View
257
Download
7
Category
Preview:
Citation preview
STATE v. CUSTOMARY COURT OWERRI URBAN &ORS
CITATION: (2016) LPELR-40969(CA)
In the Court of AppealIn the Owerri Judicial Division
Holden at Owerri
ON WEDNESDAY, 29TH JUNE, 2016Suit No: CA/OW/76/2010
Before Their Lordships:
RAPHAEL CHIKWE AGBO Justice, Court of AppealPETER OLABISI IGE Justice, Court of AppealFREDERICK OZIAKPONO OHO Justice, Court of Appeal
BetweenTHE STATE (EXPARTE FIDELIS ELUMA) - Appellant(s)
AndTHE CUSTOMARY COURT OWERRI URBAN (2ndRESPONDENT)
AND
1. NWORGU EWUZIE2. JULIUS OSUIGWE(APPLICANTS/1ST SET OF RESPONDENTS)
- Respondent(s)
RATIO DECIDENDI1. ACTION - NON-JOINDER OF PARTY(IES): Effect of the non-joinder of a necessary party on the jurisdiction and order of court
"It has been decided in numerous cases that failure or non joinder of a party to a proceeding will not vitiate the proceeding and cannotrender it incompetent as it does not affect the competence of the court concerned to adjudicate on the matter or issues in controversyin the action See the case of UNION BEVARAGES V. PEPSI COLA (1994) 2 SCNJ 157 at 173 where the Supreme Court per ADIO JSC said???Proceedings will not be a nullity on the ground of lack of competence of the Court or lacks of jurisdiction where a Plaintiff fails to joina party who ought to be joined. In such a case, the Court may deal with the matter in controversy so far as regards the rights andinterests of theparties actually before it."Per IGE, J.C.A. (Pp. 32-33, Paras. C-A) - read in context
2. ACTION - NECESSARY PARTY : Who is a necessary party"The person to be sued must in the real sense of it be a necessary party whose presence is actually needed to enable the Court toeffectually and completely determined all issues in controversy in the case."Per IGE, J.C.A. (P. 33, Para. A) - read in context
(201
6) LP
ELR-40
969(
CA)
3. APPEAL - UNAPPEALED FINDING(S)/DECISION(S): Effect of unappealed finding(s)/decision(s)The judgment/Orders made by Nwosu ??? Iheme J. remain subsisting and binding on the parties concerned by the Orders until they areset aside on appeal. See:ALHAJI M. B. BUHARI AWODI & ANOR VS MALLAM SALU AJAGBE (2014) 12 SCM (PT. 2) 181 at 195 F per OKORO, JSC who said:???As at the time of writing this judgment, there is no appeal against the findings of the Court below quoted above, the effect is thatboth parties are bound by the said finding of the Lower Court.???Per IGE, J.C.A. (P. 28, Paras. A-C) - read in context
4. COURT - HIGH COURT: Whether there are more than one High Court in a state"Now pursuant to Section 270(1) and 2 of the 1999 Constitution there is only one High Court for each of the states in the Federation ofNigeria whose jurisdiction is shared by all JUDGES of the said High Court in the states notwithstanding that there are various Divisions ofthe High Court in each of the states in the country. Thus any Ruling, decree, judgment or order made by any of the Judges of the HighCourt of Imo State of Nigeria remains the Ruling, decree, judgment or Order of Imo State High Court. They remain sacrosanct or extantuntil set aside by an Appellate/Court. See SHELL PETROLEUM DEVELOPMENT COMPANY NIGERIA LTD VS. CHIEF TIGBARA EDAMKUE &ORS (2009) 14 NWLR (PART 1160) 1 at 25 where OGBUAGU JSC said: -???I am aware there is only one High Court in a State with Judicial Divisions, created for administrative convenience or purposes. TheJudges of the Federal High Court sit in different States or separate Courts as in the Federal Capital Territory. Both Courts are bound byone Statutory Rule of Court. See: the cases of S. O. Ukpai v. Okoro & Ors.And on pages 27 F ??? G of the report his Lordship said:???I note in fact, that the said Orders of Sanyaolu, J., made on 7th February, 1995, amending the capacities the respondents prosecutedboth suits, were not appealed against. The effect is that those Orders subsist in law. See: the case of Chief Ogunyade v. Oshunkeye &Anor. (2007) 15 NWLR (Pt. 1057) 218 @ 257 cited and relied on by the respondents their brief (it is also reported in (2007) 7 SCNJ 170).In the concurring Judgment of Omoghen, JSC in the case of Chief Ogunyade v. Oshunkeye & Anor. (2007) 15 NWLR (Pt. 1057) 218 @257, cited and relied on it paragraph 3.3 (6) at page 7 of the respondent???s brief, His Lordship stated inter alia: as the Law is settledthat any point(s) of law or facts not appealed against is deemed to have been conceded by the party against whom it was decided andthat the said point(s) remain(s) valid and binding on the parties. And on pages 28 F ??? H to 29 A His Lordship said:However, I am aware and concede on this also settled, that no Judge can or is entitled to reverse, vary or alter the Order or decision ofanother Judge of co-ordinate jurisdiction except on issue of jurisdiction. See: the cases of Akporue & Anor. V. Okei (1973) 12 S. C. 137;(1973) 3 ECSLR 1010 @ 1014; Orewere & Ors. V. Abiegbe & Ors. (1973) 3 ECSLR 1164 @ 1167 ??? that the proper action is to go onappeal; National Insurance Corporation of Nigeria v. Power Industrial Engineering Co. Ltd. (1990) 1 NWLR (Pt. 129) 697 @ 707 C. A. ???per Akpata. JCA (as he then was). In other words, in the absence of statutory authority, one Judge has no power to set aside or vary theorder of another Judge of concurrent and co-ordinate jurisdiction. See: the cases of Amamabu v. Okafor (1966) 1 ALL NLR (Pt. 1) 475cited in the case of Wimpey (Nig.) Ltd. & Anor. V. Alhaji Balogun (1986) 3 NWLR (Pt. 28) 324 @ 339. This is especially so when suchOrder has been entered or drawn up."Per IGE, J.C.A. (Pp. 15-18, Paras. D-A) - read in context
5. JURISDICTION - JURISDICTION OF THE STATE HIGH COURT: Extent of the supervisory jurisdiction of a State High Court"The Orders made are within the supervisory jurisdiction of the Honourable Justice NWOSU ??? IHEME (Now JCA) as provided underSection 272(2) of the 1999 Constitution which provides:???272 (2) the reference to civil or criminal proceedings in this section includes a reference to the proceedings which originate in theHigh Court of a State and those which are brought before the High Court to be dealt with by the Court in the exercise of its appellate orsupervisoryjurisdiction.???See Hon. Ehioze Egharevba vs. Hon. Crosby Osadolor Eribo & Ors (2010) 9 SCM 121 at 137 C ??? E per ADEKEYE JSC who said:???Ordinarily our laws by virtue of Section 272 (2) of the 1999 Constitution our High Courts have the power to review administrativedeterminations of inferior tribunals, in that the High Court has an inherent jurisdiction to control all inferior tribunals not in an appellatecapacity, but in a supervisory capacity. That control extends not only to seeing that it observes the law, but also that the inferiorTribunals keep within its jurisdiction. The control is exercised by means of a power to quash any determination by the tribunal which onthe face of it offends against the law. This power is exercised in respect of administrative decisions of any inferior tribunals, on thegrounds of illegality or procedural impropriety or irrationality. Okeahialam v. Nwamara (2003) NWLR pt. 835 pg. 597."Per IGE, J.C.A. (Pp. 18-19, Paras. D-e) - read in context(2
016)
LPELR
-4096
9(CA)
