Igwe N. A. U. Achebe V. Chief A. C. I. Mbanefo & Anor. (2007)
LawGlobal-Hub Lead Judgment Report
BADA, J.C.A.
By an application dated the 16th day of June 2006 which was filed on the 19th day of June 2006, the 1st defendant/appellant/applicant prayed for the following relief:
“An order staying the execution of the ruling or suspending the operation/legal effect of the order of interlocutory injunction delivered on the 12/4/2006 by Honourable Justice J.C. Nwadi sitting in court No.4, High Court, Onitsha, Anambra State, Nigeria in suit No. 0/109/2005 Chief A.C.E. Mbanefo v. Igwe N.A.U. Achebe & Another, pending the hearing and determination of:
(i) The motion for stay of proceedings filed in this court on the 15/3/2006
Or Alternatively
(ii) The appeal dated 25th day of April 2006 and filed at the lower court on the same day which was received at the Court of Appeal on the 16th day of June 2006.”
The grounds for the relief sought are as follows:
(i) Following a ruling in suit No.O/109/2005 on the 21/7/2005 by Honourable Justice Nwadi the 1st defendant appealed against same by a notice of appeal dated 28/07/2005 and filed on 29/07/2005.
(ii) A motion for stay of proceedings pending the result of the appeal was duly filed on 16/02/06 in the lower court dated 14/2/06.
(iii) On the 8/3/2006 the court dismissed the said motion for stay of proceedings.
(iv) A motion for stay of proceedings was filed in the Court of Appeal on the 17/3/2006 and was pending (to the knowledge of Hon. Justice J.C. Nwadi) when he proceeded to hear the plaintiff’s interlocutory injunction motion.
(v) The court granted plaintiff’s interlocutory injunction on the 12/04/2006.
(vi) Hon Justice J. C. Nwadi in the conduct of suit No. 0/109/2005 aforesaid has not only shown little or no regard for process pending before the Court of Appeal but disregarded Rules of Court and Practice.
In support of the application is an affidavit of 19 paragraphs.
Pertinent paragraphs are 4 to 18 reproduced as follows: –
“4. The plaintiff by a writ of summons challenged the appointment, installation etc of the 2nd defendant as the “ODU OSODI” of Onitsha by the 1st defendant.
- Thereafter an application was filed on behalf of 1st defendant in which in limine objection was raised by the 1st defendant against aspects of the suit touching on competence of the court.
- His Lordship, the learned trial Judge – Nwadi, J. of the Onitsha High Court, Anambra State of Nigeria dismissed the application.
- The 1st defendant/applicant through his counsel duly appealed against the ruling and filed a motion for stay of proceedings before Hon. Justice Nwadi.
- Hon. Justice Nwadi heard the motion for stay and refused same whereupon a further motion for stay of proceedings was filed at the Court of Appeal on 17/3/2006.
- After the ruling on the 8th of March 2006, counsel to the plaintiff sought to move his motion for interlocutory injunction, which was not fixed for that day.
- Immediately counsel for the 1st defendant objected to the hearing of the motion for interlocutory application on the grounds that –
a. The hearing of the motion for interlocutory injunction was not fixed for that day.
b. That on 21/07/2005 learned Senior Advocate counsel for the plaintiff had effectively abandoned/stayed the said motion sine die and elected for expedited hearing of the substantive case.
c. The procedure adopted by the learned trial Judge was wrong.
d. Counsel for the 2nd defendant also objected.
- Without calling on the counsel to the plaintiff/applicant to react to the very material objections raised the learned trial Judge asked counsel for the plaintiff/applicant to move the motion for interlocutory injunction.
- At the end of the submission of counsel to the plaintiff/applicant the defendant’s counsel repeated the earlier objections and added that the defendants have been taken by surprise and should be allowed time.
- Whereupon the learned trial Judge adjourned the matter to 20/03/06 for the defence to reply.
