Alhaji Aliko Dangote V. African Petroleum Plc & Ors. (2008)
LawGlobal-Hub Lead Judgment Report
HELEN MORONKEJI OGUNWUMIJU, J.C.A.
This an interlocutory appeal against the ruling of Honourable Justice Lambo Akanbi sitting at the Federal High Court, Lagos Division delivered on the 12th March, 2010. The facts that led to the appeal are as follows:
The 1st-15th Respondents as the Plaintiffs at the trial court, commenced this action by an Originating Summons dated 29th of July, 2009 at the trial court against the Appellant and the 16th -28th Respondents claiming several declaratory reliefs. Along with the originating summons, the 1st -15th Respondents filed an affidavit of urgency, a motion ex parte and a motion on notice for interim and/or interlocutory injunction. The court granted the first two reliefs sought in the motion ex parte and refused reliefs 3, 4 and 5.
The Appellant, as the 11th Defendant at the trial court filed a conditional memorandum of appearance on the 4th of August, 2009 and a notice of preliminary objection challenging the competence of the suit and the jurisdiction of the trial court to hear and determine the suit. The 1st -15th Respondents filed a written address in opposition to the Appellant’s notice of preliminary objection on the 6th of August, 2009. The 16th to 28th Respondents also filed a written address in opposition to the Appellant’s notice of preliminary objection.
The matter came up for hearing on the 4th of August, 2009 before Honourable Justice A.M. Liman who adjourned the matter for hearing on both the Appellant’s preliminary objection and the 1st -15th Respondents’ motion for interlocutory injunction. The court also ordered that the parties should maintain the status quo pending the hearing and determination of the applications.
The Appellant was elected into the office of the President of the Council of NSE at the latter’s Annual General Meeting on the 6th of August, 2009. The 1st -15th Respondents thereafter brought another application dated and filed on the 7th day of August, 2009 praying the court for an Order nullifying, vacating and/or setting aside the said election.
The matter came for hearing on the 11th of August, 2009. Justice Liman ordered that given the nature of the 1st -15th Respondents’ application of 7th August, 2009, it should be taken first and he again adjourned the matter to the 28th of September, 2009. Before the adjourned date, the Appellant brought an application on the 25th of September, 2009 asking the court to stay proceedings and the hearing of the 1st -15th Respondents’ application of 7th August, 2009, pending the hearing of an appeal filed on the 14th of August 2009 against the decision of the trial court on the 11th of August, 2009 on the priority of the applications before it. The 1st -15th Respondents filed a written address against the application dated 5th October, 2009 and filed on the 6th of October.
On the 1st of February, 2010, the trial court per Liman J dismissed the Appellant’s application for stay of proceedings and again adjourned the matter to the 18th of February, 2010 for hearing of the 1st -15th Respondents’ application of 7th August, 2009. The Appellant then brought a petition against the Presiding learned trial judge and the matter was consequently transferred to Justice Lambo Akanbi. After the transfer, the Appellant brought yet another application for stay dated the 5th of March, 2010. The application was taken on the 8th of March, 2010 and on the 10th of March, the trial court again dismissed the application for stay.
The Appellant again brought another application filed on the morning of 10th of March seeking an Order setting aside the orders made on the 4th August, 2009, 11th August, 2009 and 1st of February, 2010. The trial court declined to take the Appellant’s application and instead ruled in favour of hearing the 1st -15th Respondents’ application of 7th August, 2009.
On the 12th of March, the trial court per Akanbi J delivered its ruing nullifying the Appellant’s election of 6th of August, 2009. Being dissatisfied with the ruling, the Appellant has brought this appeal.
The Appellant’s brief was dated the 25th of November, 2010 and filed on the same day. The Appellant’s reply brief to the 1st -15th Respondents’ brief was dated and filed on the 23rd of December, 2010. The Appellant’s reply brief to the 16th-25th Respondents’ brief was dated 19th of May, 2011 and filed on the same day. The 1st -15th Respondents’ brief was dated 9th of December, 2010 and filed on the 15th of December 2010. The 16th -25th Respondents’ brief was dated and filed on the 22nd day of March, 2011 and deemed filed on the 17th of May, 2011. The 28th Respondent’s brief was dated and filed 21st day of March, 2011 and deemed filed on the 17th of May, 2011.
