NDIONYENMA H. NWANKWO & ANOR v. MRS ANN C. ONONOEZE-MADU & ORS
In The Court of Appeal of Nigeria
On Tuesday, the 2nd day of November, 2004
VICTOR AIMEPOMO OYELEYE OMAGE Justice of The Court of Appeal of Nigeria
PIUS OLAYIWOLA ADEREMI Justice of The Court of Appeal of Nigeria
MONICA BOLADA DONGBA-MENSEM Justice of The Court of Appeal of Nigeria
- NDIONYENMA H. NWANKWO
2. CHIDI B. NWORKA Appellant(s)
- MRS ANN C. ONONOEZE-MADU
2. THE GOVERNOR OF IMO STATE
3. ATTORNEY-GENERAL OF IMO STATE Respondent(s)
ADEREMI, J.C.A. (Delivering the Leading Ruling): The application dated 3/9/2004 under consideration here initially carried two prayers viz:
“(1) an order setting aside the appointment and sweating-in of the 1st respondent as a High Court Judge of the Imo State judiciary on the 3rd of August, 2004.
(2) an order of interlocutory injunction restraining the 1st respondent from exercising any powers and/or functions whether official or social, of a High Court Judge of the Imo State judiciary, pending the determination of the motion on notice filed by the appellants on May 26th, 2004.
The application is supported by a 12 paragraph affidavit and a further affidavit of six paragraphs. When this application came before us on the 23rd of September, 2004 Mr. Nworka the 2nd appellant/applicant, a legal practitioner, who appeared in person, before moving the said application, sought and obtained the leave of this court to withdraw the second leg of the prayers as set out supra. In moving the application as it relates to the first leg of the prayers, the learned counsel relied on the affidavit in support and the 6-paragraph filed on 23/9/04; he posed the question as to whether having regard to the pendency of a motion .seeking to restrain the appointment, swearing-in of the 1st respondent; whether therefore, the appointment and swearing-in of the 1st respondent is legal? It was submitting that the act of 1st respondent in presenting herself (1st respondent) to be sworn-in and the appointment and swearing-in during the pendency of the suit and the motion was illegal; he relied on (1) Praying Band of C & S v. Udokwu (1991) 3 NWLR (Pt. 182) 716 and (2) First African Trust Bank v. Ezegbu (1993) 6 NWLR (Pt.297) 1; 6 SC. (Pt.1) 122. The act of the respondents’ he further submitted, is reprehensible and they should not be allowed to get away with it.
No party, he further argued, has the right to determine whether an application should be granted.
Mr. Dike, learned counsel for the 1st respondent, in urging this court to dismiss the application he further submitted that same is in competent; the notice of appeal having not accompanied the application. He referred to the printed evidence of both sides and submitted that both parties are ad idem that the substantive suit in this case has been struck out by the court below. The present application is therefore an abuse of court process, he further argued.
The appeal against the order of striking out of the substantive suit was founded on the issue of locus standi; the present application has no bearing on the appeal. The order prayed for through the present application was never before the court below. He urged that the application be dismissed.
Mrs. Chikeka, Director of Civil Litigation, Imo State, learned counsel for the 2nd and 3rd respondents while associating herself with the submission, of Mr. Dike of counsel for the 1st respondent, relied on the 13 paragraph counter-affidavit and submitted that there is no res to preserve in this case since the substantive suit has been struck-out. It was her further submission that there has not been any appeal before this court in relation to prayer I of the application. In conclusion, she urged that the application be dismissed.
On point of law only Mr. Nworka urged the court, in law, not to determine at interlocutory stage, the substantive matter.
To appreciate the salient and fundamental issue involved in this application, I felt compelled to set out the reliefs claimed by the applicants in the court below which constitute the substratum of the entire matter; they are as follows:
“(1) Declaration that appointing 1st defendant as a Judge of the High Court of Imo State will infringe on the constitutionally guaranteed fundamental rights of the plaintiffs to practice (sic) their profession in Imo State of Nigeria.
