Chief Michael Elobisi & Ors V. Professor Ronald O. Onyeonwu & Ors (1989)
LawGlobal-Hub Lead Judgment Report
UWAIFO, J.C.A.
On 17th March, 1989, at the Otuocha High Court, Achi-Kanu, J., made restraining orders against the defendants/applicants. I shall state the form and extent of the orders presently but before then I intend to narrate briefly what circumstances seemed to have warranted the said orders as perceived by the learned Judge.
The plaintiffs /respondents are members of the Ogbunike Progress Union, a social organisation in Ogbunike Community. The Union appears to be the live organ and planning body of the community. Its management was recently taken over by persons regarded by the plaintiffs/respondents and other members of the Union as enlightened persons. The community built a town hall and market from which fees and stallage are collected by the Union on behalf of the community. The defendants/applicants are members of the community but are said to be antagonistic towards the management of the Union, having lost control of the said Union. The other members of the Union regard the defendants/applicants as reactionary and believing in fetish. The said management is at present a caretaker committee which took over the affairs of the Union following the dissolution of the Executive. The community of Ogbunike was on 26 December, 1988, said to have passed a vote of confidence in the caretaker committee. But on 2 January, 1989, the defendants/applicants were alleged to have made an unsuccessful attempt to pass a vote of no confidence in the said committee.
Thereafter the defendants/applicants were said to have met at the Palace of the Igwe of the town and taken the following resolutions:
(a) That all the members of the Union’s caretaker committee returned unopposed on 26 December, 1988 are ostracised.
(b) That the said caretaker committee is dissolved.
(c) That the administration and management of the affairs of the town is now vested in the Ndichies (a group of chiefs to which the defendants/applicants belong).
(d) That there shall be no more collection of fees from the Oye-olisa market and the town hall till further notice.
(e) That the decisions shall be announced at the said market that same day.
The defendants/applicants were said to have accordingly gone to the market, made the announcement and stopped all the revenue collectors and the market master from performing their work. In addition to the above, the defendants/applicants were accused of threatening to bring deaths and misfortune to the community by invoking the spirit of a shrine known as Anashrine and of the founder of the town through the fetish ritual known as Isu akpulalo. It was also feared that the defendants/applicants would resort to the swearing on an idol known as inu iyi and the use of enweaka masquerade considered to have dreadful consequences.
The plaintiffs/respondents (as applicants in the court below) filed a motion ex-parte on 16 January 1989, which the learned Judge fixed for 26th January, 1989, for what they called “an order of interim injunction” to restrain the defendants. On the said 26 January, the Judge ordered that the ex-parte motion together with the affidavits and exhibits in support be served on the defendants who were to appear in court on 2nd February, 1989 to show cause why the order sought by the plaintiffs should not be made. But before 26 January, the plaintiffs had on 18th January, 1989 filed another motion, this time on notice, to the same effect as the motion ex-parte, and this was fixed for 10th February, 1989. Both motions asked for an order restraining the defendants “pending the determination of the main suit.”
As it turned out, the motion on notice was not actually heard. But there were affidavits, further affidavits, counter-affidavits and further counter-affidavits filed by the parties. It appears that counsel for the parties were compelled to advance arguments before the court on 17th March, 1989 when the learned Judge could no longer accommodate further adjournment. The court reached a decision that same day. The learned Judge remarked inter alia:
“I know from records that this motion has suffered from inordinate delays. I also know that the plaintiffs/applicants’ counsel had contributed to that inordinate delays. But that is not the issue now: The issue is why should the court appear to be under spell and fold its hands when the further affidavits continue to depict image of growing animosity and consternation in the Ogbunike Community; such that if the court does not act swiftly the mischiefs alleged as being threatened will explode I grant the plaintiffs/applicants’ prayers and the order absolute. The court had called upon the respondents to show cause why the applicants’ prayers should not be granted. This was in effect an order nisi.”