The Appellant’s counsel, Rickey M. Tarfa, SAN, Fola Sowemimo (Mrs.), Andrew M. Malgwi, Esq., M. Bamidele, Esq., Edem D. Andah (Miss), identified four (4) issues for determination as follows:
- Whether the trial court has jurisdiction to entertain the suit
- Whether in the circumstances of this instant case, the trial court was right to hold that the election of the Appellant as the President of the Nigerian Stock Exchange, was a disregard of the Court Order made on the 4th August 2009, when the Order was not specific and did not include a positive order in that regard
- Whether, in the circumstances of this case, the Appellant’s constitutional right to fair hearing was not breached by the trial Court in the hearing and determination of the 1st -15th Respondents’ application dated 7th August 2009
- Whether the trial Court was right to have taken the 1st -15th Respondents’ motion dated 7th August, 2009 while the Appellant’s motion dated 10th March, 2010 was pending before it.
Counsel to the 1st and 15th Respondents, I.O. Aniakor Esq. identified a sole issue for determination as follows:
“Whether given the particular circumstances of this case, the learned trial judge was not right in proceeding, as he so did, to entertain the Plaintiffs’ said Motion on Notice dated the 7th August, 2009 for Orders, inter alia, nullifying the purported election of the Appellant as President of the Council of the NSE; and to determine the same in favour of the Plaintiffs?”
Counsel to the 16th -25th Respondents, P.O Jimoh Lasisi (SAN), Chimezie Victor C. Ihekweazu Esq., Odunze Leokere Esq., Vivian Aigbadon (Mrs.) identified five (5) issues for determination as follows:
- Whether the exercise of jurisdiction by the Lower Court to entertain the 1st -15th Respondents’ Application seeking the nullification of the election of the Appellant can be justified in law under the circumstance, notwithstanding the provisions of Sections 284 and 289 of the Investment and Securities Act, 2007.
- Whether the Lower Court exercised due powers under the law to set aside the election of the Appellant as president of the Nigerian Stock Exchange on the ground that its order made on the 4th day of August, 2009 to maintain the status quo was violated
- Whether in the circumstances of the Suit as constituted before the Lower Court there was any breach of fair hearing by the Court in the hearing and determination of the Application of the 1st -15th Respondents dated 7th August, 2010
- Whether in consideration of the order of the Lower Court dated 4th August, 2009 to maintain the status quo and made before all parties, the Lower Court was right in holding that the said order was violated in the light of established principles of law and materials before the Lower Court.
- Whether the determination by the Lower Court of the Application by the 1st to 15th Respondents dated 7th August, 2009 was justified in law notwithstanding that the Appellant’s Application dated 10th March, 2010 was pending.
Lastly, Counsel to the 28th Respondent, V. Uche Obi and Anthony C. Uwakwe distilled only two (2) issues for determination as follows:
- Whether the lower Court whose jurisdiction and competence is validly challenged to hear the substantive suit was right to have made the order of 12th March, 2010 without first resolving the issue of its jurisdiction being challenged?
- Whether from the pleadings filed in this suit and the relief sought therein together with other processes filed in the suit the lower Court’s order for status quo to be maintained dated 12th March 2010 envisaged the conduct of election by the Nigerian Stock Exchange or the appellant presenting himself for elective position in the 27th Respondent
Before I delve into the issues which are of relevance to this appeal, let me resolve the preliminary objection raised by the Counsel to the 1st -15th Respondents. Learned counsel had contended in the notice of preliminary objection dated 9th of December, 2010 that the entirety of the Grounds of Appeal as contained in the notice of appeal dated 12th of March, 2010 are wholly incompetent and ought to be struck out together with the issues raised therefrom.
Counsel argued that the leave of the trial court was not sought and obtained before the filing of the said Notice of Appeal. Counsel also argued that the grounds of appeal and their particulars are wholly speculative, vague and general and do not emanate from the ruling being appealed against. Counsel submitted that the grounds discloses no reasonable ground of appeal and as such are frivolous and constitute a grievous abuse of court process.
