J.A. Nwarie V. Dr. B. N. Amauwa & Ors. (1991)

LawGlobal-Hub Lead Judgment Report

KOLAWOLE, J.C.A.

At the Aba High Court in Imo State in suit No. A/172/91 the plaintiff, Dr. Bethel Nkemdirim Amauwa, instituted an action against the respondents, Joseph Adiele Nwarie, the National Electoral Commission and the Attorney-General of Irno State in which the plaintiff sought certain declaratory reliefs namely –

(1) Declaration that the Election Petition Appeal Panel comprising of three judges, sitting at the same time and in the same suit under the name and style of “In the Election Petition Appeal Court of Imo State of Nigeria. In the Election Petition Appeal Court of Umuahia Zone three holden at Aba” and comprising of a Chairman and two members is not “the competent High Court” of Imo State. The plaintiff claimed other reliefs.

On May 13, 1991 the plaintiff applied exparte for an interim injunction restraining the defendants from interferring with the plaintiff as being the duly elected chairman of Ukwa Local Government Council of Imo State until the Motion on Notice then pending in the court was determined. The order sought was granted on 14 May, 1991. The Motion on Notice was adjourned to 21 May, 1991 for hearing. On that day the learned judge after hearing arguments restrained the defendants by themselves, their-servants, agents or privies from interfering with the plaintiff as being the duly elected chairman for Ukwa Local Government Council of Imo State until the substantive suit is determined. The interim order of May 14, 1991 was discharged.

The first defendant, J.A. Nwarie, was dissatisfied with the ruling of Chianakwalam, J. and he has appealed to this court upon three grounds of appeal.

The appellant brought an application to this court for an order of departure from the rules of court that the appeal be heard on the bundle of papers filed with the application and abridging the time for filing briefs of arguments and for accelerated hearing of the appeal. We granted the order for departure from the rules and ordered that the bundle of papers filed herein be used as the record of appeal. We also abridged the time for filing briefs of arguments and we granted an accelerated hearing of the appeal.

In view of the nature of the appeal, we heard the appeal immediately after we had granted appellant accelerated hearing. The parties filed their respective briefs. Having regard to the importance and sensitivity of the appeal, I shall set down the three grounds of appeal namely:

1. Error in Law

The learned trial judge erred in law when he held as follows:

“In an application of this nature, it is paramount that the applicant must show he has a right the violation of which he seeks to protect. In this regard, it is not disputed that he (i.e. the plaintiff) won as Chairman of Ukwa Local Government Council in an election conducted in December, 1990. It is not disputed that the Election Tribunal at Umuahia as the Court of first instance, held that the election was favourable to plaintiff. It is not disputed that the first defendant who is the first respondent appealed against the judgment of the Tribunal. It is not in dispute that the decision of the Court of first instance was turned down by the Appeal Court. By the result of the Appeal Court decision, the plaintiff was denied a right which he acquired through an election. It is that right he seeks by these proceedings to protect.”

Particulars of Error:

1. The remedy for interim injunction is only available to protect the violation of a legal right.
2. Having come to the conclusion that by the result of the Appeal Court decision the plaintiff/respondent lost the right which he acquired through the election he had no more right which the court could protect by an order of interlocutory injunction.
3. Ground Two

The Court erred in law when- it held as follows:

“On a glance of the proceedings of the Appeal Court the forum of the court and its Composition are set out in Plaintiff’s exhibit No. C as follows:

“In the Election Petition Appeal Court of Imo State of Nigeria. In the Election Petition Appeal Court Umuahia Zone III.

Holden at Aba,

Hon. Justice Jonah Johnson -Chairman.

Hon. Justice C. U. Mbachu- Member.

Hon. Justice S. O. Ekpe – Member

I think there is a triable issue which is constitutional in nature whether the 1979 Constitution of Nigeria which created the High Court of Imo State and the office of Judges of the State can accommodate the above style and name as constituting the competent High Court of Imo State.”