The learned Judge then said that the delay tended to impede the court from acting timeously but that it would not shirk its duty. He then in that situation decreed:
“I now restrain the defendants/respondents and make the following consequential absolute orders and that is to say that:
(i) The defendants/respondents, their privies, agents, men and women and or Umuada Ogbunike associates, fellow titled men, their superior or superiors in the title taking hierarchy in Ogbunike town, or any other person whatsoever acting through or for them ARE RESTRAINED from resorting to the practice ostracism, ‘Inu-Iyi, ‘Igba-Iyi’ and or the ritual of ‘Isu Akpulalo’ within or outside Ogbunike town;
(ii) The respondents are also restrained from the use of the dreadful masquerade ‘Enweaka’ as instrument or means of settling or resolving any conflict or dispute affecting the generality of Ogbunike as a people.
(iii) The respondents are also restrained from disturbing or frustrating the members of the Caretaker Committee by interfering personally or through any other person with the collection by the said members of the Committee of revenue from Oye Olisa Market, Ogbunike Town Hall and the Furniture therein or interfering with the said members of the Committee and other members of Ogbunike Community making use of Oye Olisa Market, Ogbunike Town Hall or other communal property of members of Ogbunike Community.”
The Judge then made the following observation as regards the motion on notice:
“The previous adjournment of this case to 10/2/89 for the plaintiffs/applicants’ Motion on Notice has become otiose by reason that, not only has that date come and passed, but also the Motion on Notice has become an unnecessary repetition of process: Since ‘the Order to show cause’ when served on the defendants/respondents duly placed the defendants/respondents on Notice as was formerly intended with the plaintiffs’ Motion on Notice.”
The substantive suit had earlier been adjourned to 12/6/89 for mention. The learned Judge confirmed that adjournment after he had made the restraining orders and the observation as above.
The defendants who have brought the present application pray for various orders among which are:
(i) extension of time within which to apply for leave to appeal against the ruling of 17th March, 1989;
(ii) leave to appeal against the said ruling;
(iii) extension of time within which to file notice and grounds of appeal;
(iv) a departure from the Rules of Court and for the court to thereby hear the appeal on the documents compiled by the defendants and such other documents the plaintiffs shall desire or the court may order;
(v) accelerated hearing of the appeal;
(vi) stay of execution” of the said order of 17th March, 1989 pending the determination of the appeal;
(vii) stay of further proceedings in the said suit pending the determination of the appeal.
I must say as was made clear by the court on the hearing of this application that prayers (i) and (ii) above are unnecessary. The proposed appeal is against an interim injunction. By virtue of Section 220(1)(g)(ii) of the 1979 Constitution no leave is required to appeal against it. Appeal is as of right: See Aqua Ltd. v. Ondo State Sports Council (1989) 4 N.W.L.R. (Pt. 91) 622 S.C.; Ilechukwu v. Iwugo (1989) 2 N.W.L.R. (Pt.101) 99 C.A. Counsel for the plaintiffs/respondents maintained that the defendants could not appeal against an order of interim injunction by virtue of Section 15(1) of the Court of Appeal Act 1976, even after his attention was drawn to Section 220(1)(g)(ii) of the 1979 Constitution. The said Section 15(1) of the Court of Appeal Act provides:
“Where in the exercise by the High Court of a State or, as the case may be, by the Federal High Court of its original jurisdiction an interlocutory order or decision is made in the course of any suit or matter, an appeal shall, by leave of that court or of the Court of Appeal, lie to the Court of Appeal; but no appeal shall lie from any order made ex-parte, or by consent of the parties, or relating to costs.”
To the extent that that provision conflicts with the Constitution, it is null and void. Indeed the above-mentioned cases not only confirm that appeal lies, it lies as of right.
As regards prayer (iii), it seems to me there are arguable or prima facie grounds of appeal and that the delay in filing the notice and grounds of appeal resulted from counsel’s erroneous view of the interpretation given to Section 220(1)(g)(ii) of the Constitution in Aqua Ltd. v. Ondo State Sports Council (supra).