6. JURISDICTION - CONCURRENT JURISDICTION: Whether a Judge has the power to set aside or vary the order of another Judge ofconcurrent and co-ordinate jurisdiction"The Order of Honourable Justice Nonye Okoronkwo (Now JCA) which set aside the order of NWOSU-IHEME,J., on the ground that 1stRespondents were necessary party who were not joined to the certiorari proceedings was made without jurisdiction. As a Judge ofcoordinate jurisdiction with Nwosu ??? Iheme, J., now JCA he lacked the vires or jurisdiction to set aside the orders made on 19th day ofFebruary, 2003. It tantamount to sitting as appellate Court over the judgment validly given within the jurisdiction of a brother High CourtJudge. See(1) NATIONAL HOSPITAL, ABUJA & ORS VS. NATIONAL COMMISSION FOR COLLEGES OF EDUCATION & ORS. (2014) 11 NWLR (PT. 1418)309 AT 334 D ??? G PER YAHAYA, JCA WHO SAID:???However, if the understanding of the Appellants is that their appeal includes this aspect, then I hold that it must fail because the trialCourt had no jurisdiction to entertain the issues already decided and pronounced upon by the Federal High Court, Kaduna. The trialcourt was right that it could not grant the reliefs sought by the Appellants/Plaintiffs, since they bear directly on the judgment and ordersof the Federal High Court, Kaduna. Furthermore, to grant the reliefs sought by the Appellants/Plaintiffs, would amount to the trial Courtsitting on appeal and reversing the judgment of the Federal High Court, Kaduna. That would be wrong because a Court of coordinatejurisdiction cannot sit on appeal over its counterpart. The trial court had no jurisdiction to entertain the suit of the Appellants. Also tiedto this, is the fact that in law, any interest based on a challenge (cannot appeal) of a decision of a competent Court which has not beenappealed against, cannot be a valid interest enough, to ground locus standi. It was a wooly contention on the part of the Appellants toground locus standi despite the unchallenged judgments and Order of the High Court, Kaduna.???(2) LAWRENCE S. U. AZUH VS UNION BANK OF NIGERIA PLC (2014) 11 NWLR (Pt. 1419) 580 at 608 F ??? H to 609 A ??? C per KEKEREEKUN JSC who said:???Where criminal charges are pending against an accused person, his right to freedom of movement pending the determination of thecase may be curtailed by the Court seized of the matter or by a higher Court, depending on the nature of the offence. By the avermentin paragraph 7 of the affidavit in support of the motion ex-parte, the Appellant had been granted bail by Court No. 5 of the same HighCourt. The enrolled order in respect thereof does not form part of the record before us. However, it is evident, from the reliefs sought,that the Respondent was not satisfied with bail conditions granted by that Court which led to the institution of the suit that gave rise tothis appeal, whose sole purpose was to have the bail conditions varied by making them more stringent, and specifically to ensure thatthe Appellant remained within the country for the duration of his trial. In view of a subsisting order granting bail to the Appellant by aCourt of co-ordinate jurisdiction, did the trial Court have the jurisdiction to vary the said order, or to sit on appeal over that order? Theposition of the law as stated by this Court in Witt & Busch Ltd v. Dale Power Systems Plc (2007) 17 NWLR (Pt. 1062) 1 at 25, para E.F.G.(2007) 5 ??? 6 SC 121, per Ogbuagu, JSC, is as follows:?????? in the absence of statutory authority or except where the judgment or order is a nullity, one Judge has no power to set aside orvary the order of another Judge of concurrent and co-ordinate jurisdiction. ??? that rationale or reason for this is that there is only oneHigh Court in a State.???A judgment or, Ruling of a coordinate jurisdiction can only be set aside by another Judge of same Court on application of the personagainst whom it was made under certain stringent conditions stated in the case of CHIEF EMMANUEL BELLO VS INEC & ORS 2010 3SCM1 AT 28H TO 29 A ??? B PER MAHMUD MOHAMMED JSC NOW CJN who said:???I may observe at this stage that the misconceived course taken by the Respondent in this case is similar to the course adopted bythe Plaintiffs in the case of Okoye v. Nigerian Construction and Furniture Co. Ltd (1991) 6 N.W.L.R (Pt. 199) 501 at 332 where this courtheld that failure to join as party a person who ought to have been joined will not render the proceedings a nullity on ground of lack ofjurisdiction or competence of the Court. Akpata JSC specifically stated the position as follows:???In my view failure to join a necessary party is an irregularity which does not affect the competence or jurisdiction of the Court toadjudicate on the matter before it. However, the irregularity may lead to unfairness which may result insetting aside the judgment on appeal. Setting aside the judgment or making an order striking out the action or remitting the action forretrial in such circumstance that will not be for lack of jurisdiction or on the basis of the judgment being a nullity. The trial itself isincompetent to review the judgment, more so another Court of co-ordinate jurisdiction.???On page 54 55A ADEKEYE, JSC also said:???A Court has an inherent power to set aside its judgment or order where it has become so obvious that it was fundamentally defectiveor given without jurisdiction. In such a case, the judgment or order given becomes null and void, thus liable to be set aside.Okafor v. Okafor (2000) 11 NWLR Pt 677 pg. 21 Skenconsult (Nit) Ltd v. Ukey (1981) 1 SC pg. 6. Obimnure v. Erinosho (1966) 1 ALL NLRpg 250. The power of a Court to set aside its judgment is statutory. The Court does not have power to set aside its judgment without astatutory provision enabling it to do so. A Court of concurrent or coordinate jurisdiction can set aside the judgment or order of anotherCourt in circumstance where-(a) The writ or application was not served on the other party or(b) The action was tainted with fraud or the Court lacks jurisdiction to entertain the action. Lawal v. Dawada (1972) 8-9 SC pg. 83???Underlined mine.Recently in the case of MR. AKINFELA FRANK COLE VS MR. ADIM JIBUNOH & ORS (2016) 4 NWLR (PART 1503) 499 at 521 C ??? H theapex Court in the land reaffirmed the position stoutly when GALADIMA, JSC said:???A Court of co-ordinate jurisdiction has no constitutional power to sit as an appellate Court in another case and review and/oradjudicate on a decision or Order made by another Court of the same hierarchy. See: Chief Gani Fawehinmi v. A. G., Lagos State (No. 1)(1989) 3 NWLR (Pt. 112) 707 at 724, paras. C ??? D where the Court held:???The presumption has always been that the decisions of a superior Court are within jurisdiction and are correct until the contrary isproved. It seems to me that even if the decision of the superior Court is a nullity, the only proper way of challenging such decision mustbe by an application before the very Court which tried the case or by an application to the appropriate appellate Court even if thejudgment of Longe, J. were a nullity the proper way to set it aside is by an appeal not be review before a Court of co-ordinatejurisdiction??? it seems to me that, in view of the provision of the Constitution, which carefully shares jurisdiction to the variousCourts??? Only the Court vested with the particular jurisdiction can interfere with the decision of another Court.???The ruling of the trial Court that it has jurisdiction to entertain the present suit is due to the averments of fraud contained in thestatement of claim, whereas the substance or issue in the suit is a challenge and a disguise to set aside the decision and auction carriedout by virtue of an order made by a Court of coordinate jurisdiction in the earlier suit No. ID/1082/90. This is not proper."Per IGE, J.C.A.(Pp. 20-27, Paras. F-D) - read in context
(201
6) LP
ELR-40
969(
CA)
PETER OLABISI IGE, J.C.A. (Delivering the LeadingJudgment): This is an appeal against the decision of ImoState High Court contained in the Ruling of HonourableJustice NONYE OKORONKWO now JCA, delivered on 30thday of June, 2009 by which he set aside the Order ofCertiorari made by the same Imo State High Court CORAMCHIOMA NWOSU IHEME J. now JCA.