Particulars of Error

1. The Honourable Chief Judge of Imo State has power under section 42 of the High Court Law, Cap. 61 Laws of Eastern Nigeria applicable in Imo State to assign judicial function to any judge or judges of the Imo State High Court.
2. The ruling complained about is only designed to question the authority of the Chief Judge to empanel judges of the Imo State High Court to sit on appeal on election petition.
3. Ground 3

The learned trial Judge lacked jurisdiction to entertain the suit and – the motion arising from the suit.

Particulars of Error

Local Government (Basic Constitutional and Transitional Provisions) Decree No. 15 of 1989 as amended had regulated the manner for questioning Local Government election returns. The court below had no powers under that law or any law to question in any manner whatsoever proceedings arising from election petition.

Learned Counsel for the Defendants/respondents did not file a Respondents’ Brief of argument. At the hearing of the appeal on 18 June, 1991 learned Director of Civil Litigation, Imo State, Mr. Akuneme sought for leave under Order 6 rule 10 of the Court of Appeal (Amendment) Rules 1984 to offer oral argument in the appeal because he did not file a Respondents’ Brief of argument on behalf of the second and third respondents. His application was not opposed by counsel on both sides consequently the application was granted. The appellant formulated two issues as arising for determination in the appeal. The two issues are:

1. Whether the High Court can grant an injunction to protect a non-existent legal right.
2. Whether the Court below had jurisdiction, to entertain matters arising from the determination of the decision of the High Court Appeal Panel when by S.75 of Local Government (Basic constitutional and Transitional Provisions) Act Cap 213 Laws of the Federation of Nigeria 1990 the decision of that court is final.

The respondent, on his part, formulated three issues which are as follows:

1. Whether in the circumstances of the case before the lower court it (the lower court) could grant an injunction.
2. If a decision or determination is void for want of jurisdiction could it be set aside by the court or a competent court?
3. Does ouster clause bite on nullities?

Learned Counsel adopted the appellants Brief. He submitted that it is a fundamental rule that a court will only grant an injunction to support a legal right. It is submitted that the court can not exercise this equitable jurisdiction where there is no legal right cognisable by the courts. Counsel further submitted that injunction will be granted only to protect the violation of a legal right. Chief Nwakanma submitted further that the learned trial judge recognized the principle guiding the making of an order of interlocutory injunction when he held –

“In an application of this nature, it is paramount that the applicant must show that he has a right the violation of which he seeks to protect.”

Learned Counsel submitted that in deciding whether to exercise the discretion in favour of the applicant for an order of interlocutory injunction, the court ought to consider the case as a whole, having regard to the case of the parties. Counsel contended that it is not sufficient to rely on the fact that the applicant may have arguable case. On this submission reliance is placed on Commissioner for Works, Benue State & anor. v. Devcon Development Consultants Ltd. & anor (1988) 3 NWLR (Pt.83) 407 at 422.

It is also submitted that the office of Chairman of a Local Government Council is a political right created under the Local Government (Basic Constitutional and Transitional Provisions) Act Cap 213 Laws of the Federation of Nigeria 1990; it is not a legal right founded under the common law. Counsel contended that the special legislation which created the right has also created the avenues for the protection of that right. According to learned counsel such avenues were exhausted by the judgment of the Imo State High Court Appeal Panel in their judgment which returned the Appellant as the Chairman of Ukwa Local Government Council. Mr. Dike, learned counsel for the plaintiff respondent in reply, treated grounds 1 & 2 of the grounds of appeal under issue number 1. He submitted that the plaintiff respondent has a right to be protected by the grant of an injunction. In support, learned counsel relied on the case of Obeya Memorial Specialist Hospital v. A-G of the Federation (1987) 7 SC (part 1) 52; (1987) 3 NWLR (Pt.60) 325 and Kotoye v. CBN (1989) 1 NWLR (Pt.98) 419.

Learned counsel further contended that it is not disputed that the plaintiff was invested the chairman of Ukwa Local Government Council by the 2nd and 3rd respondents. It is submitted that the plaintiff has a right to be protected pending the determination of the suit. The mere declaration of the Appeal Tribunal did not divest the plaintiff of the post which he enjoys at least until the appellant is sworn as Chairman.