I do not think in the peculiar circumstances the defendants/applicants should suffer the consequences of that. Application for extension of time within which to appeal is at the discretion of the court but such discretion in the judicial and judicious exercise of the function of the court ought to be more readily made in favour of an applicant particularly where the delay was due to the fault of the applicant’s counsel: see Doherty v. Doherty (1964) 1 All N.L.R. 299 S.C.; Akinyede v. The Appraiser (1971) 1 All N.L.R. 162 at 165 S.C.; Alagbe v. Abimbola & ors. (1978) 2 S.C. 39at 40; Lauwers Import Export v. Jozebson Ind. Ltd. (1988) 3 N.W.L.R. (Pt. 83) 429 at 447 S.C. In Bowaje v. Adediwura (1976) 6 S.C. 143 at 147, the Supreme Court said:
“This Court would readily exercise its discretion to extend- the periods prescribed for doing an act if it is shown to the satisfaction of the court that the failure by a party to do the act within the period was caused by the negligence or inadvertence of his counsel.
I think this principle covers a situation where counsel may not have been negligent or inadvertent but genuinely misconceived the fact or law involved in a matter, consequently causing a delay in taking the appropriate step in a given circumstance. I am satisfied that counsel for the defendants/applicants honestly held the view that where grounds of appeal involve facts or mixed law and fact leave is required to appeal against an order of injunction. Counsel sought and obtained leave in the court below but on realizing that the argument leading to it was made during vacation he regarded it a nullity. This appears to be supported by paragraph 32 of the respondents’ counter-affidavit of 17th April 1989 by Akpe Onwuka who said he believed that “the argument by counsel for defendants/applicants made on 28/3/89 might be a nullity, but that the motion for leave to appeal, which was filed before the Otuocha High Court on 22/3/89 was validly filed…” It was therefore obvious that there was some measure of uncertainty or argument as to whether the leave granted could be a nullity. In that circumstance, counsel for the defendants then sought leave of this court in this application still relying strongly on Aqua Limited case. When this court drew his attention to what that case decided in relation to the right of appeal in matters of injunction, he could hardly reconcile himself to it. That was the state of his conviction, as to the need to seek leave, even at the close of the hearing of this application.
It follows, in my judgment, that the two conditions under Order 3 rule 4(2) of the Court of Appeal Rules 1981 have been satisfied, namely, grounds showing arguable appeal and satisfactory explanation for the delay in filing the notice and grounds of appeal upon which the court may come to a decision that the appeal ought to be heard: see Ibodo v. Enarofia (1980) 5-7 S.C. 42; University of Lagos v. Olaniyan (1985) 1 N.W.L.R. (Pt.1) 156 S.C; Nwadike v. Nwadike (1987) 4 N.WL.R. (Pt.65) 394 C.A.; Gbe v. Esewe (1988) 4 N.W.L.R. (Pt.89) 435 C.A.; Obikoya v. Wema Bank Ltd. (1989) 1 NW.L.R. (Pt.96) 157 S.C.
Counsel for the plaintiffs/respondents though not opposed to an accelerated hearing would not be in a position to have the time allowed for filing respondent’s brief curtailed. He opposed the prayer for stay of execution. First, that to grant a stay would mean allowing the defendants/applicants to do whatever they liked, thereby neutralising what motivated the trial Judge to act to prevent grave consequences in Ogbunike. Second, relying on paragraph 53 of counter-affidavit sworn by one Akpe Onwuka, Esq., that the defendants/applicants and their agents went to the market on April 1st, 1989 to physically drive away the traders and order them to lock up their shops and stalls; and that in utter contempt openly invited the trial Judge and the Military Governor of this State to come personally to Ogbunike to enforce the order of court.
These are very serious allegations. The said counter-affidavit was filed on the morning of 17th April, 1989, the very day this application was heard. I like to believe that the defendants/applicants would have been able to refute those allegations but because they had no prior notice of them. I need hardly say that those who behave that way, risk to dare the authority of the Nation State and must find that they can have no means of protecting themselves against the consequences of their action. Such aberrant behaviour and inclination to be defiant can with silent ease be subjugated to the greater interest and peace of the society. That is the essence of law and order. That is what assures effective presence of Government.
I do not see how a stay of execution can be ordered in the present circumstances of this case. This has nothing to do with the allegations made against the defendants/applicants as stated above since as I said they had no time to refute them; it would be prejudicial to assume that they behaved that way. I do not think a stay of execution is in any event appropriate. If the trial court made an order discharging the injunction or the appeal against it is successful, that is a different matter. It is misconceived prayer to seek to stay the execution of the interim injunction pending appeal.