The Order of Certiorari aforesaid was made by HON.JUSTICE CHIOMA NWOSU IHEME in Sui t No.HOW/66M/2001. The Order reads:�BETWEEN:THE STATEEX PARTECHIEF ODOHA IHIA ==== APPLICANTFIDELIS ELUMAANDTHE CUSTOMARY COURT, OWERRI URBAN �RESPONDENT
ORDER OF COURTUpon reading through the Motion on Notice forcertiorari filed on 29/10/02 and the supportingaffidavit sworn to by Chief Odioha Ihia, the 1stApplicant and after hearing J. C. Uwazuruonye ofCounsel for the Applicant and whereas theRespondent neglected to appear in Court or file anyCounter Affidavit though it was duely served.
THE COURT ORDERED AS FOLLOWS:(1) That the ruling of the President of the CustomaryCourt of Appeal while sitting alone on 26/2/96 be andis hereby
1
(201
6) LP
ELR-40
969(
CA)
declared void and unconstitutional.
(2) That the order of the Customary Court, Owerri
Urban in Suit No. CC/OU/59/92 delivered on 9/4/96
which derived its authority and jurisdiction from the
void and unconstitutional ruling of 26/2/96 made by
the President of the Customary Court of Appeal be
and is hereby declared a nullity.
(3) That the Order of the Customary Court, Owerri
Urban in Suit No. CC/OU/59/92, delivered on 9/4/96
including the Order of the Court dismissing the case
of the Applicants in the same Suit CC/OU/59/92 is
accordingly removed to this Court for the purpose of
being quashed.
(4) That the Order of the Customary Court, Owerri
Urban and the Order dismissing the case is hereby
quashed.
ISSUED AT OWERRI UNDER THE SEAL OF COURT
AND HAND OF THE PRESIDEING JUDGE THIS 19TH
DAY OF FEBRUARY, 2002.
CHIOMA NWOSU IHEME MRS.JUDGES. C. NJOKUASSISTANT CHIEF REGISTRAR.�
By a Motion on Notice dated at Owerri the 1st day ofFebruary, 2007 and filed same date. The Applicant�s:1. NWAUGO2. JULIUS OSUIGWE(For themselves and on behalf of Umuagu family of Obittito set aside
2
(201
6) LP
ELR-40
969(
CA)
the Ruling and Order of the Honourable Court made on the
20th February, 2003 for infringing on their Fundamental
Right to fair hearing)
Prayed the High Court of Imo State for the following Order
viz:
“Setting aside the Ruling and Order of the
Honourable Court delivered and made on the 19th
day of February, 2003 in that same was made in
breach of the Constitutional Right to fair hearing as
guaranteed under the Constitution.”
The ground upon which the application was founded is asfollows:
“a) The Ruling and Order sought to be set aside weremade in a matter affecting the Legal interests of theApplicants without hearing the Applicants contrary toSection 36(1) of the 1999 Constitution.”
The application was supported by 17 paragraph Affidavit towhich three Exhibits were attached. The Appellant filed 21paragraph Counter Affidavit to which an Exhibit wasattached.
The Motion was duly heard after which a considered Rulingwas delivered by NONYE OKORONKWO J., on 30th day ofJune, 2009. The Learned trial Judge made the followingfindings and set aside the Order of Certiorari earlier madeby the Court
3
(201
6) LP
ELR-40
969(
CA)
(NWOSU- IHEME J.) thus:
“In this case, the applicants in this Motion to set
aside the Certiorari Proceedings were not joined by
the applicants in the Certiorari Proceedings even
when they were defendants in the Customary Court in
Suit No. CC/OW/59/92 in which an Order of dismissal
of the suit was made in their favour neither was the
President Customary Court of Appeal joined even
when the Order of transfer made by the President was
the first subject of the Certiorari Proceedings and
Order.
In the Proceedings for Certiorari, the applicants
herein to set aside the Certiorari Proceedings are
necessary Parties because they were the defendants
in the case sought to be quashed by Certiorari as well
as the President of the Customary Court of Appeal
whose Order was also sought to be quashed by the
same Certiorari Proceedings. It is said that a
necessary Party is a person who will not only be
affected by the result of the case but the Court cannot
effectively and completely determine the question it
is called upon to decide without him. See Ige v.
Farinde (1994) 7 NWLR (Pt. 354) 4. I agree and hold
that the applicants herein as well as the President
4
(201
6) LP
ELR-40
969(
CA)
Customary Court of Appeal are necessary parties who
ought to be made parties by the applicants in the
Certiorari Proceedings or by the Court if sufficient
materials have been placed before it.
The Law is that a Proceedings conducted without
joining necessary parties is a nullity and a person
affected thereby has a right to apply to set it aside ex
debito Justitiae. See Okafor V. A.G. Anambra State
(1991) 6 NWLR (Pt. 200) 659, 680.
It is also Law that in such circumstance, the Court
that made the Order can upon a proper application
set it aside. It is not a case of overruling itself or
reviewing its own judgment, No, it is rather like
correcting a fundamental slip or error in the
proceedings. It is like setting aside a judgment
obtained by Fraud. See U.T.C. V Pamotei.
In the final analysis, the judgment of this Court made
on 19th February, 2003 in which the ruling of the
President Customary Court of Appeal of 26/2/96 and
the Order of the Customary Court Owerri Urban of
9/4/96 in Suit No. CC/OW/59/92 were quashed by
Certiorari is hereby set aside.”