- The defence then brought a 4 prayer motion dated 15/03/2006 and filed on the same day and to be heard on 20/3/06 for the following:
a. Stay of further proceedings
b. Setting aside of proceedings
c. Expunging from the records the proceedings of the 8th day of March 2006.
d. Fixing of the hearing of the motion for intedocutory injunction on a date convenient to and agreed by counsel for all parties and the Honourable Court.
- The court refused to hear the motion mentioned in paragraph 14 supra, dismissed same suo motu and ordered defence counsel to reply to the argument on interim injunction.
- Out of respect for the Legal profession and the Bench, counsel for the 1st defendant proffered a reply and the matter was adjourned for ruling to 27/3/2006.
- On the 20/03/2006 when the presiding Judge adjourned for ruling on the application for interlocutory injunction two separate applications for stay of proceedings (duly served) and brought to the notice of the court were pending at the High Court and Court of Appeal Enugu.
- I was informed by Obiesie Ofodile – of counsel to the 1st defendant, in his Chambers at 31D Awka Road Onitsha Anambra State, on the 14th day of June 2006, and I verily believed him that:
a. The interlocutory order issued by Hon. Justice Nwadi was an exercise carried out without any regard/respect whatsoever to the possible outcome of the application pending in the Court of Appeal.
b. That the order for interlocutory injunction is of no benefit to the plaintiff.
c. That since the installation of the 2nd defendant as the Odu Osodi of Onitsha he has consistently performed all the traditional duties attached to the said title of Odu Osodi.
d. That the plaintiff has for many years before and since the crowning of the 1st defendant as Obi of Onitsha not attended any traditional function either at the Obi’s Palace or in any part of Onitsha.
e. That those who suffer by this order are the people of Onitsha.
f. Unless the order for stay of suspension is made, this court will be faced with a fait accompli.
g. The ends of justice would be served by granting this application.”
The learned senior counsel for the 2nd defendant/respondent did not oppose the application and he did not file any counter affidavit to it.
On the other hand, the learned senior counsel for the plaintiff/respondent even though opposed the application; he did not file any counter affidavit to it.
At the hearing learned senior counsel for the 1st defendant/appellant/applicant relied on the affidavit in support of this application.
He urged this court to grant his application.
In his response, learned senior counsel for the plaintiff/respondent said that he relied on the written address ordered in this matter. He referred to the written address dated 21/9/2006, which was filed on 22/9/2006.
He argued that the lower court had no notice of the application before the Court of Appeal before the order of injunction was made. And he urged that this application should be refused.
Learned senior counsel for the 2nd respondent in his submission stated that the fact that the lower court had knowledge of the pending application before the Court of Appeal for stay of proceedings before the order of injunction was made calls for reprimand. He went further that the plaintiff/respondent should have deposed to a counter affidavit to contradict the fact that the Judge of the lower court had knowledge of the said pending application.
He also stated that there was no order for written addresses in this application and he urged this court to allow the application.
I have to point it out straightaway that the application for stay of proceedings filed in this court on 15/3/2006 is yet to be taken. This court merely granted an order in the interim staying proceeding pending the hearing and determination of the main application. Furthermore, the written addresses ordered on 22/6/2006 were in respect of the application for stay of proceedings dated 15/3/2006 and filed in this court on 17/3/2006.
This present application dated 16/6/2006 which was filed on 19/6/2006 is for an order staying execution of the ruling or suspending the operation/legal effect of the order of interlocutory injunction delivered on the 12/4/2006 by the Judge of the lower court and no order for written addresses was made on it.
At this juncture may I observe that the plaintiff/respondent failed to file counter affidavit to controvert the deposition in the affidavit in support of this application.
