JOLIMAIR NIGERIA LIMITED Vs. LIBERTY BANK PLCJuly 26, 2016
Payment TestOctober 25, 2016
Appeal No: SC. 37/2015
Areas Of Law:
ACTION, APPEAL, COURT, JUDGEMENT AND ORDER, JURISDICTION, PRACTICE AND PROCEDURE
Summary Of Facts
The 1st Appellant under the platform of the Peoples Democratic Party was elected into office at the State Congress election. The Independent National Electoral Commission monitored the election and subsequently recognised the congress and the executive committee emerging therefrom. However, some members of the Peoples Democratic Party attempted to recognise one Ken Emeakayi and his associates as the authentic PDP Executive Committee for Anambra State which prompted the 1st and 2nd Appellants to file an action in a representative capacity at the Port Harcourt Judicial Division of the Federal High Court. The trial court ordered the PDP to maintain the status quo ante bellum. The 1st Respondent herein appealed against the said order to the Court of Appeal. Whilst this appeal was pending before the court, Mr. Ken Emeakanyi commenced another action at the Federal High Court Abuja claiming to still be the Chairman of PDP Anambra State Chapter which suit was dismissed. The 1st Respondent during the pendency of the orders of the Federal High Court set up a caretaker committee to run the affairs of the PDP Anambra State Chapter, consequently, the Appellant by way of Originating Summons approached the Federal High Court for the determination of some questions and sought a declaration that the caretaker committee set up by the 1st Defendant is an illegal and unconstitutional body when the tenure of the Ejike Oguebego led state executive committee is still subsisting, functioning and duly recognised by the court and the 2nd Defendant among other reliefs. At the conclusion of trial, the court granted the reliefs sought. Dissatisfied with the judgement, the 1st Respondent herein appealed to the Court of Appeal, Abuja Division which set aside the trial court’s judgement , hence this appeal. The 1st Respondent filed a preliminary objection urging the court to strike out the appeal as incompetent.
Preliminary Objection Overruled, Appeal Allowed
Issues For Determination
- Whether the Court of Appeal was right in holding that the trial judge should not have assumed jurisdiction over the subject matter of this case relating to the protection of the sanctity of the judicial process of which, the 1st respondent was in contempt and also relating to an executive and/or administrative decision of the Independent National Electoral Commission.
- Whether the Court of Appeal was right to have held that the case of the appellants was an abuse of court process on the basis of another case that the appellants are not parties to.
- Whether the Court of Appeal was competent to determine the issue of “whether the case of the appellants was an abuse of court process on the basis of a point raised by the court suo motu and in respect of which the parties “were not called upon to address the court.
- Whether the cases of Okadigbo V. Emeka & others(2012) 18 NWLR (pt. 1331) 55 and Emenike V. PDP (2012) 18 NWLR (pt. 1315) have any relevance to the real issues that arose for determination before the Court of Appeal.
- Whether the case of the appellants was rightly commenced by originating summons.
GROUND OF APPEAL – CRITERIA FOR VALIDITY OF A GROUND OF APPEAL
“It is trite that for a ground of appeal to be valid and competent, it must arise from and be traceable to the judgment appealed against and should constitute a challenge to the ratio of the decision on appeal. It is still good law that when a ground of appeal as formulated does not arise from the judgment and purports to raise and attack an issue not decided by the judgment appealed against, the same becomes incompetent and liable to be struck out. See Co-operative & Commerce Bank Plc & Anor. V. Jonah Dan Okoro Ekperi (2007) 3 NWLR (pt. 1022) 493.“ PER J.I.OKORO,J.S.C
REPLY BRIEF – PURPOSE OF A REPLY BRIEF
“Be that as it may, it is trite that a reply brief under the Rules of this court is not to afford an appellant another or further bite at the cherry or opportunity to provide additional arguments in support of an appeal, but to answer, reply or respond to any fresh or new points raised in the respondent’s brief. This court in many decided cases has laid emphasis on when a reply brief is necessary and what it should address. A reply brief is filed when an issue of law or argument raised in the respondent’s brief usually by way of preliminary objection calls for a reply. Where a reply brief is necessary, it should be limited to answering any new points arising from the respondent’s brief. Although the filing of a reply brief is not mandatory, where a respondent brief raises issues or points of law not covered in the appellant’s brief, an appellant ought to file a reply as failure to file one without an oral reply to the points raised in the respondent’s brief may amount to a concession, or admission of the points of law or issues raised in the respondent’s brief. See Harka Air Services (Nig) Ltd V. Keazor Esq., (2011) LPELR – 1353 (SC), Popoola v. Adeyemo (1992) 8 NWLR (pt. 257) 1, Longe V. FBN (2010) 6 NWLR (pt. 1189) I, Shuaibu V. Mailodu (1993) 3 NWLR (pt. 284) 748.” PER J.I.OKORO,J.S.C