Learned counsel to the 1st -15th Respondents pointed out the content of ground 1 which deals with the issue of jurisdiction. Counsel argued that even though the issue of jurisdiction may be raised at any time even for the first time on appeal, it is settled that a party on appeal cannot, without the prior leave of Court be allowed to canvass a fresh point which was not canvassed before the lower court. Counsel argued that it would be unfair to the trial judge for his judgment to be upturned on a point he was never given an opportunity to rule on. Counsel cited NDIC v. Savannah Bank of Nigeria Plc (2002) 5 WRN 19 at 60; Oshutoba v. Olujitan (2000) 5 NWLR Pt. 655 Pg. 159 at 171.
Counsel also argued that even though the issue of jurisdiction was brought before the trial court in the Appellant’s preliminary objection at the trial court, the court had not yet determined the issue and as such it cannot be a ground of appeal at this point. Counsel submitted that the law is trite that the basis for any appeal must relate to the decision of the Court from which the Appeal lies and any ground of Appeal and issues raised on matters outside those relating to the relevant decision are incompetent. Counsel cited A.G. Anambra State v. Okeke (2002) 36 WRN 16 at 48. For these reasons, counsel has urged this court to strike out the Appeal in its entirety.
Let us consider the Appellant’s argument in this regard. Counsel argued that the case relied upon by the counsel to the 1st -15th Respondents, Oshutoba vs. Olujitan supra was not completely quoted and that from the entirety of the Supreme Court’s decision in that case, it was held that the issue of jurisdiction was improperly raised because it was neither raised nor covered in any of the three grounds of appeal and not because it was not raised at the trial court.. Counsel submitted that in this case, the issue of jurisdiction was properly raised as it is covered by ground 1 of the notice of appeal and as such, the leave of the court is not required.
Counsel further argued that the application challenging the jurisdiction of the trial court was properly before the trial court and that where a court refuses to take an application before it, it means that the application has been refused by the Court. Counsel pointed out that instead of the trial court to take its preliminary objection which is of vital importance to the whole proceedings at the trial court, it went ahead to hear the latter application of the 1st -15th Respondents. Counsel cited Salim v. Ifekwe (1996) 5 NWLR Pt. 450 Pg. 564 at 584.
Counsel also pointed out that by section 15 of the Court of Appeal Act, 2004 and Order 4 Rule 4 of the Court of Appeal Rules 2007, this court has the power to determine whether or not the trial court has jurisdiction to determine the substantive suit notwithstanding the fact that the trial court did not specifically pronounce on it. Counsel cited Julius Berger (Nig.) Plc vs. Nwagwu (2006) 12 NWLR Pt. 995 Pg. 518 at 539; Okotie -Eboh & Ors vs. Okotie Eboh (1986) 1 NSCC Pt. 1 Pg. 183; Obiakor vs. State (2002) 10 NWLR Pt. 776 Pg. 612 at 626; Access Bank Plc v. U.L.O. Consult Ltd (2009) 12 NWLR Pt. 1156 Pg. 534 at 554 -555.
Counsel also argued with regards to grounds 1, 3, and 5 that they are grounds of law alone which do not require the leave of any court. Counsel cited Oge vs. Ede (1995) 3 NWLR Pt. 385 Pg. 564 at 576-578; Ogbechie vs. Anochie (1986) 2 NWLR Pt. 23 Pg. 484 at 491-492; Ononuju vs. A.G. Anambra State (2009) 10 NWLR Pt. 1148 Pg. 182 at 202 -203
Counsel argued that the preliminary objection is frivolous, baseless, meaningless and a clear attempt to mislead this Honourable Court. Counsel urged the court to allow the appeal be heard on its merit to enable this court determine the real issues in controversy between the parties.
Let us examine the issues raised in the Preliminary Objection brought by the 1st -15th Respondents. They are as contained on page 13 of the 1st -15th Respondents’ brief as follows:
- Whether the Appellant could competently Appeal on any of the said Grounds of his Appeal and the particulars thereof are endorsed on his said Notice of Appeal in the absence of any leave of either the lower Court or of this Court first sought and obtained?
AND/OR
- Whether the said Grounds and particulars, thereof, particularly Ground 1, thereof which is wholly speculative, does not arise and/or emanate from the said decision of the trial Federal High Court delivered on the 12th March, 2010, per Akanbi J., purportedly being appealed against and/or constitutes, together with the Issue said to have arisen thereon as sought to be argued in the Appellant’s Brief dated the 25th November, 2010, a fresh issue of which no prior leave has been sought nor obtained could competently be brought before this court?