But there is a prayer also for stay of further proceedings pending appeal. This seems to have been predicated on the fears expressed in argument that committal proceedings have been or were about to be commenced against the defendants/applicants in the court below, and that because of the unfavourable atmosphere, they might be sent to gaol. I do not think the fears have been sufficiently justified. There is however the further reason for asking for a stay of further proceedings either of the substantive suit or the said committal proceedings. The defendants/applicants in ground 4 of the grounds of appeal complain in effect about the competence of the trial court to make an order which was wide enough to include persons against whom no allegation was made. It is therefore sought that further proceedings be stayed until the competence to make such an order was decided on appeal. I think the nearest to this is the case of In Re G. M. Boyo (1970) 1 All N.L.R. 111 cited in Akilu v. Fawehinmi (No.2) (1989) 2 N.W.L.R. (Pt.102) 154 at 168 S.C. In Boyo’s case the issue of the competence of the court to try the appellant was in question, and a stay of proceedings was ordered pending the determination of the appeal against the competence of the court.
I must admit that it is not always easy to determine whether to order a stay of proceedings or not. What is not in doubt is that such applications for stay of proceedings are more prevalent in certain situations than others. It is said that the usual cases of application for stay of proceedings arise where a party who has appealed against an interlocutory ruling seeks a stay of proceedings in the matter before the court pending the outcome of the appeal on the interlocutory decision: see Akilu v. Fawehinmi (No.2) (supra) at page 165. The present application falls within such cases.
I cannot end this ruling without adverting to the structure of the affidavits relied on by counsel for the respondents, Dr. Okongwu. It is almost a matter of scandal to his professional standing that he would file affidavits which are so fundamentally defective in content and form that they are nearly useless. First, it is a common feature of the affidavits he filed in the present case to have a single paragraph spanning half a page and at times close to a page of foolscap, typed single-line spacing. This cannot by any rational thinking be said to comply with Section 89(c) of the Evidence Act which says that an affidavit “shall be in the first person, and divided into convenient paragraphs, numbered consecutively.” Paragraphs of an affidavit written in long prose of the length I mentioned above must be considered inconvenient.
The second deficiency in the affidavits in question is that they are virtually studded either with objection, or prayer or legal argument or conclusion or even such extraneous matter in the form of insinuation against counsel for the opposing party. This again contravenes Section 86 of the Evidence Act which provides that: “An affidavit shall not contain extraneous matter, by way of objection, or prayer, or legal argument or conclusion.” When Dr. Okongwu’s attention was drawn to these improprieties, he argued tenaciously that when counsel gives opinion by way of legal conclusion or objection on any matter to his client and the client deposes to this in an affidavit, it becomes a fact to him and ceases to be what in substance it is. I think this must be a fiction and no doubt this contention betrays the high legal qualification and experience in practice of Dr. Okongwu who was once the Solicitor-General of Anambra State.
I will simply reproduce (unedited) three typical paragraphs of some of the affidavits in question to illustrate what I have made strictures on above. The first was sworn on 18 January, 1989 by Akpe Onwuka, and paragraph 1 (b) thereof reads:
“(b) The central objective of the defendants respondents is to keep the town of Ogbunike in perpetual darkness and restore it if possible to the last century state during which titled me” were the only ruling authorities in the town, and when their effective instruments of retardation, and arrest of social, political and economic progress of the town were the practices of swearing to an idol (Inu Iyi), Ikpo Iyi ostracism, use of the dreadful masquerade Enweaka and performance of the ritual known as Isu Akpulalo by which the titled men normally invoked the anger of the spirit of the town’s founder and those of our ancestors to bring death and destruction to the targeted persons. These practices had been resorted to in the past by the defendants and the action had caused untold miseries, deaths, serious strifes, political and/social instabilities in the town which events had led to the state government’s eventuation of inquiries into Ogbunike disturbances and the eventual banning by the Anambra State Government of the practices of ostracism isu akpulalo and appearance of Enweaka masquerade within Ogbunike town. The members of the caretaker committee have indeed spent a large sum of money for the traditional destruction of an Igba Iyi Oji ritual which the defendants/ respondents had effected at Ogbunike and by which act they manacled and enslaved the minds of the predominantly fetish community denied them the chances to reason properly for themselves and thus forced them to obey the said defendants sheepishly. The members of the committee have succeeded in arresting the divisive tendencies in the town. Apart from the need to safeguard all the achievements of the said committee members by the banning of the said practices there is need to control the defendants who normally benefit financially by creating confusion and quarrels among the illiterate community. Unless they are restrained by the honourable court the defendants will definitely go ahead, ostracise the members of the said committee, cause death and confusion in order not only to create the proper atmosphere and condition for their continued material and financial exploitation of the illiterate community, but also to reverse what ever gains towards peace which the members of the committee have so far made, and which the Anambra State Government has also made by banning the practices of ostracism Inu Iyi, Ikpo Iyi, Isu Akpulalo and appearance of the dreadful masquerade Enweaka.”
