for joinder.

13. That even though the trial Court was not oblivious of the subsisting orders of Court and the fact that the Respondents’ action in purportedly “stepping down” and conducting a fresh election for IPMAN Aba Depot was in breach of the Lower Court’s orders made on 26-4-2010 went ahead and delivered its judgment.

Having taken a serious but calm view of the issues at stake between the parties in this action, what seemed in the opinion of this Court to be on trial here is not so much the issues which had torn the parties apart and for which they have found themselves in Court, but the integrity of the judicial system and the respect for the rule of law, in this age of willful disobedience to Court Orders which is another part in the basic disjuncture of the Nigerian society of today expressing itself in the widespread displacement of morality in its functioning. It would be recalled that on the 26-4-2010 the Lower Court made a couple of Orders. The one restraining the Respondents in the interim from continuing to act in the Executive Committee of the IPMAN, Aba Depot and the other, the appointment of an Interim Management Committee to run the activities of IPMAN, Aba Depot until the final determination of the matter.

As if these Orders did not subsist, the Respondents who had been effectively relieved of their positions even though in the interim by the Orders of the 26-4-2010 were said to have purportedly “stepped down” from the offices which they no longer occupied as soon as the Court’s interim orders were made on the 26-4-2010. As if this was not enough effrenation the Respondents got themselves connected with a new group and in direct violation of the Orders of the Court purportedly conducted an election on the 6-10-2010 and by which they purportedly elected persons into office as IPMAN Executives, Aba Depot, in replacement of the Respondents who had “stepped down” in total disregard of the Orders of Court of the 26-4-2010.

That the attitude of the Respondents is unfortunate as it is condemnable is merely to voice the obvious. Court Orders or Judgments are not permitted to be treated with arrogance and levity the way the Respondents have done in this case. The Order or Judgment of a Court of competent jurisdiction subsists unless and until it is set aside and this of course is axiomatic. While it subsists, a person will be treading on perilous path who decides to arrogate to himself the right to ignore a valid and positive Order of Court. It makes no difference that ex facie it appears that the Court that made the Order is without jurisdiction. To therefore disobey an Order of Court under the misguided belief that the said Order is null for any reason whatsoever even if it subsequently turns out to be so in the end would be to court active legal danger with all the unpleasant consequences that this may subsequently attract. The reason of course, is that until the said Order is finally determined to be null and void by another Court’s Order, the Order subsists.

What seem actually to have transpired in the instant case, is that it was when the matter was transferred from the Court of AKOMAS, J that the Respondents like persons under the influence of some delayed drug action woke up to the realities of the situation. In their macabre dance to put themselves at the driver’s seat in the legal tussle between them and the Appellants, decided first to “step down” from Offices which they no longer occupied in the eyes of the law and second, got themselves enmeshed in the scheme of having to associate with a group, up till this moment who called themselves “Unnamed Claimants” and conducted elections into the Offices of the Executive Committee of IPMAN, Aba Depot which already had a Court appointed Interim Management Committee members in place.

This somewhat resort to self help by the Respondents while at the same time violating the Orders of Court is once again unfortunate as it is condemnable. The decision on the part of the Respondents to “step down” after the Lower Court had effectively removed them by its Orders of the 26-4-2010 is nothing but a Machiavellian tactic on their part and this Court gets the unmistakable impression that the Lower Court was used as a mere subterfuge by which the hands of the Claimants on record and Appellants herein were tied while the Respondents and the so called “Unnamed Claimants” helped themselves extra-judicially to a fresh term in Office at the time the purported elections were held.

The proper thing and what was expected of the parties was to have either awaited the outcome of the action in line with the Orders of the Lower Court or better still bring an application before the Lower Court to have the Orders set aside. Either of these they did not do. The Courts are usually not known to encourage conduct which tends to preempt the result of a pending action and would not hesitate in appropriate cases to invoke their disciplinary powers to restore the parties to their status quo. See the cases of REGISTERED TRUSTEES, APOSTOLIC CHURCH vs. OLOWOLENI (1990) 6 NWLR (PT. 158) 514; COMBINED TRADE LTD. vs. A. S. T. B. LTD. (1995) 6 NWLR (PT.404) 709; EZEGBU vs. F. A. T. B. LTD (1992) 1 NWLR (PT.220) 699 on the subject.