The Appellant FIDELIS ELUMA was aggrieved by the Order
setting aside the Certiorari
5
(201
6) LP
ELR-40
969(
CA)
Orders earlier made in his favour and has now appealed to
this Court vide his NOTICE OF APPEAL dated 21st day of
August, 2009 filed on the 24th day of August, 2009 contain
six (6) grounds which without their particulars are as
follows:
“GROUND 1.
The Learned Judge erred in Law in hearing the
application of the Applicants/Respondents to set aside
the Ruling of a Judge of co-ordinate jurisdiction made
on 12th February 2003 when he had no jurisdiction to
do so.
GROUND TWO (2) Error in Law:
The Learned Judge erred in Law in hearing and
g r a n t i n g t h e a p p l i c a t i o n b y t h e
Applicants/Respondent to set aside the Order of
Certiorari made on 19th February, 2003 when they
were not parties to Suit NO. HOW/66M/2001 as filed
by the 1st Respondent/Appellant in 2001.
GROUND THREE (3):- Error of Law:
The Learned Judge erred in law when he held as
follows:-
“In the proceedings for Certiorari, the applicants
herein to set aside the Certiorari proceedings are
necessary parties because they were the defendants in
the case sought to be questioned by Certiorari as well
as the President of the Customary Court of Appeal
whose Order was
(201
6) LP
ELR-40
969(
CA)
also sought to be quashed by the same Certiorari
Proceedings.”
GROUND FOUR (4):- Error in Law:
The Learned Judge erred in Law when he assumed
jurisdiction to set aside the Order of Certiorari made
on 19th February, 2003 by holding as follows:-
“The Law is that a proceeding conducted without
joining necessary parties is a nullity and a person
affected thereby has a right to apply to set it aside,
exdebito Justiciae. It is also the Law that in
circumstance the Court that made the Order can upon
a proper application set it aside. It is not a case of
over ruling itself or reviewing its own judgment. No it
is rather like correcting a fundamental slip or error in
the proceedings. It is like setting aside a judgment
obtained by fraud.”
GROUND FOUR (5):- Error in Law:
The Learned judge erred in Law in setting aside the
Order of Certiorari made by Hon. Justice Chioma
Nwosu-Iheme on 19, February 2003 when the said
judgment was neither exhibited before the Judge nor
the proceedings before the said judgment.
GROUND SIX (6):-Error in Law:
The Learned Judge erred in law in setting aside the
judgment of learned Justice
7
(201
6) LP
ELR-40
969(
CA)
Chioma Nwosu-Iheme (now JCA) made on 19th
February 2003 without considering the case of the 1st
Respondent/Applicant in both his Counter Affidavit
and Address before the Court thereby breaching his
right to fair hearing.”
The Appellant filed his Appellant’s Brief of Argument dated
17th day of August, 2012 on 27th day of August, 2012. The
said Brief was deemed properly filed on 22nd day of
September, 2014 while, the 1st Respondent’s Brief of
Argument dated 12th day of October, 2015 was filed on 3rd
day of February, 2016. It was deemed properly filed on 3rd
day of February, 2015. The Appellant filed Appellant’s
Reply Brief dated 8th day of February, 2016 was filed on
the same date.
The appeal was heard on the 11th day of May, 2016 when
the Appellant’s Learned Counsel to the Appellant and 1st
Respondent’s Learned Counsel adopted their Briefs of
Argument.
The Learned Counsel to the Appellant J.C. UWAZURUONYE
Esq., distilled three issues numbered A. B and C for
determination. They are as follows:
(a) Whether the Court below was right in setting
aside the Ruling of a Judge of co-ordinate jurisdiction
when the
8
(201
6) LP
ELR-40
969(
CA)
Court below has no jurisdiction to do so.
(b) Whether the Court below was right in hearing and
granting the application to set aside the order of
certiorari made on 19th February, 2003 whereas the
Applicants/Respondent were not parties to Suit No.
HOW/66M/2001 and there was no application to join
as a party or even leave to do so, the period of appeal
having elapsed.
(c) Whether the Court below was right in setting
aside the Order of Certiorari made by His Learned
brother Chioma Nwosu – Iheme J. (as he then was)
when neither judgment and/or proceedings was
exhibited before him nor did he consider the case of
the 1st Respondent/Appellant in both his Counter-
Affidavit and Address before the Court.
The 1st Respondent’s Learned Counsel JOE ONYENAKAZI
Esq., formulated five issues for determination viz:
1. Was the Lower Court’s jurisdiction to hear the
application to set aside the ORDER OF Certiorari
affected by the effluxion of time (Ground 1).
2. Was the Lower Court right to hear and grant the
application to set aside the Order of certiorari, when
the applicants WERE not parties to the application for
certiorari, and
9
(201
6) LP
ELR-40
969(
CA)
when they did not make any application for joinder.
(Grounds 2 and 3).
3. Was the Lower Court right to hold that a party,
affected by proceeding from which he was wrongfully
excluded has a right to apply to set it aside ex debito
justitiae. (Ground 4).
4. Was the learned Trial Judge right to set aside the
Order of Hon. Justice Nwosu there (as she then was)
when the judgment and proceedings were not
produced? (Ground 5).
5. Was the Appellant denied fair hearing in the Lower
Court.
The appeal can be determined on the questions formulated
by the Appellant.
ISSUE ONE (A)
Whether the Court below was right in setting aside
the ruling of a Judge of Co-ordinate jurisdiction when
the Court below has no jurisdiction to do so.
(GROUNDS 1 and 4).
The Learned Counsel to the appellant J. C. Uwazuruonye
Esq., contended that the legal fulcrum upon which the
entire matter revolves is a question of jurisdiction. That
there has been pervasive presence of the absence of
jurisdiction in the conduct of the entire proceedings leading
to the certiorari proceedings and Ruling of the Court below
on appeal to this Court. The Learned Counsel to the
10
(201
6) LP
ELR-40
969(
CA)
appellant traced the matters leading to the certiorari
proceedings. That on 26/2/96 the president of Customary
Court of Appeal Imo State sat alone as a Court and gave a
Ruling dismissing Appellant’s application to that Court for
the transfer of Suit No. CC/OU/59/92 to another Customary
Court in Imo State and also made an Order of accelerated
hearing of the Suit before the 2nd Respondent herein. That
based on the Ruling of the President of Customary Court,
the 2nd Respondent, that is the Customary Court Owerri
Urban on 9/4/96 made an order dismissing Suit No.
CC/OU/59/92 in which Appellant herein was one of the
Plaintiffs.
He contended that the President of Customary Court of
Appeal cannot sit alone and take decision on a matter in
view of Section 248 of the 1979 Constitution, which says
Customary Court of Appeal will be duly constituted if
consists of at least three Judges of that Court.
That it was upon the lack of jurisdiction on the part of the
President of Customary Court and on the part of Customary
Court Owerri Urban that relied on the Ruling of the
President of Customary Court dismissing Appellant’s case,
that the Appellant applied
11
(201
6) LP
ELR-40
969(
CA)
for order of certiorari which was granted by Hon. Justice
Chioma Iheme-Nwosu on 19th February, 2003.