(2) Declaration that the 1st defendant is not a fit and proper person to be appointed as a Judge of the High Court of Imo State by the 2nd defendant.
(3) Perpetual injunction restraining the 1st defendant from presenting herself to the 2nd defendant for appointment G and/or swearing-in as a Judge of the High Court of Imo State.
(4) Perpetual injunction restraining the 2nd defendant from appointing and/or swearing-in the 1st defendant as a Judge of the High Court of Imo State.
Going by the counter-affidavit of the 1st respondent the deposition of which remains unchallenged the plaintiffs/appellants/applicants filed their statement of claim. Upon the service of the processes of the plaintiffs/appellants/applicants on the defendants/respondents, the latter filed a preliminary objection challenging, inter alia, the locus standi of the applicants to bring the suit. Arguments of counsel were taken by the learned trial Judge and in a considered ruling delivered on the 15th of March 2004, the learned trial Judge upheld the objection thereby declaring that the applicants had no locus standi to bring the suit and consequently struck same out. Being dissatisfied with the ruling of 15th March 2004, the plaintiffs/applicants have since appealed to this court. The appeal is yet to be heard in this court.
What does “locus standi” denote? In law, locus standi is the legal capacity with which a plaintiff is endowed to institute proceedings in a court of law. It is used interchangeably with terms like “standing” or “title to sue.” It is the right of a party to appear and be heard on the question before any court or tribunal. Indeed, it is an aspect of justice ability the fundamental aspect of which focuses on the party seeking to get his complaint before the court and not on issues which the plaintiff wishes to have adjudicated upon. And where a party’s standing to institute an action is in issue in a case, the question obviously, is whether that person whose standing is in issue is a proper party to request an adjudication of a particular issue and not whether the issue itself is justiceable. See Oloriode & Ors. v. Oyebi & Ors. (1984) 1 SCNLR 390; (1984) 5 SC 1. Where a party lacks locus standi to sue, his case must be struck out as being incompetent so said the Supreme Court in (1) Oloriode & Ors. supra and (2) Owudunni v. Registered Trustees of C.C.C. (2000) 10 NWLR (Pt.675) 315; (2000) 6 SC (Pt.3) 60. What we now have before us for adjudication is an application on notice praying for an order of interlocutory injunction. On the hearing of an application for an interlocutory injunction, the first thing that the applicant has to show is that there is a serious question to be tried. In other words, there must be a substantive suit in place. See Oyeyemi v. lrewole Local Govt. Ikire (1993) 1 NWLR (Pt.270) 462. I have said, supra. that the substantive suit brought by the plaintiffs/appellants/applicants before that court has been struck-out by the court below on the ground of lack of locus standi. The success of the objection based on locus standi is a challenge to the jurisdiction of the court below to entertain the suit. It is a well established principle of law that a court has no power to make an order in respect of a case in which its jurisdiction to try the case has been challenged. If the court holds that it has no jurisdiction, as it has been held in the instant case, the substratum of the case is knocked off and as said, it must be struck out again. See Okoye & Ors. V.N. C. & F. CO. Ltd & Ors. (1991) 6 NWLR (Pt.199) 501.
An order of injunction does not exist in vaccum. It must always be related to an existing substantive case. A judgment of a court of competent jurisdiction must remain in force until it is set aside by an appellate court. It must be obeyed. Such an order must not be ignored.
Going by what I have being saying, an applicant whose substantive suit has been struck out on the ground of locus standi is not allowed in law, to take any steps in realisation of the reliefs sought in that substantive suit until he has cleared the issue of legal capacity to sue. The present application before us is in pursuit of the reliefs already struck-out. Any process, including an application for an order of interlocutory injunction, brought pursuant to such reliefs in the absence of obtaining the order of the appellate court to reverse the order of striking out the substantive suit is an abuse of court process. It tantamounts to use of its power malafide. See Okorodudu v. Okoromadu (1977) 3 S.C. 21. The Supreme Court discussing the concept “Abuse of court” reasoned in Vaswani Trading Co. v. Savalakh & Co. (1972) 1 All NLR (Pt. 2) 483 at page 488 thus:
“Speaking of the attitude of the courts to an abuse of process, Lord Blackburn said in The Metropolitan Bank Ltd. etc. v. Pooley (1885) 10 APPC as. 210 at page 220.
