Legalpedia Citation: (2014) Legalpedia (CA) 11486

In the Court of Appeal

HOLDEN AT PORT HARCOURT

Thu Mar 20, 2014

Suit Number: CA/PH/202M/2005

CORAM

PARTIES

CHIEF INNOCENT IWUJI & ors APPELLANTS

GOVERNOR OF IMO STATE & ORS RESPONDENTS

AREA(S) OF LAW

SUMMARY OF FACTS

The Plaintiffs/Appellants vide a Writ of Summons, instituted a suit against the Defendants/Respondents and claimed declaratory and injunctive reliefs as follows; a declaration that the 6th and 7th Defendants are bound by a popular and democratic decision of the generality of the Nnemere Mpam people made on 1st January 2003, to set up a Constitution Drafting Committee to draft a new Constitution; to have the constitutional draft thoroughly debated by all the people of Nnemere Mpam, home and abroad, and to embark on the process of identification, selection and presentation of the Eze-elect through a democratic process based on the new constitution after its approval; an Order of permanent injunction to restrain the 2nd Defendant by himself, his agents, workers or privies, howsoever from accepting and or processing any application for Recognition of the 5th Defendant as Eze of Nnemere Mpam Autonomous Community. The 5th, 6th & 7th Respondents filed their joint statement of defence, while the 1st – 3rd Respondents filed a motion on Notice challenging the jurisdiction of the honorable Court to entertain the suit. During the pendency of the suit and the application for injunction, the 1st Respondent accorded recognition and gave the staff of office to the 5th Respondent as the Traditional Ruler (Eze) of Nnemere Mpam Community in the Ahiazu Mbaise Local Government Area of Imo State. The Appellants, upon the recognition of the 5th Respondent filed a Motion on Notice seeking an Order of the honorable trial Court to set aside the said recognition accorded the 5th Respondent. Before the motion, the 5th – 7th Respondents filed a Notice of preliminary objection seeking an Order striking out the motion to set aside the recognition for want of jurisdiction. In a considered ruling, the learned trial judge upheld the preliminary objection and held that the Court lacked jurisdiction to set aside the recognition of the 5th Respondent by the 1st Respondent during the pendency of the suit. It is against the said ruling that the Appellants have filed this appeal.

HELD

Appeal Dismissed

ISSUES

Whether the learned trial judge was right when he held that having regard to the part heard objection to his jurisdiction to entertain the substantive action, he could still proceed to take arguments on the alleged acts bordering on contempt, rule on same and return to the issue of jurisdiction.

RATIONES DECIDENDI

ACTION, PARTIES, PRACTICE AND PROCEDURE

PARTIES – DUTY OF PARTIES DURING THE PENDENCY OF A SUIT
“Before delving into the matter, let me say without any hesitation agree with the Learned Senior Counsel to the Appellants, Chief M. I. Ahamba, SAN, that it is trite law that once parties have submitted their disputes to the court for determination, none of the parties is allowed to do any act or omission that would over-reach the interest of the other pending the determination of the suit, and if any of the parties does anything to the contrary, the court has the inherent power to set aside such act which tends to ridicule the court. Therefore, where a party is aware of a pending court process, and whether the court has not given a specific injunctive order, parties are bound to maintain status quo pending the determination of the court process. They should on no account resort to self-help. See Government of Lagos State vs. Ojukwu (supra). Obeya Memorial Hospital vs. A.G. Federation (supra) and Ezegbu vs. F.A.T.B. (supra). In other words, it is not permissible for one of the parties to take any step during the pendency of the suit which may have the effect of foisting upon the court a situation of complete helplessness or which may give the impression that the court is being used as a mere subterfuge, to tie the hands of one party while the other party helps himself extra-judicially. Both parties are expected to await the result of the litigation and the appropriate order of court before acting further. Once the court is seized of the matter, no party has the right to take the matter into his own hands. It is a reprehensible conduct for any party to an action or appeal pending in court to proceed to take the law into his hands, without any specific order of the court and to do any act which would pre-empt the result of the action. The courts frown against such a conduct and would always invoke their disciplinary powers to restore the status quo. See Abiodun vs. C. J. Kwara State (2007) 18 NWLR (Pt.1065) 109 at 139. paras. C-F; 140-141. paras. A-B; Registered Trustees, Apostolic Church vs. Olowoleni (1990) 6 NWLR (Pt.158) 514.”