Mr. Dike submitted that the lower court exercised a discretionary power in granting the interlocutory injunction against the defendants and the practice of the Appellate Courts is not to interfere in such exercise of discretion unless it can be shown that the exercise is perverse or based upon wrong principles. If there are grounds upon which the trial judge can properly exercise his discretion, their sufficiency is a matter for his discretion which will not be interfered with by an appellate court: Worbi v. Asamanyuah (1955) 14 WACA 669 at 671.

Now, referring to the case of Obeya Memorial Specialist Hospital (supra) Obaseki, J.S.C. observed at p.338 that-

“When an application for an interlocutory injunction to restrain a defendant from doing acts alleged to be a violation of the plaintiff’s legal right is made upon contested facts, the decision whether or not to grant an interlocutory injunction has to be taken at a time when ex-hypothesis the existence of the right or the violation of it or both is uncertain and will remain uncertain until final judgment is given in the action. If was to mitigate the risk of injustice to the plaintiff during the period the uncertainty could be resolved that the practice arose of granting him relief by way of interlocutory injunction.”

I shall return in a moment to the consideration of the Obeya case as it relates to the instant appeal but let me deal with the further submissions of Mr. Dike. Learned counsel submitted that it is sufficient that a triable issue is before the court to enable the learned judge grant an interlocutory injunction. Counsel submitted that section 75(1) and (4) of the Local Government (Basic Constitutional and Transitional Provisions) Decree No. 15 of 1989 (Cap 213) Laws of the Federation of Nigeria Vol. XI defines “Competent High Court” to mean the High Court of the State within which the Local Government Area concerned is situated.

Mr. Dike submitted that on construction of the relevant section, the High Court must mean the High Court as already in existence within Imo State. It is submitted that what is questioned in this matter is whether the court created by the Chief Judge of Imo State with a panel of three judges sitting together is the competent High Court as envisaged by section 75 of Decree No. 15 of 1989. Counsel submitted that the Appeal Tribunal is a new creation which has a limited life span and ceases to exist by effluxion of time. The State High Court exists in perpetuity by virtue of section 6 of the 1979 Constitution of the Federal Republic of Nigeria.

Learned counsel finally submitted on the issue that if the law makers had intended that appeals should go to a Tribunal or an Appeal Tribunal, other than the High Court of the State, it would have been expressly stated. In other words, jurisdiction to hear appeals is statutory and no court or Tribunal can be designated an Appeal Court unless there is a statutory provision to that effect.

On issues numbers 2 and 3 which deal with ground 3, learned counsel submitted that where a court lacks jurisdiction, it cannot make any order save to strike out the suit and any order it made on lack of jurisdiction is void.

It is submitted that the court can suo motu set aside the said order or may on an application to it set aside the order. It is not necessary that the judge who made the order which is void should be the one to set it aside: Skenconsult (Nig.) Ltd. v. Ukey (1981) 1 SC 6 at 9 & 39: Utih & Ors v. Onoyivwe & Ors (1991) 1 NWLR (Pt.166) 166 at 172, 206; Akinbola v. Plisson Fisko Nig. Ltd. (No.2) (1988) 4 NWLR (Pt.88) 335.

Mr. Dike submitted that the principle which is settled is that if the order, decision or determination is not a determination at all, such order decision or determination-is not within the Act or Decree. It is further contended that the plaintiff by the instant proceedings is not appealing nor is he asking the High Court to review or sit on appeal over the “judgment” complained against. The plaintiff’s case, it is contended, is that the Appeal Tribunal which comprised three judges is not the High Court of Imo State. Learned counsel observed that the appellant has shown remarkable difficulty in his brief to reconcile the anomaly about the appropriate designation of the Tribunal. At page 2 of the Brief it is called “High Court Appeal Panel” and in another paragraph it is called “Appeal Tribunal”.

Learned counsel contended that the Appeal Tribunal having decided that the petition was “void ab initio” it had no jurisdiction to embark on an inquiry and to make a determination. Such a determination, on the authority of Skenconsult (supra) is a nullity.

