NZE (DR) C.O. MADUAKO V. FEDERAL REPUBLIC OF NIGERIA
(2011)LCN/4263(CA)
In The Court of Appeal of Nigeria
On Thursday, the 27th day of January, 2011
CA/A/211/C/M/2008
RATIO
DUTY OF THE COURT: WHETHER THE COURT MUST REFRAIN FROM MAKING PRONOUNCEMENT ON THE MAIN ISSUE IN CONTENTION BETWEEN THE PARTIES IN THE SUBSTANTIVE MATTER WHEN RULING ON AN INTERLOCUTORY APPLICATION
This Court in the case of ESTISIONE H. NIG. LTD. V. OSUN STATE GOVERNMENT (2006) ALL FWLR (30) 1131 at 1146 had restated the attitude and practice of the courts in such situations when it held that:- “The court must refrain from making pronouncements on issues or findings of facts on which the ultimate decision in the substantive appeal may depend at an interlocutory stage.” Similarly the Supreme Court had in the case of OKOTIE-EBOH v. MANAGER (2004) 11-12 SC. 174 had cautioned the courts in such situations at page 177 when it held that in a ruling on an interlocutory application, the court should avoid making any observation that might appear to prejudge the main issue in contention between the parties in the substantive matter. See also: OJUKWU v. GOVERNMENT OF LAGOS STATE (1986) 3 NWLR (26) 39. OGUNRO v. DUKE (2006) ALL FWLR (308) 1287 at 1298. IDEH v. GODBLESS MOTORS (1991) 4 NWLR (188) 699. PER MOHAMMED LAWAL GARBA, J.C.A.
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
REGINA OBIAGELI NWODO Justice of The Court of Appeal of Nigeria
Between
NZE (DR) C.O. MADUAKO Appellant(s)
AND
FEDERAL REPUBLIC OF NIGERIA Respondent(s)
MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Lead Ruling): This application filed on the 27/3/09 prays for orders from the Court as follows:-
“(1) Of interlocutory injunction restraining Okey Uzoho Esq, from appearing as a Counsel in this appeal pending the determination by this Court of his status as Counsel in charge No. FCT/HC/CR/18/2006.
(2) Striking out the undated motion No. CA/A/216C/M/08 filed by Okey Uzoho Esq. on the ground that the motion is incompetent and an abuse of process of this Court,
(3) And for such order of further orders as this Honourable Court may deem fit to give in the circumstance.”
It is supported by a 45 paragraphs affidavit sworn to by Nkem Okoro, a legal practitioner in the chambers of T. Onwugbufor, SAN & Co. and Counsel handling the defence of the Applicant in the charge before the FCT High Court from which the appeal before this Court emanated. There are copies of several documents annexed to the affidavit and marked as Exhibits A-W and Y. A further affidavit in reply to the Respondent’s 2nd Counter affidavit was also filed on the 2/6/09 for the Applicant.
For the Respondent, a counter affidavit deposed to by Ugochukwu Epuchie, a legal practitioner in the chambers of Okey Uzoho & Co., was filed on the 2/4/09 and it has attached to it, copies of documents marked as Exhibits FRN 1, 2 and 3, 3A and 38. In addition, Respondent’s 2nd and 3rd counter affidavits were filed 5/5/09 and 12/6/09 respectively in opposition to the application.
Pursuant to the Court’s order, written addresses were filed and exchanged by the learned Counsel for the parties to the application. The Applicant’s address was filed on the 20/4/09 while that for the Respondent was filed on 5/5/09. The Applicant’s Reply address was filed 2/6/09 and all the addresses were adopted at the oral hearing of the application in court on the 30/11/10 by learned Counsel as their respective submissions in support of their positions which we were urged to uphold.
The learned Senior Counsel Tochukwu Onwugbufor settled the Applicant’s address at page 3 of which he raised two (2) issues for determination in the application. They are:-
“1. Whether Okey Uzoho Esq., qua Okey Uzoho Esq., is competent to appear as the prosecuting counsel in this appeal on behalf of the Attorney General of the Federation pursuant to Exh. C1 i.e. the letter from the Attorney General authorizing Okey Uzoho Esq. to appear and represent him in this matter.
2. Whether the appearance of Okey Uzoho Esq. to prosecute this matter/appeal will not amount to persecution instead of prosecution having regard to the ingrained malice, hatred, passion and atavism existing between Okey Uzoho Esq. and the accused/appellant arising from the petitions of accused/applicant against Okey Uzoho Esq. and the libel suit instituted by Okey Uzoho Esq. against the accused/appellant”
The Respondent’s address was prepared and signed by Okey Uzoho, Esq. the learned Counsel whose competence to appear in the case before the High court and the appeal before this court is being challenged. On his part, he formulated a single issue for determination in this application in the following terms:-
“Whether, given the circumstances of this Appeal, Okey Uzoho Esq. should be barred from arguing this Appeal on behalf of the Respondent.”
From the facts of the application the brief of which is that Okey Uzoho does not have the authority of the Federal Attorney General to represent the Respondent and prosecute the Applicant in charge before the High Court, the crucial issue in the application which calls for determination is in the terms of Applicant’s issue 1 and the Respondent’s sole issue. Put shortly, the germane issue that requires determination in the application is whether or not on the affidavit evidence before the Court, Okey Uzoho is competent to represent the Respondent at the trial of the Applicant before the High Court.