But from early time, (I rather think, though I have not looked at it enough to say, from the earliest times) the court had inherently in its power the right to see that its process was not abused by a proceeding without reasonable grounds, so as to be vexatious and harassing – the court had the right to protect itself against such an abuse (see also Logan v. The Bank of Scotland No.2 (1906) 1 K.B. 141.”
The totality of all I have being saying is that, for now, the jurisdiction of the court below to entertain the suit has been successfully challenged. Jurisdiction is a vital point which gives life or impetus to a suit. In fact, the question whether a court has jurisdiction to entertain a suit or not touches on its competence. Once it has been successfully raised, any court, including an appellate court, particularly on the issue of locus standi must not do anything on the actualisation of the reliefs sought in the court below which have been struck out until the order of striking out is properly reversed in law.
It is for all of the above that I say without any fear or equivocation that the application dated 1st of September, 2004 but filed on the 3rd of September, 2004 is grossly an abuse of court process. It has no leg to stand in law. It must be dismissed and I accordingly dismiss it with costs assessed and awarded in favour of the 1st respondent at N2,500.00 and the 2nd and 3rd respondents at N2,500.00 jointly.
OMAGE, J.C.A.: I have read with delight the lead ruling of my learned brother, Aderemi, JCA, in this application for –
“an injunction to restrain the 1st respondent from exercising any powers and or function whether official or social of a High Court Judge of Imo State Judiciary, pending the determination of the motion on notice filed on May 26th, 2004”
I agree with the lead ruling and adopt same as my own.
I wish however to add my own opinion to the already explicit and comprehensive ruling of the Hon. Justice Aderemi, JCA. Before I proceed with this in considering the prayer as it stands above and because a prayer for an injunction is made pending the determination of a matter in court; in this case the applicant wrote “pending the determination of the motion on notice filed on 26th May 2004”. I make the following observations:
It is a matter of fact that on 16th day of September, 2004, the motion filed on 26th May, 2004 was heard and determined by this court and the application was dismissed, as it constituted an abuse of the process of the court. The materiality of this is that the prayer of the applicant to restrain the 1st respondent is not made pending the determination of any issue or motion pending before the court.
As is contained in the lead ruling, there is no pending appeal on which the prayer is founded; it is therefore not interlocutory of any matter pending. The prayer is incompetent. It is incompetent because an interlocutory prayer for an injunction must be made pending the determination of a substantive issue. See Ladoke v. Olobayo (1992) 8 NWLR (Pt 261) 605. There is no specific relief sought by the applicant in this court on which an interlocutory injunction may be made. See Praying Band Sacred Society of Cherubim and Seraphim Church & 3 Ors v. M. E. Udokwu (1991) 3 NWLR (Pt.l82) 716 per Kutigi, JCA (as he then was) He is now JSC.
Ordinarily therefore, the prayer of the applicant deserves no detailed consideration and should have been dismissed. Prayer one on the motion paper, which has now been withdrawn by the applicant, read thus:
“An order to set aside the appointment and swearing in of the 1st respondent as a High Court Judge of Imo State Judiciary on 3rd August 2004. ”
I do not wish here to consider the prayer contained therein, but I cannot ignore a vital issue of fact contained in the prayer, that is, the 1st respondent was sworn in as a Judge on 3rd August, 2004. The information is relevant to the prayer contained in prayer 2 which was argued or which the applicant made submissions. The prayer is to restrain the 1st respondent from exercising any powers and/or function whether officially or socially as a High Court Judge of Imo State Judiciary.” Now if the contents of the now abandoned prayer one is correct that the 1st respondent has been sworn in then the prayer to restrain the 1st respondent from doing a completed act is wrong in law; and one on which the court has no jurisdiction. An order for an injunction is made pending the determination of an issue pending in court in order to preserve the status quo awaiting the determination of the issue. See (i) Akibu v. Oduntan (1991) 2 NWLR (Pt 171) 1 S.C. also (ii) Ojukwu v. Lagos State Government (1986) 3 NWLR (Pt. 26) 39 CA; and (iii) Obeya Memorial Specialist v. AG Federation (1987) 3 NWLR (Pt.60) 325 SC.