That the application of the 1st Respondent to set aside the
order of certiorari was made on 1st February, 2007, that is
four years after the ruling of IHEME NWOSU, J, of
19/2/2002. The Learned counsel to Appellant contended
that even if it is taken for granted that they could apply to
set aside the order of certiorari, then 1st Respondent must
in accordance with Orders 2 Rule 2(1) and 22 Rule 5 of the
Imo State High Court (Civil Procedure) Rules 1988 which
was in use at the time apply for extension of time for leave
to appeal if they failed to apply within six weeks after the
order sought to be set aside was made. That the Rules
enjoined them to apply for the extension of time within a
reasonable time but in this case they did not do so even
though they were hopelessly out of time.
That the Lower Court therefore lacked the jurisdiction to
entertain the application of the Applicants for setting aside
of order of certiorari. He relied on the case of SAUDE VS.
ABDULLAHI (1989) 4 NWLR (PART 116)387 at 422
and CHUKWUOGOR VS CHUKWUOGOR (2006) 7
NWLR (PART
12
(201
6) LP
ELR-40
969(
CA)
979) 302.
That where the law prescribes the manner of doing a thing
as a precondition for the performance of another, failure to
follow the procedure laid down will render subsequent act
avoid. He strongly submitted that the Learned trial Judge
had no jurisdiction to set aside the certiorari order.
In response to the above, submissions, J. M. E. Onyenakazi
Esq. for 1st set of Respondent stated that a cursory look at
grounds 1 and 4 of the Notice of Appeal did not reveal any
mention of Order 22 Rule 5 and Order 2 Rule 2(1). That non
compliance with Order 22 Rule 5 and 2(1) did not form part
of Appellant’s complaint. That Appellant cannot extend the
scope of grounds of appeal vide Brief of Argument. That
particulars of error can also not be used. That the issue of
the said Rules of court were not raised at the Lower Court
and that they now border on raising fresh issue without the
leave of this Court. He relied on the cases of UDOAKA VS
ASUGUO (2008) 9 NWLR (PART 1091) 15 at 25H and
OLORUNTOBE – OJU VS. ABDULRAHEEM (2009) 13
NWLR (PART 1157) 83 at 136 D.
That the submission that the 1st Respondents ought to have
approached the Court
13
(201
6) LP
ELR-40
969(
CA)
vide an appeal lacks substance and merit. That it is trite
law that any person affected by an order, that he considers
a nullity has the right ex debito justitiae to approach the
Court that made the order to reverse same relying on
SKEN-CONSULT V. UKEY (1981) 1 SC 6 and EKE V.
OGBONDA (2006) 18 NWLR (PT 1012) 506 at page
526 A – D.
That this is in addition to any right of appeal which the
person may also have. That the person involved has right to
choose any of the two options available to him. That if he
chooses alternative remedy to an appeal, he must wait until
time for appeal has expired. He cited and relied on ACB
PLC VS. NWAIGWE (2011) 7 NWLR (PT. 1243) 380 at
397 A – C.
That the Appellant excluded the 1st set of Respondents
from proceedings affecting their interest and that the
purpose was to steal a match and took undeserved
advantage of 1st set of Respondents. That they were right
in going to Imo High Court to complain about infringement
of their right to fair hearing that the appeal has nothing to
do with jurisdiction. He relied on the case of MADUKOLU
VS. NKEMDILIM (1962) 1 SCNLR 341 to contend that
the Appellant complaint did
14
(201
6) LP
ELR-40
969(
CA)
not fall within the conditions stipulated in that case to show
lack of jurisdiction on the part of the trial Judge.
The Respondents are of the view that on the whole the
Lower Court was right to hear the application brought
before it as all conditions necessary to ground jurisdiction
were present. He relied on the case of ENYINNAYA
ONUEGBU & ORS V. GOV. OF IMO STATE unreported
CA/OW/215/2011 and SS NIG LTD. VS. USHIE (2009)
6 NWLR (PART 1166) 158 at 166 E.
He urged the Court to resolve the issue against the
Appellant.
Now pursuant to Section 270(1) and 2 of the 1999
Constitution there is only one High Court for each of the
states in the Federation of Nigeria whose jurisdiction is
shared by all JUDGES of the said High Court in the states
notwithstanding that there are various Divisions of the
High Court in each of the states in the country. Thus any
Ruling, decree, judgment or order made by any of the
Judges of the High Court of Imo State of Nigeria remains
the Ruling, decree, judgment or Order of Imo State High
Court. They remain sacrosanct or extant until set aside by
an Appellate/Court. See SHELL PETROLEUM
DEVELOPMENT COMPANY NIGERIA LTD
15
(201
6) LP
ELR-40
969(
CA)
VS. CHIEF TIGBARA EDAMKUE & ORS (2009) 14
NWLR (PART 1160) 1 at 25 where OGBUAGU JSC said: -
“I am aware there is only one High Court in a State
with Judicial Divisions, created for administrative
convenience or purposes. The Judges of the Federal
High Court sit in different States or separate Courts
as in the Federal Capital Territory. Both Courts are
bound by one Statutory Rule of Court. See: the cases
of S. O. Ukpai v. Okoro & Ors.
And on pages 27 F – G of the report his Lordship said:
“I note in fact, that the said Orders of Sanyaolu, J.,
made on 7th February, 1995, amending the capacities
the respondents prosecuted both suits, were not
appealed against. The effect is that those Orders
subsist in law. See: the case of Chief Ogunyade v.
Oshunkeye & Anor. (2007) 15 NWLR (Pt. 1057) 218 @
257 cited and relied on by the respondents their brief
(it is also reported in (2007) 7 SCNJ 170).
In the concurring Judgment of Omoghen, JSC in the
case of Chief Ogunyade v. Oshunkeye & Anor. (2007)
15 NWLR (Pt. 1057) 218 @ 257, cited and relied on it
paragraph 3.3 (6) at page 7 of the respondent’s brief,
His
16
(201
6) LP
ELR-40
969(
CA)
Lordship stated inter alia:
“…as the Law is settled that any point(s) of law or
facts not appealed against is deemed to have been
conceded by the party against whom it was decided
and that the said point(s) remain(s) valid and binding
on the parties.”
And on pages 28 F – H to 29 A His Lordship said:
“However, I am aware and concede on this also
settled, that no Judge can or is entitled to reverse,
vary or alter the Order or decision of another Judge of
co-ordinate jurisdiction except on issue of
jurisdiction. See: the cases of Akporue & Anor. V.
Okei (1973) 12 S. C. 137; (1973) 3 ECSLR 1010 @
1014; Orewere & Ors. V. Abiegbe & Ors. (1973) 3
ECSLR 1164 @ 1167 – that the proper action is to go
on appeal; National Insurance Corporation of Nigeria
v. Power Industrial Engineering Co. Ltd. (1990) 1
NWLR (Pt. 129) 697 @ 707 C. A. – per Akpata. JCA (as
he then was). In other words, in the absence of
statutory authority, one Judge has no power to set
aside or vary the order of another Judge of concurrent
and co-ordinate jurisdiction. See: the cases of
Amanambu v. Okafor (1966) 1 ALL NLR (Pt. 1) 475
(201
6) LP
ELR-40
969(
CA)
cited in the case of Wimpey (Nig.) Ltd. & Anor. V.