In his oral submission, learned counsel for the appellant, Chief B.C. Nwakanma conceded that the crux of the appeal is the construction of section 75 of the Local Government (Basic Constitutional and Transitional Provisions) Act, Cap 213 laws of the Federation of Nigeria 1990 (Decree No. 15 of 1989) Chief Nwakanma contended that a similar legislation was considered by the Supreme Court in Shedrack Orji Ukpai v. Udo Orji Okoro (1983) 2 SCNLR 380 at p. 391.

Learned counsel referred to section 42 of the High Court Law, Cap 61 Laws of Eastern Nigeria which, according to learned counsel, empowers the Chief judge to empanel the judges who sat together to hear appeals from the Election Tribunal. Counsel cited the following cases: James G. Orubu v. National Electoral Commission & ors. (1988) 5 NWLR (Pt.94) 323; Chief F. Arthur Nzeribe V. N.E.C. and Attorney-General of the Federation (1991) 5 NWLR (Pt. 192) 458; The Resident Electoral Commissioner & Anor. v. Nwocha & ors (1991) 2 NWLR (Pt. 176) 732 at 752. Chief Nwakanma submitted that the High Court presided over by Chianakwalam, J. lacked jurisdiction to entertain the action initially consequently any order made by the learned judge is void.

Mr. Akuneme, learned Director of Civil Litigation, Ministry of Justice, Imo State, associated himself with the submission of learned counsel for the appellant. He urged this court to allow the appeal.

In addition, he submitted that the sitting of two or more judges of Imo State constitutes the High Court of Imo State. Counsel referred to section 238 of the 1979 Constitution of the Federal Republic of Nigeria which provides as follows –

“238 For the purpose of exercising any jurisdiction conferred upon it under this Constitution or any law, a High Court of a State shall be duly constituted if it consists of at least one judge of that court.”

Learned counsel cited the cases of:

(1) Chief Jim. I. Nwobodo v. Chief C.C. Onoh & 2 Ors. (1984) 1 SC 1 at 123; (1984) 1 SCNLR 1 (2) The Resident Electoral Commissioner & anor. v. Chief D.O. Nwocha & 3 ors. (1991) 2 NWLR (Pt.176) 732 at 748, 752, 763. He further submitted that the High Court has no jurisdiction to entertain any complaint from the decision of the Appeal Tribunal. Learned Counsel pointed out that by virtue of Section 274 of the 1979 Constitution of the Federal Republic of Nigeria, the High Court Law of Eastern Nigeria is an existing law.

When we allowed Mr. Akuneme, learned Director of Civil Litigation, Ministry of Justice, Imo State leave to make oral submission without filing a Respondent’s brief, we acted under the belief that he was to support the ruling of the court of trial Order 6 rule 10 of the Court of Appeal Rules, 1984 provides that;

“Where an appellant fails to file his brief within the time provided for in rule 2 above, or within the time as extended by the Court, the respondent may apply to the Court for the appeal to be dismissed for want of prosecution. If the respondent fails to file his brief, he will not be heard in oral argument except by leave of the Court. Where an appellant fails to file a reply brief within the time specified in the rules, he shall be deemed to have conceded all the new points or issues arising from the Respondents brief.”

Section 32 of the Court of Appeal Act, 1976 and Order 1 rule 2 of the Court of Appeal Rules, 1981 define an appellant to mean any person who desires to appeal or appeals from a decision of the court below or who applies for leave to so appeal, and includes a legal practitioner representing such a person in that behalf.

The National Electoral Commission and the Attorney-General of Imo State who were the 2nd & 3rd defendants with the Appellant as first defendant against whom the court below gave judgment did not file a Notice of Appeal against the said judgment and could not be heard to make oral submission to ask that the appeal be allowed as the Director of Civil Litigation argued on their behalf. If a person is aggrieved by the decision of a court, he must, in order to be heard in the Court of Appeal that the judgment be reversed in his favour file a Notice of Appeal with grounds upon which he relies that the appeal should be allowed. The second and third defendants did not file a Notice and ground of appeal and to that extent they cannot be heard at all even by leave of the Court of Appeal. The second and third defendants are not respondents to whom Order 6 rule 10 of the Court of Appeal refers. The leave granted to the Director of Civil Litigation to address the court orally under Order 6 rule 10 aforesaid is set aside and I shall discountenance all the submissions made to us.