It is of course trite law that when in situation such as this, facts are proveable by affidavit and one of the parties deposes to certain facts, his adversary has a duty to swear to an affidavit to the contrary if he disputes the facts. Where, as in this instant case, such a party fails to swear to an affidavit to controvert such facts, these facts may be regarded as duly established. See Attorney General of Plateau State v. Attorney General of Nasarawa State (2005) Vol. 20 WLR page 137, (2005) 9 NWLR (Pt.930) 421; Ajomale v. Yaduat (No.2) (1991) 5 SCNJ page 178, (1991) 5 NWLR (Pt.191) 266; Adamu v. D.F. Akukalia (2005) Vol.12 WLR page 175, (2005) 11 NWLR (Pt.936) 263.
In the instant application it has not been disputed that a motion for stay of proceedings was filed in the Court of Appeal Enugu on 17/3/2006 and was pending to the knowledge of Ron. Justice J.C. Nwadi when he proceeded to hear the plaintiff’s interlocutory motion and granted same on 12/4/2006.
The applicant has been able to satisfy this court on the requirements in an application of this nature, i.e.
(a) that the act complained of was performed while an application was pending before this court and that Hon. Justice Nwadi had notice of it.
(b) that such act was capable of obstructing whatever order this Court might wish to make on this application.
In Mohamed v. Olawunmi (1993) 4 NWLR (Pt. 287) Page 254 it was held among others that –
“where a Judge of the High Court is aware of an application in a higher court like the Court of Appeal in a case before him, but deliberately chooses to ignore it, it is an attitude which borders on judicial impertinence and is an affront to the authority of the Court of Appeal. This is because all the courts established under the Constitution derive their powers and authority from the Constitution and the hierarchy of courts shows the limits and powers of each court. So for an inferior court to defy the authority and powers of a superior court is both undesirable and distasteful. (Vaswani Trading Co. v. Savalakh & Co. (1972) All NLR Part 2 Page 483 referred to.) Per Olatawura, JSC at page 278 paragraph D-E. “The rules of court are made for the orderly conduct of trials. A litigant will be allowed to pursue his rights in so far as he acts within the law and the rules. To deny him that right will be to deny him justice. It is better to await the decision of a higher court in respect of matter pending in the lower Court so as to avoid embarking on an exercise in futility. What is of considerable importance is that there must be respect for the authority of each court. Even if a Judge disagrees with the decision of a higher court, he is constitutionally bound to accord it respect until it is set aside. A lower court should try to avoid defiance of the order or process of a superior court.”
See also – Unipetrol Nigeria Plc. v. Alhaji B.M. Abubarka (1997) 6 NWLR (Pt. 509) page 470.
Ivory Merchant Bank Ltd. v. Partnership Investment Ltd. (1996) 5 NWLR (Pt. 448) Page 362.
In the instant case it is very apparent that what the trial Judge (Hon. Justice J.C. Nwadi) did by proceeding to hear the plaintiff’s interlocutory application and granting same on 12/4/2006 when the application for stay of proceedings was pending in the Court of Appeal to his knowledge with the greatest respect, amounted to Judicial lawlessness.
I also like to emphasise that the type of attitude being complained about is very common in this area, some lower court Judges sometimes throw caution overboard because they see themselves as tin gods and they do things that portray them as having abandoned their role as impartial arbiters. It should be noted that courts have always frowned on such conduct.
In view of the foregoing, this application ought to be allowed.
Accordingly, I allow the application and order as follows:
An order staying the execution of the ruling or suspending the Operation/legal effect of the order of interlocutory injunction delivered on 12/04/2006 by Honourable Justice J.C. Nwadi sitting in Court No.4, High Court Onitsha, Anambra State, Nigeria in suit No.O/109/2005 – Chief A. C. E. Mbanefo v. Igwe N. A. U. Achebe & another is hereby made pending the hearing and determination of the appeal dated 25th day of April 2006 and filed at the lower court on the same day which was received at the Court of Appeal on the 16th day of June 2006.
The 1st defendant/appellant/applicant and the 2nd defendant/respondent are each entitled to costs in this application which is assessed as (N2,500.00) Two thousand Five hundred Naira against the plaintiff/respondent.
Other Citations: (2007)LCN/2198(CA)