Alhaji Balogun (1986) 3 NWLR (Pt. 28) 324 @ 339.
This is especially so when such Order has been
entered or drawn up.”
The Learned trial Judge was in serious error in granting the
relief sought by the 1st set of Respondents upon their
motion dated and filed 1st February, 2007, thereby setting
aside and vacating the Order of certiorari made by the
Honourable Justice CHIOMA NWOSU – IHEME (MRS)
made on 19th day of February, 2003. The said Honourable
Justice NWOSU – IHEME had within her jurisdiction
granted and made the said Orders in favour of the
Appellant as ealier on reproduced in this judgment:
The Orders made are within the supervisory jurisdiction of
the Honourable Justice NWOSU – IHEME (Now JCA) as
provided under Section 272(2) of the 1999 Constitution
which provides:
“272 (2) the reference to civil or criminal proceedings
in this section includes a reference to the
proceedings which originate in the High Court of a
State and those which are brought before the High
Court to be dealt with by the Court in the exercise of
its appellate or supervisory
18
(201
6) LP
ELR-40
969(
CA)
jurisdiction.”
See Hon. Ehioze Egharevba vs. Hon. Crosby Osadolor
Eribo & Ors (2010) 9 SCM 121 at 137 C – E per
ADEKEYE JSC who said:
“Ordinarily our laws by virtue of Section 272 (2) of
the 1999 Constitution our High Courts have the
power to review administrative determinations of
inferior tribunals, in that the High Court has an
inherent jurisdiction to control all inferior tribunals
not in an appellate capacity, but in a supervisory
capacity. That control extends not only to seeing that
it observes the law, but also that the inferior
Tribunals keep within its jurisdiction. The control is
exercised by means of a power to quash any
determination by the tribunal which on the face of it
offends against the law. This power is exercised in
respect of administrative decisions of any inferior
tribunals, on the grounds of illegality or procedural
impropriety or irrationality. Okeahialam v. Nwamara
(2003) NWLR pt. 835 pg. 597.”
The Orders made by Honourable Justice Nwosu – Iheme
cannot therefore be said to be a nullity on the unfounded
ground that the Ruling and the Order-sought to be set
aside, according to 1st set of
19
(201
6) LP
ELR-40
969(
CA)
Respondents, were made in a matter affecting the legal
interests of the Applicants without hearing Applicants
contrary to Section 36(1) of the 1999 Constitution.
The 1st sets of Respondents did not exhibit the Certified
True Copies of the Originating processes and other
processes filed by the Appellants before Honourable Justice
Nwosu – Iheme but exhibited to 1st Set of Respondents
motion as Exhibit GIII, the Orders made. There is nothing
in the Orders therein contained showing that any of the
orders was targeted against the 1st set of Respondents.
Their rights and obligations were not shown to have been
affected. The 1st Respondents were/are not parties to the
proceedings and their rights as to whether they own or not
owned the landed property in Litigation at the Customary
Court was not before the High Court.
In any event if they seriously believed that the orders made
affected their legal interest the avenue open to them is not
and was not to take out a motion after four years to have
the orders of Nwosu – Iheme, J. set aside. The Order of
Honourable Justice Nonye Okoronkwo (Now JCA) which set
aside the order of NWOSU-IHEME,J., on the
20
(201
6) LP
ELR-40
969(
CA)
ground that 1st Respondents were necessary party who
were not joined to the certiorari proceedings was made
without jurisdiction. As a Judge of coordinate jurisdiction
with Nwosu – Iheme, J., now JCA he lacked the vires or
jurisdiction to set aside the orders made on 19th day of
February, 2003. It tantamount to sitting as appellate Court
over the judgment validly given within the jurisdiction of a
brother High Court Judge. See
(1) NATIONAL HOSPITAL, ABUJA & ORS VS.
NATIONAL COMMISSION FOR COLLEGES OF
EDUCATION & ORS. (2014) 11 NWLR (PT. 1418) 309
AT 334 D – G PER YAHAYA, JCA WHO SAID:
“However, if the understanding of the Appellants is
that their appeal includes this aspect, then I hold that
it must fail because the trial Court had no jurisdiction
to entertain the issues already decided and
pronounced upon by the Federal High Court, Kaduna.
The trial court was right that it could not grant the
reliefs sought by the Appellants/Plaintiffs, since they
bear directly on the judgment and orders of the
Federal High Court, Kaduna. Furthermore, to grant
the reliefs sought by the Appellants/Plaintiffs, would
amount to the trial Court
21
(201
6) LP
ELR-40
969(
CA)
sitting on appeal and reversing the judgment of the
Federal High Court, Kaduna. That would be wrong
because a Court of coordinate jurisdiction cannot sit
on appeal over its counterpart. The trial court had no
jurisdiction to entertain the suit of the Appellants.
Also tied to this, is the fact that in law, any interest
based on a challenge (cannot appeal) of a decision of
a competent Court which has not been appealed
against, cannot be a valid interest enough, to ground
locus standi. It was a wooly contention on the part of
the Appellants to ground locus standi despite the
unchallenged judgments and Order of the High Court,
Kaduna.”
(2) LAWRENCE S. U. AZUH VS UNION BANK OF
NIGERIA PLC (2014) 11 NWLR (Pt. 1419) 580 at 608
F – H to 609 A – C per KEKERE EKUN JSC who said:
“Where criminal charges are pending against an
accused person, his right to freedom of movement
pending the determination of the case may be
curtailed by the Court seized of the matter or by a
higher Court, depending on the nature of the offence.
By the averment in paragraph 7 of the affidavit in
support of the motion ex-parte, the Appellant had
been granted bail
22
(201
6) LP
ELR-40
969(
CA)
by Court No. 5 of the same High Court. The enrolled
order in respect thereof does not form part of the
record before us. However, it is evident, from the
reliefs sought, that the Respondent was not satisfied
with bail conditions granted by that Court which led
to the institution of the suit that gave rise to this
appeal, whose sole purpose was to have the bail
conditions varied by making them more stringent,
and specifically to ensure that the Appellant
remained within the country for the duration of his
trial. In view of a subsisting order granting bail to the
Appellant by a Court of co-ordinate jurisdiction, did
the trial Court have the jurisdiction to vary the said
order, or to sit on appeal over that order? The
position of the law as stated by this Court in Witt &
Busch Ltd v. Dale Power Systems Plc (2007) 17 NWLR
(Pt. 1062) 1 at 25, para E.F.G. (2007) 5 – 6 SC 121,
per Ogbuagu, JSC, is as follows:
“… in the absence of statutory authority or except
where the judgment or order is a nullity, one Judge
has no power to set aside or vary the order of another
Judge of concurrent and co-ordinate jurisdiction. …
that rationale or
23
(201
6) LP
ELR-40
969(
CA)
reason for this is that there is only one High Court in
a State.”