Certainly the attitude of the Respondents was clearly intended to circumvent the course of justice and to bring the judicial process and the rule of law into ridicule and contempt. The Respondents’ course of conduct is seen designed to introduce anarchy into the judicial system and it is on this score that the role of the Lower Court cannot entirely be said to be blameless. The subsisting Orders of Court may not have been made specifically against the 16th person sought to be joined and who was credited to have conducted the elections of the said 6-10-2010, but that does not give him the unbridled right to destroy the ‘res’ in the matter. The ‘res’ in this matter undoubtedly is the term of office of the parties as members of IPMAN, Aba Depot which had become a subject of dispute as to which of the two IPMAN Constitutions of 1997 and 1983 was indeed the extant Constitution of IPMAN.

To have, therefore, allowed the said 16th person to have purportedly conducted that election was to have allowed him destroy the ‘res’ and foist upon the parties and the Court a situation of helplessness as it did eventually turn out and for which reasons the dispute between the parties still remains a festering sore and whose malignancy has kept the parties in Court since 2010. This being the case, therefore, can it really then be said that the Claimants’ suit at that stage was truly spent and therefore academic when the Respondents took the laws in their hands, first in purporting to step down and second in conducting an election to fill up the Offices of IPMAN, as if the matter was never already before a Court of competent jurisdiction? In the case of ODEDO vs. INEC (2008) LPELR- 2204 SC, the Supreme Court, per NIKI TOBI, JSC defined an Academic Suit in the following words;
“…A suit is said to be academic where it is merely theoretical, makes empty sound, and of no practical utilitarian value to the plaintiff and even if judgment is given in his favour. A suit is academic if it is not related to practical situation of human nature and humanity. An academic issue or question is one which does not require answer or adjudication by a Court of law because it is not necessary to the case on hand. An academic issue or question could be a hypothetical or moot question. An academic issue or question does not relate to the live issues in the litigation because it is spent as it will not enure any right or benefit on the successful party…”

Even when the Appellants by some last minute efforts sought to arrest the drift at the Lower Court by the filing of a fresh application for a Mandatory Interlocutory Injunction and also for joinder of the so called “unnamed Claimants” as Defendants, the Lower Court for reasons best known to it avoided the once in a life time opportunity of ascertaining who the proper parties were before him, shortly before he delivered his judgment. The mere fact that the parties were agreed that all pending applications be heard alongside the substantive matter was absolutely no excuse for the Lower Court not to have taken a pending application before him. In the case of MOBIL PRODUCING (NIG.) LTD vs. MONOKPO (2003) 18 NWLR (PT. 852) 364 AT 412-413, the Supreme Court, per UWAIFO, JSC stressed this point lucidly as follows;
“…it has been laid down in many decisions that it is the duty of a Court to entertain and decide on the merit of any application brought before it by any party notwithstanding the perceived strength or weakness of such an application…”
In the same token, this Court in the case of ERIOBUNA vs. OBIORAH (1999) 8 NWLR (PT. 616) 642 per TOBI, JCA (As he then was) has this to say on the subject;
“…A Court of law has a legal duty in our adjectival law to hear any process including a motion before it. The process may be downright stupid, unmeritorious or even an abuse of Court process. The Court must hear the party or parties and rule one way or the other. A judge, whether of a Court of law or tribunal has no jurisdiction to come to a conclusion by resorting to his own wisdom outside established due process that a motion cannot be heard because it has no merit. That does not lie in the mouth of a judge in our adversary system of adjudication. The failure to on the part of the learned tribunal to hear the motion … is against the provisions of Section 33(1) of the 1979 Constitution on fair hearing and particularly the natural justice rule of audi alteram partem.”