DECISION OF COURT – DUTY OF A PARTY TO OBEY THE DECISION OF A COURT
“It is a trite principle of law that any person against whom, a decision of a court is given is duly bound to obey it irrespective of whether the person against whom, the order is made is of the opinion that the order is void. He is bound to obey the order until it is set aside. See Rossek V. A.C.B (1993) 8 NWLR (pt. 312) 382 at 471, Williams V. Sanusi (1961) ALL NLR 33, Ajao V. Alao(1986)5NWLR(Pt.45)802 at 832, Melifonwu v. Egbiyi(1982)9SC 145“. PER J.I.OKORO,J.S.C
DISOBEDIENCE TO AN ORDER OF COURT – CONSEQUENCES OF DISOBEDIENCE TO AN ORDER OF COURT
“Any disobedience to court’s order is a serious contempt and courts of law must protect themselves from being maligned and/or ridiculed. See Jev vs. Iyortom(2014)14 NWLR (Pt. 1428)575 at 628 para. H. PER J.I.OKORO,J.S.C
PARTIES TO AN ACTION – WHETHER A PERSON WHO IS NOT A PARTY TO A SUIT CAN BE AFFECTED BY THE JUDGEMENT
“The law is settled as a matter of general rule that no person is to be adversely affected by a judgment in an action to which he was not a party because of the injustice in deciding an issue against him in his absence unless he is a privy to a party in which case he is equally bound as the parties or he has so acted as to preclude himself from challenging the judgment in which case he is stopped by conduct. See Clay Industries Ltd V. Aina (1997) 7 SCNJ 491 at 509“. PER J.I.OKORO,J.S.C
ABUSE OF COURT PROCESS – WHETHER MULTIPLICITY OF SUITS BY DIFFERENT PARTIES AMOUNTS TO ABUSE OF COURT PROCESS
“It is trite that where the parties to multiplicity of suits are not the same there cannot be said to be abuse of court process in the sense of there being multiple actions between the same parties on the same subject matter. See Ogoejofo V. Ogoejofo (2006) 3 NWLR (pt 966) 205 at 226.“ PER J.I.OKORO,J.S.C
ISSUE RAISED SUO MOTU – DUTY OF A COURT WHERE IT RAISES AN ISSUE SUO MOTU
“It is trite that when a court raises a point suo motu , then the parties must be given an opportunity to b e heard on the point; particularly the party that may ,suffer punishment as a result of the point raised suo See Adegoke V. Adibi (1992) 6 SCNJ. 136, Odiase V. Agbo (1972) 1 ALL NLR (pt. 1) 170, Ajao V. Ashiru (19 73) 11 SC. 23.“ PER J.I.OKORO,J.S.C
ISSUE RAISED SUO MOTU – DUTY OF AN APPELLATE COURT WHERE IT RAISES AN ISSUE SUO MOTU
“It was not open to the Court of Appeal to raise an issue which the parties did not raise themselves during the hearing of the appeal. When the Court of Appeal felt inclined to raise such a point for any reason, it should have given the parties an opportunity of making their comments upon it before it took a decision on the issue. See also Ndiwe V. Okocha (1992) 7SCNL 355, Iriri V. Erhurhobara (1991) 2 NWLR (pt. 173) 252 at 265, Section 36 of the 1999 Constitution of the Federal Republic of Nigeria (as amended). PER J.I.OKORO,J.S.C
ORIGINATING SUMMONS – MEANS OF DETERMINING WHETHER THE FACTS IN SUPPORT OF AN ORIGINATING SUMMONS ARE CONTENTIOUS
” It is trite that in determining whether the facts in support of an Originating Summons are contentious, it is the nature of the claim, and the facts deposed to in the affidavit in support of the claims that will be examined to see if they disclose disputed facts and a hostile nature of the proceedings”. PER J.I.OKORO,J.S.C
DISOBEDIENCE OF A COURT’S ORDER – DUTY OF A COURT WHERE A PARTY FLOUTS ITS ORDER
“Where the person against whom a court order is made takes the option of flouting it, the courts are not helpless as they have a bounden duty and jurisdiction to reverse all steps taken to overreach or render nugatory any decision of the courts. That is to say that disobedience of a court’s order is a serious contempt and courts of law must protect itself from being maligned, ridiculed or disparaged. See Okoya & Ors v Santili & Ors (1991) 7NWLR (Pt. 206) 753 at 770; Anthony v Surveyor-General of Ogun State & Anor(2007)ALL GWLR(Pt.354) 375 at 389.” PER M.U.PETER-ODILI, J.S.C
JURISDICTION OF THE FEDERAL HIGH COURT – SECTION 251(R) OF THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA (AS AMENDED)
“Section 251(r) of the 1999 Constitution (as amended) provides:
“251. (1) Notwithstanding anything to the contrary in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters
(r) any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies”
An interpretation of section 251 (1) (r) of Constitution is that jurisdiction is granted to the Federal High Court where the beneficiary such as the appellant is apprehensive that the action of the Federal Government Agency may infringe on the rights of the appellant. See Gbileve v Addingi (2014) 16 NWLR (Pt. 1433) 394 at 431“.PER M.U.PETER-ODILI, J.S.C
Statutes Referred To
Constitution of the Federal Republic of Nigeria 1999( as amended)
Electoral Act, 2010 (as amended)