In his own oral submission, learned counsel for the plaintiff Mr. Dike adopted the Respondent’s Brief of argument and in amplification thereof counsel submitted that when the Appeal Tribunal operated as it did in the proceedings over which the respondent now seeks four declaratory reliefs and four ancillary reliefs, it did not operate as a High Court envisaged by section 75 of the Local Government (Basic Constitutional and Transitional Provisions) Act 1990 (Decree No. 15 of 1989) but it operated as a Court of Appeal. Mr. Dike contended that the case of the Resident Electoral Commissioner (supra) is distinguishable from the present proceedings. In the former the application was in the nature of a prerogative order while in the latter the relief sought is a declaratory relief. Mr. Dike is of the opinion, relying on the decision in Skenconsult case, that any High Court may set aside any void decision by a declaratory relief. Learned counsel then addressed the court on what he called a subsidiary issue. He submitted that the Appeal Tribunal held at page 3 of the record that –

“This Appeal Court will not go into the merits or otherwise of grounds 1-5 of the grounds of appeal before us. This is because those grounds are based on non-compliance with the provisions of Schedule 5 to the Decree No. 15 of 1989 …… that non-compliance with the statutory provisions of schedule 5 to the Decree No. 15 of 1989 rendered the petition void ab initio. And that the court lacked the jurisdiction to hear such petition.”

The submission of Mr. Dike is that if the petition is void ab initio., it must be struck out. If the court lacked jurisdiction to hear the petition it must strike it out. Any decision arrived at after the Appeal Tribunal had declared that the petition is void ab initio and that the court lacked jurisdiction is an exercise in futility because the whole proceedings is void. It was therefore futile for the Appeal Tribunal to proceed to consider ground 6 of the grounds of appeal after it had declared that the petition is void and the court lacked jurisdiction. Mr. Dike submitted that the exercise of jurisdiction by the Appeal Tribunal is a nullity.

The submissions addressed to us by counsel for the parties appear, in my view, to be directed to the substantive case which is still pending at the court below. This is an interlocutory appeal which questions the grant of an interlocutory injunction against the appellant, the National Electoral Commission and the Attorney-General of Imo State. I must therefore warn myself at the beginning that this being an interlocutory appeal, I have to confine myself to the only issue or issues relevant to the determination of the appeal and refrain from commenting on other matters which would appear to have the effect of deciding the substantive case itself. In the present appeal, my only concern is whether the lower court has jurisdiction to adjudicate on the matter before it that is the interlocutory application, and whether there are materials before the court to entitle it to make the order of interlocutory injunction. In considering the submissions of learned counsel for the appellant with regard to the jurisdiction of the lower court, I think it is well to remember the provisions of section 6 (2), (3) (5) and (6) (a) & (b) section 236 of the 1979 Constitution of the Federal Republic of Nigeria. Section, 6 provides as follows:

(2) The judicial powers of a State shall be vested in the courts to which this section relates, being courts established, subject as provided by this Constitution, for a State.

The courts to which this section relates established by this Constitution for the Federation and for the States specified in subsection (5)(a) to (f) of this section shall be the only superior courts of record in Nigeria; and save as otherwise prescribed by the Armed Forces Ruling Council, each court shall have all the powers of a superior court of record.

(5) This section relates to –

(a) The Supreme Court of Nigeria;

(b) The Court of Appeal;

(c) The Federal High Court

(d) a High Court of a State;

(e) a Sharia Court of Appeal of a State;

(f) a Customary Court of Appeal of a State

(g) ……

(h) ……

(6) The judicial powers vested in accordance with the foregoing provisions of this section-

(a) shall extend, notwithstanding anything to the contrary in this Constitution, to all inherent powers and sanctions of a court of law;

(b) shall extend to all matters between persons, or between government or authority and any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person;

(c) ……

(d) ……

Section 236 provides as follows-

(1) Subject to the provisions of this Constitution and in addition to such other jurisdiction as may be conferred upon it by law, the High Court of a State shall have unlimited jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person.