AND/OR
- Whether Grounds 2, 3, 4 and 5 of the Appellant’s said Notice of Appeal and the particulars thereof which are wholly speculative, vague and general in terms; and the same discloses no reasonable ground of Appeal, are frivolous, manifestly unarguable and/or constitutes a grievous abuse of process are not grossly incompetent; and ought thereby to be struck out and the Appeal dismissed.
Learned counsel to the 1st -15th Respondents failed to canvass any arguments in relation to issues 1 and 3. Instead, after dealing with the issue of jurisdiction and ground 1, went ahead to state that grounds 1 and 3 being grounds of mixed fact and law should not have been raised without the prior leave of the trial court. I will therefore hold that issues 1 and 3 as stated above have been abandoned, and I will resolve issue 2 which pertains to ground 1 of the Appellant’s notice of appeal.
The issue of jurisdiction is of vital importance. It is trite that the issue of jurisdiction can be raised at any time during trial and even on appeal because it goes to the very root of the whole matter. If a court entertains a matter it lacks the requisite jurisdiction to entertain, the whole proceedings is null and void. It has however been held that if the issue of jurisdiction is to be raised for the first time on appeal, it must be properly raised. The question now is, when would the issue of jurisdiction raised for the first time on appeal be deemed properly raised? In Oshutoba vs. Olujitan (2000) 5 NWLR Pt. 655 Pg. 159 at 171 -172, relied on by both parties, the Supreme Court held thus:
“There can be no doubt that the question of jurisdiction, being radically fundamental, can be raised at any stage of a proceeding and even for the first time in a court of last resort, such as the Supreme Court. See Management Enterprises Ltd. and another v. Jonathan Otusanya (1987) 2 NWLR Pt. 55 Pg. 179. Such an issue must, however be properly raised before the court may rightly entertain the point. This is because an appellate court will not generally allow a fresh point to be taken before it if such a point was not pronounced upon by the court below. See London Chartered Bank of Australia v. White (1987) 4 A.C. 213, Kabaka’s Government and another v. Attorney General of Uganda and Anor (1965) 3 WL.R. 512 or (1966) A.C. 1. In the same vein, an appellant will not generally be allowed to raise on appeal a question which was not raised, tried or considered by the court below although where the question involves a substantial point of law, substantive or procedural, and it is plain that no further evidence needs be adduced which would affect the decision, the court will allow the question to be raised and the points taken to prevent an obvious miscarriage of justice. See Attorney-General of Oyo State v. Fairlakes Hotels Ltd (1988) 5 NWLR Pt. 92 Pg. 1 at 29; (1989) 5 NWLR Pt. 121 Pg. 255, John Bankole and others v. Majidi Pelu and others (1991) 8 NWLR Pt. 211 Pg. 523. There are of course exceptions and/or qualifications to this broad proposition of law. With these exceptions and qualifications, this judgment is not concerned. It suffices to state, firstly, that an appellate court can only hear and decide on issues raised on the grounds of appeal filed before it and an issue not covered by any ground of appeal is incompetent and will be struck out. See Management Enterprises Ltd. & anor v. Jonathan Otusanya (supra); Attorney-General, Anambra State v. Onuselogu Enterprises Ltd. (1987) 4 N.W.L.R. (Pt.66) 547, Adelaja v. Fanoiki and another (1990) 2 N.W.L.R. (Pt.131) 137 at 148.”
It is obvious from the above judgment that where an issue involves a substantial point of law, an appeal court can allow the issue to be raised especially to prevent an obvious miscarriage of justice. The Supreme Court also stated that for the issue of jurisdiction, which is a substantial issue to be raised for the first time on appeal, it must be contained in the grounds of appeal. It should be noted that the Supreme Court made no mention of a party obtaining leave to raise this issue.
Having said this, even though the issue of jurisdiction was not determined or pronounced upon by the trial court in its ruling of 12th March, 2010, the trial court had indirectly assumed jurisdiction by taking the 1st -15th Respondents’ application dated 7th day of August, 2009. This assumption in itself makes the issue of jurisdiction of vital importance to the whole proceedings at the trial court. If indeed the trial court lacks the requisite competence to entertain the substantive suit, then all the proceedings at the trial court including the order to maintain status quo made on the 4th of August, 2009 and the ruling of the court delivered on the 12th of March 2010 is null and void.