In a proper case for consideration for an injunction two vital issues must be considered (1) Balance of convenience (2) The existence of res to be considered and stayed. Clearly there is no balance of convenience because one of the parties; the applicant has failed to disclose the whole facts to the courts and intends therefore to mislead the court. However of greater importance is the issue as to whether a res exists to be preserved. In Hubbard & Ors v. Vosper & Ors (1972) Q B.D p. 84. In considering the need to maintain a status quo pending the determination of a pending matter the great Lord Denning observed that an order to restrain the doing of an act does not avail a completed act. An injunction does not exist to restrain a completed act. In this country in the case of Holts Nig. Ltd. v. Holts African Workers Union (1963) 2 SCNLR 383, (1963) 1 All
NLR p. 379, the same rule was effectively adopted that when the act has been completed the court cannot and does not make a habit of restraining it; a different order for relief exists for that.
In the instant application, if the 1st respondent has been sworn in as a Judge of Imo State High Court on 2nd August, 2004, it is idle on 3/9104; for the applicant to seek to restrain the 1st respondent from performing any functions relating to a completed act. Assuming therefore that the application is properly founded, the above is the answer to it.
In any case the application is incompetent, misconceived and it is dismissed. I abide by consequential order for cost in the lead ruling.
DONGBAN-MENSEM J.C.A.: I have read the draft of the ruling just pronounced by my learned brother Aderemi, JCA. I agree with the reasoning and conclusions arrived at.
However bad a judicial decision seems to be it remains in force until reversed by due processes. The suit No. HOW/35/2004: Ndionyenma H. Nwankwo & Anor v. Ann C. Ononoze Madu was taken out in the High Court of Imo State seeking a declaration inter alia, that the 1st respondent is not a fit and proper person to be appointed and or sworn in as Judge of the High Court of Imo State but was struck out by the trial court for want of competence.
An appeal has been filed before this court challenging the decision of the trial court which still subsists. The scenario at hand is that the appellants, per the decision of the said trial court, have no locus standi to take any further steps in the same matter regarding the same subject matter until the state of their locus is determined.
Until then, the applicants now before this court are mere busybodies, meddlesome interlopers.
They have come before this court without a foundation seeking to be roofed. Alas, such a roof cannot stand as there is no foundation let alone a building upon which to place the roof. Until the decision of the trial court is reversed and the matter remitted to the court for trial the applicants can do nothing, aside appealing as they have rightly done.
It would produce an absurd result to hold otherwise.
Further, the applicants have not placed before us, any order of the trial court which it contends is erroneous to be reviewed by this court. Thus “an order setting aside the appointment and swearing in of the 1st respondent as a High Court Judge of the Imo State Judiciary on the 3rd of August, 2004”, to be made by this court would amount to determining on appeal, the suit No. HOW/35/2004 (supra) which has been struck out by the High Cout1 at its infancy for lack of legal capacity. In other words, the merit of the said suit is yet to be determined by the trial cout1, should this Court so direct in the appeal against the decision. Such a decision would open the judicial process to ridicule, it would be an abuse of court process and it would render the appellate principles irrelevant in litigation.
The judiciary must insulate and protect itself and the society from the impatience of litigants who seek judicial orders at all cost.
The rule of law must be upheld at all times and only when proper procedures are observed and upheld can the rule of law subsist.
I too hereby dismiss this appeal as incompetent.
Chidi B. Nworka, Esq.For Appellant
- C. Dike – for the 1st Respondent
T. E. Chikeka, ([Mrs.] Director of Civil Litigation, Imo State Ministry of Justice) -for the 3rd RespondentFor Respondent