A judgment or, Ruling of a coordinate jurisdiction can only
be set aside by another Judge of same Court on application
of the person against whom it was made under certain
stringent conditions stated in the case of CHIEF
EMMANUEL BELLO VS INEC & ORS 2010 3SCM 1 AT
28H TO 29 A – B PER MAHMUD MOHAMMED JSC NOW
CJN who said:
“I may observe at this stage that the misconceived
course taken by the Respondent in this case is similar
to the course adopted by the Plaintiffs in the case of
Okoye v. Nigerian Construction and Furniture Co. Ltd
(1991) 6 N.W.L.R (Pt. 199) 501 at 332 where this
court held that failure to join as party a person who
ought to have been joined will not render the
proceedings a nullity on ground of lack of jurisdiction
or competence of the Court. Akpata JSC specifically
stated the position as follows:
“In my view failure to join a necessary party is an
irregularity which does not affect the competence or
jurisdiction of the Court to adjudicate on the matter
before it. However, the irregularity may lead to
unfairness which may result in
24
(201
6) LP
ELR-40
969(
CA)
setting aside the judgment on appeal. Setting aside
the judgment or making an order striking out the
action or remitting the action for retrial in such
circumstance that will not be for lack of jurisdiction
or on the basis of the judgment being a nullity. The
trial itself is incompetent to review the judgment,
more so another Court of co-ordinate jurisdiction.”
On page 54 55A ADEKEYE, JSC also said:
“A Court has an inherent power to set aside its
judgment or order where it has become so obvious
that it was fundamentally defective or given without
jurisdiction. In such a case, the judgment or order
given becomes null and void, thus liable to be set
aside.
Okafor v. Okafor (2000) 11 NWLR Pt 677 pg. 21
Skenconsult (Nig) Ltd v. Ukey (1981) 1 SC pg. 6.
Obimnure v. Erinosho (1966) 1 ALL NLR pg 250. The
power of a Court to set aside its judgment is
statutory. The Court does not have power to set aside
its judgment without a statutory provision enabling it
to do so. A Court of concurrent or coordinate
jurisdiction can set aside the judgment or order of
another Court in circumstance where-
(a) The writ or application was not served on
25
(201
6) LP
ELR-40
969(
CA)
the other party or
(b) The action was tainted with fraud or the Court
lacks jurisdiction to entertain the action. Lawal v.
Dawodu (1972) 8-9 SC pg. 83”
Underlined mine.
Recently in the case of MR. AKINFELA FRANK COLE VS
MR. ADIM JIBUNOH & ORS (2016) 4 NWLR (PART
1503) 499 at 521 C – H the apex Court in the land
reaffirmed the position stoutly when GALADIMA, JSC said:
“A Court of co-ordinate jurisdiction has no
constitutional power to sit as an appellate Court in
another case and review and/or adjudicate on a
decision or Order made by another Court of the same
hierarchy. See: Chief Gani Fawehinmi v. A. G., Lagos
State (No. 1) (1989) 3 NWLR (Pt. 112) 707 at 724,
paras. C – D where the Court held:
“The presumption has always been that the decisions
of a superior Court are within jurisdiction and are
correct until the contrary is proved. It seems to me
that even if the decision of the superior Court is a
nullity, the only proper way of challenging such
decision must be by an application before the very
Court which tried the case or by an application to the
appropriate appellate Court even if the judgment
26
(201
6) LP
ELR-40
969(
CA)
of Longe, J. were a nullity the proper way to set it
aside is by an appeal not be review before a Court of
co-ordinate jurisdiction… it seems to me that, in view
of the provision of the Constitution, which carefully
shares jurisdiction to the various Courts… Only the
Court vested with the particular jurisdiction can
interfere with the decision of another Court.”
The ruling of the trial Court that it has jurisdiction to
entertain the present suit is due to the averments of
fraud contained in the statement of claim, whereas
the substance or issue in the suit is a challenge and a
disguise to set aside the decision and auction carried
out by virtue of an order made by a Court of
coordinate jurisdiction in the earlier suit No.
ID/1082/90. This is not proper.”
The Appellant’s Learned Counsel is also on a solid ground
when he opined that the 1st set of Respondents did not
even meet the conditions for setting aside the judgment of
Nwosu – Iheme J., assuming they could even apply to set it
aside in that they failed to comply with Order 22 Rule 5 and
Order 2 Rule 2(1) of the Imo Sate High Court (Civil
Procedure) Rules 1988
27
(201
6) LP
ELR-40
969(
CA)
which was the extant Rule at the material time.
The judgment/Orders made by Nwosu – Iheme J. remain
subsisting and binding on the parties concerned by the
Orders until they are set aside on appeal. See:
ALHAJI M. B. BUHARI AWODI & ANOR VS MALLAM
SALU AJAGBE (2014) 12 SCM (PT. 2) 181 at 195 F per
OKORO, JSC who said:
“As at the time of writing this judgment, there is no
appeal against the findings of the Court below quoted
above, the effect is that both parties are bound by the
said finding of the Lower Court.”
Issue 1 is resolved in favour of the Appellant.
I will take Issues 2 and 3 together.
ISSUE 2(B)
ISSUE 3 (C)
The bone of contention under Issue 2 is whether the Lower
Court was right in setting aside the Order of Certiorari
made on 19-2-2003 when the 1st set of Respondents were
not parties to Suit HOW/66M/2001.
On what makes a person a necessary party the Learned
Counsel to the Appellant relied on the Case of GREEN VS.
GREEN (2001) F.W.L.R. (Pt. 76) 795. That Learned trial
Judge misconstrued the scope and essence of a Writ of
Certiorari which led, according to Appellant the decision
that
28
(201
6) LP
ELR-40
969(
CA)
the 1st set of Respondents were denied fair hearing. He
relied on the Case of NWAOBOSHI VS. MILAD, DELTA
STATE (2003) 1 NWLR (PART 831) 305 at 318.
He submitted that Writ of Certiorari does not lie against
individuals or against the executive acts and so does not
avail the Applicants/Respondents to contend that the
Certiorari Proceedings in Suit No. HOW/66M/2001 denied
them of fair hearing and on account of which they could
apply to have the Order of NWOSU IHEME, J., set aside. He
submitted that non joinder or failure of parties or
intervener to apply for joinder will not be fatal to the
proceedings. He urged this Court to resolve Issue 2 in
favour of Appellant.
On Issue 3 the Learned Appellant Counsel contended that
since by the findings of the Lower Court the said Court on
page 49 of the record of appeal that the grounds upon
which the application for Certiorari was brought were not
given in this proceedings neither was the judgment
delivered in the Certiorari Proceedings included in this
present proceedings, the Learned Counsel for the appellant
wondered upon what materials did the trial Court
(Okoronkwo J.) anchored his decision to set aside the
29
(201
6) LP
ELR-40
969(
CA)
judgment of his Learned brother.