JURISDICTION, COURT, PRACTICE AND PROCEDURE

ISSUE OF JURISDICTION- DUTY OF COURT TO FIRST RESOLVE THE ISSUE OF JURISDICTION BEFORE DELVING INTO THE SUBSTANTIVE SUIT
“It is now settled that the issue of jurisdiction is fundamental to the question of the competence of the court adjudicating. It is therefore crucial for any court adjudicating to first determine that issue. It is an exhibition of wisdom to have the issue of jurisdiction or competence determined before embarking on the hearing and determination of the substantive matter. See Kalio vs. Kalio (1975) 2 SC 15; Barclays Bank vs. CBN (1976) 6 SC 175; and Oloba vs. Akejera (1988) 7 SC (PART 1) 11.”

JURISDICTION

ISSUE OF JURISDICTION- RATIONALE FOR THE PRECEDENCE OF THE ISSUE OF JURISDICTION OVER OTHER ISSUES
“Jurisdiction is always regarded as a fundamental issue. It is the life wire of any litigation and the base on which adjudication rests. It is variously described by courts as the bedrock and foundation of adjudication. A decision reached without jurisdiction is a nullity and the proceedings become an exercise in futility. This is the reason the issue of jurisdiction takes precedence over all other issues whenever it arises.”

JURISDICTION, PRACTICE AND PROCEDURE

ISSUE OF JURISDICTION – APPROPRIATE TIME FOR RAISING THE ISSUE OF JURISDICTION
“It is also a settled principle of law that the issue of jurisdiction can be raised at any stage of a case, be it, at the trial, on appeal to the Court of Appeal or to the Supreme Court. It can be raised once it is apparent to any party that the court may not have jurisdiction; a fortiori the court can raise it suo motu. See Osadebay vs. A.G. Bendel State (1991) 1 NWLR (Pt.169) 525; and Owoniboys Technical Services Ltd. vs. John Holt Ltd (1991) 6 NWLR (Pt.199) 550. This therefore means that there is no specific format for raising the issue of jurisdiction which could be raised before, at or after the trial of the suit. See Ibrahim vs. Gaye (supra); Akegbejo vs. Ataga (1998) 1 NWLR (Pt.534) 459. It could even be raised viva voce see Petrojessica Enterprises vs. Leventis Technical (supra).”

ACTION

PRELIMINARY OBJECTION- OBJECTIVE AND NATURE OF A PRELIMINARY OBJECTION
“A preliminary objection is an objection against the regularity of a court process, that is, a suit, motion, etc. The primary objective of such an objection is to terminate the proceedings at the stage the objection is raised. The objection must be preliminary in the sense that no other proceeding which may have the effect of waiver on the part of the objector shall have taken place in the entire proceedings. See Okoi vs. Ibiang (supra).”

ACTION, PRACTICE AND PROCEDURE

PRELIMINARY OBJECTION – PROCEDURE FOR RAISING A PRELIMINARY OBJECTION
“Preliminary objections are raised by a separate notice, usually titled “Notice of Preliminary Objection” or “Preliminary Objection”, which may or may not be supported by affidavit depending on whether they are based on point of law or facts. Where a preliminary objection is based on point of law, it does not require an affidavit but if based on facts an affidavit is necessary. See A.G. Federation vs. A.N.P.P. (2003) 18 NWLR (PT.851). In other words, where the preliminary objection deals strictly with issues of law, there is no need for any supporting affidavit, but the grounds for objection need be clearly stated. However, when the objection leaves the province of law and dwells on the facts of the case, the party relying on such preliminary objection must support same by filing an affidavit.”