The second was sworn on 17th April, 1989 by the same Akpe Onwuka. Paragraphs 34 and 39 read:
“34. That in reply to paragraph (28), that my counsel, Dr. Obi Okongwu has told me and I verily believed him that there is an obvious attempt here by the deponent to conceal the truth from the Court of Appeal. The deponent has failed to depose in this affidavit the fact that his counsel, Miss I. Nwajagu, instead of applying on 5/4/89 or 6/4/89 to the court to allow the learned Senior Advocate of Nigeria, Mr. C. O. Akpamgbo to repeat on 5/4/89 or 6/4/89 the argument which he presented on 28/3/89 in order to validate same she told the court that the Senior Advocate of Nigeria, C. O. Akpamgbo Esq., had instructed her to apply for the motion which he filed on 22/3/89 to be withdrawn so that in effect the present defendants/applicants had done nothing whatsoever in the High Court. He had not applied first to the High Court for leave to appeal before making his present application (to the Court of Appeal) for leave to appeal as required by law.
- That in further reply to paragraph (28) my counsel, Dr. Obi  Okongwu, told me and I verily believed him, that the failure of the present defendants/applicants to obtain the leave of the High Court to appeal was caused by ignorance of procedural law by the said defendants/applicants and not by the Anambra State Legal Vacation and that ignorance of law is never an excuse.”
These last two paragraphs reflect on counsel for the present applicants. They are in bad taste. It is hoped that Dr. Okongwu will in future have no cause to have to defend the propriety of such depositions before this court. I will in this application order a stay of further proceedings arising from the interim injunction in suit No. OT/104/89 pending the determination of the appeal in the interlocutory proceedings in this court. But I make the following clear: (i) This stay of proceedings does not amount to stay of execution of the interim injunction. (ii) The order for stay of proceedings does not in any way permit the defendants/applicants by themselves, their agents or privies or otherwise howsoever to flout the authority of the court or disturb the peace (as any such behaviour will carry the necessary consequences) but only applies to any event relating to the interim injunction that was alleged to have taken place as at 17th April, 1989 when this application was argued before this court and in respect only of the interlocutory decision. (iii) Nothing prevents the substantive action from proceeding.
In the result, the application is allowed as follows:
(1) The defendants/applicants are granted an extension of 7 days from today within which to file their notice and grounds of appeal. The notice and grounds of appeal already filed shall be deemed duly filed upon payment of the appropriate fees in the court below within the said 7 days.
(2) A departure from the Rules as to compilation of record is hereby ordered and the appeal shall be heard on documents now before the court or as may be permitted to be supplemented.
(3) The defendants/applicants’ brief or argument already filed shall be deemed duly filed from the time of paying the necessary fees for the notice and grounds of appeal.
(4) Order of stay of further proceedings in respect of the interim injunction pending the determination of the appeal.
(5) Order for accelerated hearing of the appeal for a date to be fixed.
I assess costs in respect of the order for extension of time within which to file notice and grounds of appeal at N100.00 in favour of the plaintiffs/respondents.
Other Citations: (1989) LCN/0065(CA)