Both learned Counsel for the parties are therefore one on the vital question that arises for decision in the application, their style of formulation notwithstanding.
I have looked at the notice of appeal filed by the Applicant which is at pages 270-276 of the record of the appeal to which this appeal relates. Ground Four of the five grounds contained on the notice of appeal is relevant for the purpose of the application and is as follows:-
“GROUND FOUR
The learned trial Judge erred in law when he held that the letter dated 13th March 2007 addressed to Okey Uzoho & Co. entitled Mr. Okey Uzoho to be a prosecuting/leading counsel in the case before the lower court and this error has resulted in miscarriage of justice.
PARTICULARS
1. The letter of 13th March 2007 written by the office of the Director of Public Prosecution of the Federation on behalf of the Attorney General of the Federation was addressed to Okey Uzoho & Co., a law firm.
2. Okey Uzoho & Co., being a law firm, is not a Legal Practitioner enrolled in the roll of legal Practitioners.
3. The said letter did not authorize Mr. Okey Uzoho, qua Okey Uzoho, a Legal Practitioner, to become a prosecuting/leading counsel in the case before the learned trial Judge.”
Flowing from the above ground, in the Appellant’s brief of argument dated the 12/11/09 but filed on the 14/1/2010 and settled by T. Onwugbufor, SAN, the following issue was formulated for determination in the appeal:-
“1. Whether, having regard to the Attorney General’s letter of 13/3/2007 addressed to Okey Uzoho & Co. authorizing it to join the prosecuting team from the Attorney General’s Chambers, the learned trial Judge was right in holding that Okey Uzoho Esq, can join the prosecuting team from the Attorney General’s chambers or appear us a prosecuting counsel, or at all in the case.
Put the other way, has Okey Uzoho Esq. any locus standi in the prosecution of the appellant having regard to the Attorney General’s letter of 13th March 2007 authorising Okey Uzoho & Co. and not Okey Uzoho Esq. to join the prosecuting team from the Attorney General’s chambers in the prosecution of the charge. (Ground 4 of the Notice of appeal dated 3rd December 2007; ground 4 of the grounds of appeal).”
There is no difficulty whatsoever in observing that the above issue which was formulated and submitted to the court for determination in the appeal by the Appellant calls for decision of whether or not Okey Uzoho was competent to represent the Respondent and prosecute the Appellant before the High court. So the issue in this application is the same as the one submitted by the Appellant to the Court for determination in the appeal. I would also add that the competence of Okey Uzoho to represent the Respondent and prosecute the Appellant in the charge before the High court is at the root of the appeal on which the other issues in the appeal would largely depend. Its outcome is therefore very crucial and fundamental to the other issues in the appeal.
Because the primary issue in the appeal of the Applicant is the same with the issue in this application, I do not intend to go into review and then consider the submissions of the learned Counsel on it in order to avoid touching on and prematurely determining the issue in the appeal.
This Court in the case of ESTISIONE H. NIG. LTD. V. OSUN STATE GOVERNMENT (2006) ALL FWLR (30) 1131 at 1146 had restated the attitude and practice of the courts in such situations when it held that:-
“The court must refrain from making pronouncements on issues or findings of facts on which the ultimate decision in the substantive appeal may depend at an interlocutory stage.”
Similarly the Supreme Court had in the case of OKOTIE-EBOH v. MANAGER (2004) 11-12 SC. 174 had cautioned the courts in such situations at page 177 when it held that in a ruling on an interlocutory application, the court should avoid making any observation that might appear to prejudge the main issue in contention between the parties in the substantive matter. See also: OJUKWU v. GOVERNMENT OF LAGOS STATE (1986) 3 NWLR (26) 39. OGUNRO v. DUKE (2006) ALL FWLR (308) 1287 at 1298. IDEH v. GODBLESS MOTORS (1991) 4 NWLR (188) 699. Since the main issue in the appeal is the same as the issue submitted for determination in this application, practically there is no way the Court can avoid making pronouncements in deciding the appeal at this stage since it would be dealing with one and same issue.
In the above circumstances, it is ordered that the application should await the outcome of the appeal by the Applicant/Appellant.
JIMI OLUKAYODE BADA, J.C.A: I had a preview of the lead Ruling of my Lord, MOHAMMED LAWAL GARBA, JCA, just delivered and I agree with the reasons given therein and the conclusion reached.
It is also my view that since the issue in this application is the same as the one submitted by the Appellant to this Court for determination in this appeal, this Court should avoid taking any decision or making any observation which might appear to prejudge the main issue in contention between the parties. Therefore this application should await the outcome of the main Appeal.
REGINA OBIAGELI NWODO, J.C.A: I had read in draft the Ruling of my learned brother GARBA, JCA just delivered. I agree with the reasoning contained therein and conclusion arrived thereat. An injunction at interlocutory stage of the proceedings in an appeal will not normally be granted if such grant will put an end to the conduct of the substantive appeal.
I agree and abide by the order in the lead Ruling.
Appearances
Tochukwu Onwugbufor, SAN
Uchenna AghadiunoFor Appellant
AND
Ferdinand EseweFor Respondent