Be that as it may, I must agree with the learned counsel to the Appellant that it would have been tidier for the trial court to determine the issue of jurisdiction to entertain the substantive suit as this would effectively resolve the controversy in this matter. In the con of resolving the preliminary objection to determine whether the grounds contained in the notice of appeal are competent, I would have to say that to the extent that they constitute valid grounds of appeal, they are. In that con, the preliminary objection is hereby resolved against the 1st -15th Respondents.
The Appellant’s counsel tried to persuade this court to take up the issue of jurisdiction which has been raised as a ground of appeal and to exercise this court’s power under Section 15 of the Court of Appeal Act 2004 and Order 4 Rule 4 of the Rules of Court. This is a substantive issue which in my view this court, at this stage in the proceedings should not take up. The practical justice of this case is that the matter should be decided by the trial court since it is already before the said court. An appeal may lie to this court on the said issue of jurisdiction after a determination by the trial court. It would have been a different proposition entirely if the issue of jurisdiction was not already a live issue at the trial court and is sought to be raised here for the first time. I would therefore at this point decline the invitation to determine the question of jurisdiction of the trial court.
In the circumstances, I am of the firm view that there are only two issues for determination in this appeal and they are as follows:
- Whether the trial court should have taken the application dated 4/8/09 challenging the competence of the court to entertain the substantive suit before taking the 1st -15th Respondents’ application dated 7/8/09 to set aside or nullify the election of the Appellant.
- Whether in the circumstances of this case, the trial court was right to have nullified the election of the Appellant as the President of the Nigerian Stock Exchange being a violation of the Court Order made on the 4th of August, 2009
Therefore, only arguments relating to these issues as couched would be considered and determined. Before I treat these issues though, I must say that it is trite that a Respondent in an appeal against a decision of a court, cannot argue against the Judgement of that court unless he cross-appeals. This is settled law. See Smithkline Beecham Plc v. Farmex Ltd (2010) 1 NWLR Pt. 1175 Pg. 285; Christlieb Plc v. Majekodunmi (2008) 16 NWLR Pt. 1113 Pg. 324. I am amazed that despite the vast array of cases in this regard, Counsel to the 28th Respondent still filed its brief of argument opposing the decision of the trial court and aligning the arguments canvassed therein with those of the Appellant, in clear violation of this settled procedure. For this reason, I will discountenance the 28th Respondent’s brief dated the 21st day of March, 2011 and filed on the same day.
ISSUE ONE
Learned counsel to the Appellant canvassed in respect of this issue that the trial court lacked the competence to entertain the application of the 1st -15th Respondents seeking an Order to set aside the election of the Appellant as the President of the Nigerian Stock Exchange because there was a pending preliminary objection against the jurisdiction of the trial court before it and an application for stay of proceedings dated 10th March, 2010 as well.
Counsel argued that it is an established principle of law that where the issue of want of jurisdiction succeeds, the case ends there. Counsel argued that this is why the courts have long held that it is not just appropriate but crucial that once the issue of jurisdiction is raised, the court must resolve same immediately so that the subsequent exercise of its judicial powers will not be in futility. Counsel cited Lakanmi vs. Adene (2003) 4 SC Pt. 11 Pg. 92 at 96. Counsel then argued that whenever issues for determination are before a court, those issues which relate to jurisdiction should be taken first. Counsel cited SPDC Of Nigeria Ltd. v. Isaiah & Ors (2001) 11 NWLR Pt. 723 Pg. 168 at 177. Counsel reiterated that since there was a challenge to the jurisdiction of the trial court pending before it, the court was wrong to take any other application or grant any interlocutory reliefs without first resolving the issue of jurisdiction. Counsel cited NDIC vs. CBN (2002) 7 NWLR Pt. 766 Pg. 272 at 292; Buba vs. Musa (2007) 7 NWLR Pt. 1032 Pg. 27 at 37.
Learned counsel to the 1st -15th Respondents in reply submitted that a court’s jurisdiction to granted injunctive reliefs in appropriate cases in not ousted by the mere fact that there is a challenge to its jurisdiction. Counsel argued that a court has the power and remains under the duty to preserve the ‘res’ in the case before it because until it pronounces on its jurisdiction or lack thereof, it has preservative jurisdiction.