The essence of an application for joinder is to determine who the proper parties to an action are and to ensure that the decision of Court is binding on them. This of course is to prevent a multiplicity of actions and to prevent two or more Courts of coordinate jurisdictions giving conflicting decisions in one and the same matter. See the case of BANK OF IRELAND vs. UNION BANK (1998) 7 SCNJ 385. See also the case of GREEN vs. GREEN (1987) 3 NWLR (PT. 61) 480 and a host of other cases decided in that light. The Lower Court, therefore in failing to hear and to determine the application for joinder one way or the other could not be said to have resolved all essential questions in the trial process and one of which is the determination of who the proper parties were in the case.

This has become important ever more than before when the ordinary antecedents of the matter are taken into consideration. Here is a matter in which a set of overstayed Executive officers of an Association whose clamour for an elongated term of office had been the sole cause of action between the parties. All of a sudden, they decided to “step down” after the Lower Court had removed them from office. And whilst they stepped down, still in defiance of the orders of Court, got connected with another set of persons who were hitherto, alien to the action, and who referred to themselves as “Unnamed Claimants” got them ‘elected’ into the very offices they only recently stepped down from. That this is not a classical case for joinder, whether successfully established or not tends to beat me hollow. Up and until the Lower Court delivered its judgment after a period of 270 days, who the so called “Unnamed Claimants” were and what or whose interest in the legal quagmire they represented could not be ascertained.
The consequence of not ascertaining who the proper parties were in Court means the Court is without jurisdiction to adjudicate. See the case of AMODU vs. AJOBO (1995) 7 NWLR (PT. 406) 170. See also the case of ONWUNALOR vs. OSADEMO (1971) 1 ALL NLR (PT. 1) 14 on this issue. Apart from these, a judgment is adjudged flawed if a vital issue in the case is left unresolved. The ascertainment of the issue of who the proper parties were in this case is a vital issue and the inability of the Lower Court to resolve same, makes his a flawed judgment. The only ‘good’ use to which a flawed judgment can be put is simply to set it aside. See the case of AGU vs. NNADI (2002) 18 NWLR (PT.798) 103.

On the issue of the Lower Court delivering its judgment some 270 days after the delivery of final addresses by learned Counsel, I am simply not convinced by argument of Appellants’ Counsel on the issue and I hereby find and do hold that no miscarriage of Justice had been successfully established before this Court as arising from the issue and consequently, none occasioned by the delay of the Lower Court in delivery of its judgment.

On the Lower Court’s findings of fact that the action, having been commenced by Originating Summons and yet is characterized by contentious and disputed facts, the proper cause of action open to the Court was not to have dismissed the Appellants’ action as Claimants but to have Ordered the filing of pleadings preparatory for a trial by oral evidence. There are legions of decided authorities on this issue. The Lower Court was therefore wrong to have gone ahead to dismiss Appellants’ claims under the guise of an action that had become spent and academic as the Court decided.

In the final analysis, the Appeal succeeds and parties are to be returned to the state of Affairs which existed before the matter was transferred to OTISI, J. The matter is hereby remitted to the Hon. Chief Judge of Abia State for re-assignment to any Judge of his Choice for hearing and determination.

RAPHAEL CHIKWE AGBO, J.C.A.: I agree with my learned brother Oho JCA that this appeal should be allowed. It was wrong for the Respondents to have conducted elections into the executive committee of IPMAN Aba depot without informing Appellants who were entitled to vote and be voted for and had all the time been contesting in court the occupation of those offices by the Respondents. I abide by the consequential orders made in the lead judgment.

PETER OLABISI IGE, J.C. I had the privilege of reading before now, the judgment just delivered by my learned brother.
My learned brother, OHO, JCA has admirably considered and resolved all the germane issues that arose for determination in this appeal. I have no hesitation in concurring with his reasoning and conclusion therein.

Appearances

M. U. Uzoma Esq.For Appellant

AND

Chief Okey ObikezeFor Responden