That the trial Judge also failed to give any consideration to
the Counter Affidavit of the Appellant against the Motion to
set aside and the address of Learned Counsel to Appellant.
He finally urged this Court to hold that the 1st set of
Respondents ought to have applied to be joined as
interested party before applying for the Ruling to be set
aside since the judgment of NWOSU IHEME J., was not a
default judgment.
In response to Issue No. 2, the Learned Counsel to the 1st
set of Respondents submitted that the submissions of
Appellant’s Learned Counsel are utterly misplaced. That
the reason while the 1st set of Respondents sought to
quash the Order of Certiorari was because they were not
made parties because the proceedings were conducted in
breach of fair hearing and 1st set of Respondent’s right to
fair hearing having been breached gave right to 1st set of
Respondents to have the Order set aside as a matter of
course.
He cited and relied on the cases of:
1. ANPP V. INEC (2004) 7 NWLR (Pt. 871) 36.
2. OKAFOR V. AG. ANAMBRA STATE (1991) 6 NWLR
(PT. 200) 659 at 680.
3. IYOHO VS. EHIONG
30
(201
6) LP
ELR-40
969(
CA)
(2007) 11 NWLR (PT. 1044) 31.
4. ANAEKWE VS. UMEANO (2009) 5 NWLR (Pt. 1135)
419.
That this is not a case of mere non-joinder but a case of
breach of the constitutional requirements of fair hearing.
That the case of GREEN VS. GREEN (1987) 3 NWLR
(Pt. 61) 480 is unhelpful to the Appellant.
On Issue 3 as to whether the Learned trial Judge was right
in setting aside the Order of Certiorari when the judgment
and proceedings relating thereto were not produced, the
Learned Counsel to the 1st set of Respondents contended
that the Appellant did not cite a single case to support his
submissions. He again stated that the only case cited is
DAGACI OF DERE V. DAGACI OF EBWA (2006) 7
NWLR (Pt. 979) 382 which he said has nothing to do with
Appellant’s argument. That the Law enjoins a person who
desires the Court to exercise its discretion on his behalf
must place sufficient materials before the Court. He relied
on the case of BAMAIYI VS. BAMAYI (2005) 15 NWLR
(Pt. 948) 334. According to the Learned Counsel to 1st set
of Respondents they produced to the Lower Court the
following:
1. Particulars of Claim in the Customary Court
showing them to be
31
(201
6) LP
ELR-40
969(
CA)
parties.
2. They produced the Civil Summons to them and
transfer Order all showing that they have interest in
the Litigation.
3. That they finally produced the Order of Certiorari
by which the Order dismissing Appellants Case in the
Customary Court was quashed.
He concluded that the 1st set of Respondents have thereby
produced enough materials before the Lower Court to
enable it exercise its undoubted discretion in favour of the
1st set of Respondents.
It has been decided in numerous cases that failure or non
joinder of a party to a proceeding will not vitiate the
proceeding and cannot render it incompetent as it does not
affect the competence of the court concerned to adjudicate
on the matter or issues in controversy in the action See the
case of UNION BEVARAGES V. PEPSI COLA (1994) 2
SCNJ 157 at 173 where the Supreme Court per ADIO JSC
said
“Proceedings will not be a nullity on the ground of
lack of competence of the Court or lacks of
jurisdiction where a Plaintiff fails to join a party who
ought to be joined. In such a case, the Court may deal
with the matter in controversy so far as regards the
rights and interests of the
32
(201
6) LP
ELR-40
969(
CA)
parties actually before it.”
The person to be sued must in the real sense of it be a
necessary party whose presence is actually needed to
enable the Court to effectually and completely determined
all issues in controversy in the case.
I am of the view that the 1st set of Respondents were not at
all necessary parties in the Certiorari Proceedings which is
targeted against the excess of jurisdiction or lack of it of
the Customary Court and the President of the Customary
Court of Appeal. The Orders contained in the decision of
NWOSU IHEME J., do not affect the rights and obligations
of the 1st set of Respondents.
I agree with the submissions of the Learned Counsel to the
appellant to the effect that 1st set of the Respondents were
not and are not necessary parties in the certiorari
proceedings and that if the Respondents feel aggrieved by
the Orders of NWOSU – IHEME J they have their right in
appeal against the decision and not for setting aside of the
Orders of NWOSU IHEME J, which were made within the
jurisdiction conferred by the law and the Constitution of the
Federal Republic of Nigeria 1999.
The proceeding in contest is
33
(201
6) LP
ELR-40
969(
CA)
within the penumbra of prerogative writs and not ordinary
Civil Proceedings. It is the vires of the Customary Court to
hear the land matter and the power of transfer of the case
as exercised by the President of Customary of Court of
Appeal that were the subject matter of the certiorari
proceedings and Not for a determination of who owns the
land in dispute between the parties in the Customary
Court.
On Issue 3 as to whether the trial Court could have
adjudicated on the motion brought before it by 1st set of
Respondents in the absence of processes in the certiorari
proceedings before NWOSU – IHEME J., I am of the view
that the Learned trial Judge was not seised of the facts
culminating in the Orders of NWOSU – IHEME J, as stated
by him. Courts of law do not operate in realms of
speculations or conjectures. I am of the view, with profound
respect, to the Learned trial Judge, that he ought not to
have exercised his discretion in favour of 1st set of
Respondents since the materials provided have been shown
to be inadequate.
Issue 3 is also resolved in favour of the Appellant.
The Appellant’s appeal has merit and Appellant’s
34
(201
6) LP
ELR-40
969(
CA)
appeal is hereby allowed.
The Ruling of the Imo State High Court delivered on the
30th day of June, 2009 by Honourable Justice NONYE
OKORONWO is hereby set aside. In its stead an Order is
hereby made dismissing the 1st set of Respondents
MOTION ON NOTICE dated and filed on 1st day of
February, 2007.
The 1st set of Respondents shall pay to the appellant costs
assessed at N30,000.00 (Thirty Thousand Naira).
RAPHAEL CHIKWE AGBO, J.C.A.: I was privileged toread before now the lead judgment of my learned brotherOlabisi Ige, JCA. I agree with him and that the appeal beallowed. Courts of co-ordinate jurisdiction lack thecompetence to overrule each other.I abide by all the consequential orders contained in the leadjudgment.
FREDERICK OZIAKPONO OHO, J.C.A.: I had theopportunity of reading the draft of the judgment justdelivered by my learned brother, PETER OLABISI IGE,JCA. I am in agreement with the reasoning and conclusionsreached in the judgment in allowing the Appeal. I abide bythe consequential orders made thereto.
35
(201
6) LP
ELR-40
969(
CA)
Appearances:
J. C. Uwazuruonye, Esq. with him, I. O Mirikwe,Esq. For Appellant(s)
J.M.E. Onyenakazi, Esq. with him, J. Osuigwe,E s q . f o r 1 s t s e t o f R e s p o n d e n t s ForRespondent(s)
(201
6) LP
ELR-40
969(
CA)
Recommended