Counsel submitted that the court in considering the 1st -15th Respondents’ application of 7th of August, 2009, was not concerned with the merits of the Plaintiffs’ case at the trial court, rather the court was concerned with the invocation of its disciplinary jurisdiction to protect its jurisdiction to try the case before it from being frustrated or stultified and to maintain the rule of law. Counsel then argued that the court was right to have taken the question of the clear defiance of is orders and contempt of its proceedings by the Appellant first even though there was a preliminary objection pending before it challenging its jurisdiction. Counsel cited Ebodaghe v. Okoye (2005) 1 MJSC 156 at 176.
The main question here is whether the trial court was right to take the application of the 1st -15th Respondents dated 7th of August, 2009 which sought the nullification of the election of the Appellant as the President of the Nigerian Stock Exchange on the basis that it violated the Order made by the trial court on the 4th of August, 2009 asking the parties to maintain the status quo, when there were other pending applications before it, particularly the Appellant’s preliminary objection challenging the jurisdiction of the trial court to entertain the substantive suit.
The gravamen of the Appellant’s argument under this issue is that the trial court was wrong to have in order of priority ranked higher the hearing of the 1st -15th Respondents’ application of 7th of August, 2009 before the determination of the Appellant’s preliminary objection challenging the jurisdiction of the court.
It is trite that the importance of jurisdiction in all adjudicative exercise cannot be overemphasized and if a court is shown to have no jurisdiction to entertain the matter before it, all its proceedings on the matter, however well conducted are a nullity and any decision reached thereon by the Court void ab initio and of no effect whatsoever. However, the issue of contempt is in a class of its own entirely. In Ebhodage v. Okoye (2004) 18 NWLR Pt. 905 Pg. 472, the Supreme Court held that the contempt case is sui generis and can be taken on its own because it is extrinsic to the substantive suit. The Supreme Court further held that the trial court is not bound to take the issue of jurisdiction first.
I am of the view that the court has a general jurisdiction with the power and indeed the duty to make Orders as it deems it fit in the circumstances of the case for the conduct of proceedings before it and the preservation of the subject matter of the substantive suit, notwithstanding that there is a challenge to its jurisdiction to entertain the substantive suit. Thus, where a court, in exercise of its general jurisdiction makes a an Order and a party before it willfully violates such order, the court has the discretion to deal with any application addressing such violation of the court’s order and to deal with the issue of contempt first before dealing with the issue of its jurisdiction to entertain the substantive suit.
In other words, the court’s jurisdiction to entertain a matter before it and its general jurisdiction to punish willful disobedience of its Orders are two very separate issues. The court cannot be a passive onlooker when any person attempts to subvert the administration of justice. The court has to act to protect its dignity irrespective of whether it has jurisdiction to hear the substantive suit. The violation of a court’s order and contempt of its proceedings which are extrinsic to the substantive matter before the court can be dealt with first before the issue of jurisdiction to entertain the substantive suit is dealt with. It all lies within the discretionary jurisdiction of the trial court as dominislitis of the court. That is the purport of the decision in Ebhodage v. Okoye supra.
It must be stated here before I go any further that an appeal was filed against the Order of the trial court for parties to maintain status quo made on the 4th of August, 2009. It was entered in this court as appeal CA/L/13/10. Judgment in that appeal was given today to the effect that there was no basis for the trial court to have made that order since there was no ‘res’ capable of being destroyed before the court. There was in fact nothing to protect. The said order to maintain status quo was set aside. However, being the penultimate court, I am obliged to consider the issues submitted for determination in this appeal in the event that this court is found to have been wrong in setting aside the order to maintain status quo.
Having said this, with respect to whether the trial court was right to have taken the 1st -15th Respondents’ application first, I am bound to follow the decision of the Supreme Court in Ebhodage v. Okoye supra that the trial court had the discretion to take any of the applications before it first and as such the trial court was right in taking the application first. This issue is resolved in favour of the Respondents.