LOCUS STANDI, PRACTICE AND PROCEDURE

LOCUS STANDI- NECESSARY STEPS TO BE TAKEN WHEN AN OBJECTION IS RAISED ON GROUNDS OF LACK OF LOCUS STANDI
“A notice of preliminary objection complaining about the Plaintiff’s lack of standing as in the instant appeal should first be settled. In order to clothe the court with jurisdiction, the Plaintiff must show that he has locus standi to commence or institute the action whereas as in this case on appeal wherein the Respondents complained of lack of locus standi among others. This is because the locus standi of a Plaintiff is a pre-condition to the court assuming jurisdiction. Where this initial hurdle in the judicial process is not satisfied by a Plaintiff, he cannot proceed to the next stage of litigation. See TSA Industries Nig. Ltd. Vs. Melwani (supra) and Soda vs Kuringa (supra).”

ACTION, PRACTICE AND PROCEDURE

PRELIMINARY OBJECTION- WHETHER A PRELIMINARY OBJECTION MUST BE ACCOMPANIED BY AN AFFIDAVIT
“It is trite that once preliminary objection to the jurisdiction of the court is raised, it is sufficient notice to the other party since no affidavit need be filed by the Objector. In Bello vs. National Bank of Nigeria (1999) 6 NWLR (Pt.246) 206, it was held that there is no mandatory requirement under the Rules of the High Court for a preliminary objection to be accompanied by an affidavit except where the party raising the objection has proceeded by way of Motion on Notice. In Okoi vs. Ibiang (Supra) it was also held that an objection must be based on the document already before the Court and no evidence whether oral or documentary shall be allowed. A preliminary objection needs not be supported by an affidavit as long as enough material is placed before the Court on which it can judiciously pronounce on the objection.”

JURISDICTION, PRACTICE AND PROCEDURE

ISSUE OF JURISDICTION- FORMAT FOR RAISING THE ISSUE OF JURISDICTION
“In Ibrahim vs. Gaye (2002) 13 NWLR (Pt.784) 267, the issue of jurisdiction was raised by the Respondents in the course of arguments on an interlocutory injunction. This court held the procedure proper and added that the issue of jurisdiction may be raised by the pleading or otherwise and that there is no specific format for raising the issue of jurisdiction in view of its vital and fundamental importance. See Ekara vs. Takim (1995) 5 NWLR (Pt.394) 242; Petrojessica Enterprises Ltd vs. Leventis Technical Co. Ltd (Supra).”

JUDGMENT AND ORDER, COURT, PRACTICE AND PROCEDURE

ORDER OF COURT- WHETHER AN ORDER OF COURT CAN BE MADE WHERE THE ISSUE OF JURISDICTION IS YET TO BE RESOLVED
“It is trite that the court must not give an order in the suit affecting the Defendants until the issue of jurisdiction is settled when it has been raised. See NDIC vs. CBN (2002) 7 NWLR (Pt.766) 272 at 292. In Asogwa vs. Chukwu (2002) 4 NWLR (Pt.811) 540 at 579, it was held that no amount of urgency should compel a court in the context of the Nigerian jurisprudence to make an order when its competence or its power to adjudicate on the matter is called into question and is yet to be argued and resolved.”

JURISDICTION, COURT, PRACTICE AND PROCEDURE

INHERENT JURISDICTION OF COURT – WHETHER THE INHERENT JURISDICTION OF A COURT IS EXERCISABLE WHERE IT LACKS JURISDICTION
“It is trite that the inherent jurisdiction of the court is not exercisable when the court lacks jurisdiction. See Odofin vs. Agu (1992) 3 NWLR (Pt.229) 350 at 369. What this means is that the inherent jurisdiction of a court only comes in where it has jurisdiction, and where its jurisdiction is being challenged as in the present case, it has to determine first whether it has jurisdiction before being called upon to exercise its inherent jurisdiction as the Appellants are requesting in the present case. See Nokoprise International Co. Ltd vs. Dobest Trading Corporation (1997) 9 NWLR (Pt.520) 334 at 344.”

CASES CITED

Not Available

STATUTES REFERRED TO

Constitution of the Federal Republic of Nigeria, 1999|Court of Appeal Rules of this court 2011 (now 2016)|Traditional Rulers and Autonomous Communities Law of 1999 (Imo State)|

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