ISSUE TWO
With regards to this issue, learned counsel to the Appellant adopted his arguments in relation to issue one and reiterated that the court Order of 4th of August, 2009 was invalidly made as there was a pending application before the court challenging its jurisdiction to entertain the suit. Counsel argued that where the jurisdiction of a court is challenged on any other ground than its composition and qualification of its members, the entire jurisdiction of the court is suspended. The only jurisdiction left for the court is to determine whether or not it actually has jurisdiction to hear and determine the substantive suit. Counsel cited Okafor vs. A.G. Anambra (1991) 6 NWLR Pt. 200 Pg. 659 at 679; Galadima vs. Tambai (2000) 11 NWLR Pt. 677 Pg. 10. Counsel then argued that since the Order purportedly violated is invalid, the trial court was wrong in setting aside the election of the Appellant as violating that order.
Counsel further argued that the trial court made the Order for maintenance of status quo when such was not sought for. Counsel submitted that no court has the power to grant a relief not sought for. Counsel cited Osuji vs. Ekeocha (2009) 16 NWLR Pt. 1166 Pg. 81 at 120; FBN Plc vs. ACB Ltd (2006) 1 NWLR Pt. 962 Pg. 438 at 479; Harka Air Services Ltd vs. Keazor (2006) 1 NWLR Pt. 960 Pg. 160 at 186 -187. Counsel then argued that since the Plaintiffs at the trial court failed to request specifically for an order of the Court restraining the Appellant from conducting or participating in any election, the court was wrong in granting such relief. Counsel also argued that even where there is a specific request for such an order, the court in delivering its Ruling must address the specific request and grant the order in relation to the request and this was not done in this case.
In addition, counsel argued that assuming and without conceding that the order was validly made, the Appellant was not elected as President of the Nigerian Stock Exchange in violation of the order and as such the nullification of the election by the trial court was still unwarranted. Counsel submitted that for an order of court to have effect, it must be specific, positive and decisive. Counsel cited Ozueh vs. Ezeweputa (2005) 4 NWLR Pt. 915 Pg. 221 at 241. Counsel argued that the order of 4th August, 2009 was not specific and did not restrain the 27th Respondent from conducting and/or participating in any election or procedure to elect the Appellant into office as President of the Nigerian Stock Exchange and as such the Appellant cannot be held liable for the disobedience of the court Order. Counsel cited Abbas & Ors vs. Solomon & Ors (2001) 15 NWLR Pt. 735 Pg. 144 at 166.
Counsel argued that in finding the meaning of the order made by the court since the trial judge failed to state the precise nature and scope of the order, reference must be had to the subject matter of the suit before the court, to which the Order must necessarily relate. Counsel argued that since the subject matter of the substantive suit is not about an election, the interpretation of the order to maintain status quo could not therefore when read in the con of the complaint raised by the 1st -15th Respondents, be read to infer that it should prevent the holding of elections into any office of the Nigerian Stock Exchange. Counsel submitted that the election of the Appellant as the President alters nothing material as it affects the 1st -15th Respondents’ case.
In response, counsel to the 1st -15th Respondents argued that the order of the court to maintain status quo was validly made and clear and unambiguous. Counsel argued that the trial court was thus right to nullify the election of the Appellant as violating the said order. Counsel submitted that parties to proceedings pending in court ought not to do anything which may have the effect of rendering nugatory the judgment of the court. Counsel cited Amaechi v. INEC (2008) 1 MJSC 1.
This issue is hinged on the validity of the Order made by the court on the 4th of August, 2009 asking parties to maintain the status quo pending the determination of the 1st -15th Respondents’ motion for interlocutory injunction and the Appellant’s preliminary objection. The issue of the validity of the Order has been resolved in the sister case with appeal number CA/L/13/10. I must repeat here that having held in the case today that the Order to maintain status quo is invalid, the issue of violation of the Order cannot even arise. You cannot put something on nothing and expect it to stand. In the circumstances, this appeal is liable to be allowed ex debito justiciae since there appears to be no foundation for the Order to maintain status quo. The resolution of this appeal is without prejudice to all pending applications and the merit of the substantive suit at the trial court.
Assuming the Order had been validly and properly made, the trial court would have been right to take the application seeking to nullify the election of Appellant as the President of the Nigerian Stock Exchange. Since it is not, this appeal is allowed. The Ruling of Lambo Akanbi J. in suit No. FHC/L/CS/798/09 delivered on 12/03/10 is hereby set aside.
No Order as to Cost.
Other Citations: (2008)LCN/3036(CA)