(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 jurisdiction. For the purpose of these proceedings, it is very clear that the judicial powers of Imo State are vested in the High Court of the State and the High Court shall be the only superior court of record subject however to the establishment of a Customary Court of Appeal. Any other court established by the Armed Forces Ruling Council unless specifically stated in the Decree establishing such court shall not be a superior court of record. It therefore seems to me that the lower court has jurisdiction in proceedings which originate in the High Court and those which are brought before it as an appellate court or in its supervisory jurisdiction.

I am of the view that in so far as the judicial powers of Imo State are vested in the High Court of the State, the High Court shall have unlimited jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right is in issue. The lower court from which this appeal emanates is by virtue of the provisions of Section 6 (3) & (5) of the Constitution superior court of records.

By virtue of sections 70 and 75 of the Local Government (Basic Constitutional and Transitional Provisions) Act,. Cap 213 Laws of the Federation of Nigeria, 1990 (Decree No. 15 of 1989), the Tribunals which were set up, that is the Local Government Council Election Tribunals and the competent High Court to which appeals lie from the Election Tribunals are all, for the purpose of the Local Government Elections, Statutory Tribunals with a limited life span. They exist under the enabling law only for the purpose of the Local Government Elections.

Denning LJ. (as he then was) stated the position thus –

“In the case of statutory tribunals, the injured party has a remedy by certiorari, and also a remedy by declaration and injunction. The remedy by certiorari does not lie to domestic tribunals, but the remedy of declaration and injunction does lie and it can be equally effective, if not more effective than certiorari. It is, indeed, more effective because it is not subject to the limitation, that the error must appear on the face of the record.”

(Lee v. Showmen’s Guild of Great Britain (1952) 1 All ER 1175 at 1183 B-C). In Barnard & Ors v. National Dock Labour Board and anor. (1953) 1 All E.R; 1113 at 1119; (1953) 2 Q.B. 18, 41 Denning LJ., (as he then was) made a very illuminating speech in a case which is not too dissimilar from the instant case. He said (paras. A-G) –

“Finally, counsel for the defendants said that these courts have no right to interfere with the decisions of statutory tribunals except by the historical method of certiorari. He drew an alarming picture of what might happen if once the court intervened by way of declaration and Injunction. It meant, he said, that anyone who was dissatisfied with the decision of a tribunal could start an action in the courts for declaration that it was bad, and thus, by a side-wind, you could get an appeal to the courts in cases where Parliament intended there should be none. I think there is much force in that contention – so much so that I am sure in the vast majority of cases the courts will not seek to interfere with the decision of statutory tribunals – but I do not doubt that there is power to do so, not only by certiorari, but also by way of declaration. I know of no limit to the power of the court to grant a declaration except such limit as it may in its discretion impose on itself, and the court should not, think, tie its hands in this matter of statutory tribunals. It is axiomatic that when a statutory tribunal sits to administer justice, it must act in accordance with the law. Parliament clearly so intended. If the tribunal does not observe the law, what is to be done? The remedy by certiorari is hedged round by limitations and may not be available. Why, then, should not the court intervene by declaration and injunction? If it cannot so intervene, it would mean that the tribunal could disregard the law. The authorities show clearly that the courts can intervene. An instance of the remedy by injunction is Andrews v. Mitchell (1905) A.C. 78 where Section 68 of the Friendly Societies Act. 1896, enacted that the decision of a particular tribunal should be binding and conclusive on all parties without appeal and should not be removable into any court of law or restrained by injunction, but, nevertheless, the House of Lords held that the court could, in an action for an injunction, set aside a decision which was not given in accordance with the rules,”

(See also Cooper v. Wilson (1937) 2 All E.R. 726; (1937) 2 K.B. 309; Leeson v. General Council of Medical Education & Registration (1889) 43 Ch.D 366;AlIinson v. General Council of Medical Education and Registration (1894) 1 Q.B. 750.

In the present proceedings, section 75 (3) of Decree No. 15 of 1989 provides that-;

“The decision of the competent High Court shall be final”

The implication of the above provision is that if the statutory tribunal (the competent High Court) does not observe the law which is not what the law makers intended, what is to be done? I am in respectful agreement with the views of Lord Denning that the High Court can intervene in such a case not only by certiorari but also by way of declaration and injunction. Lord Denning is right when he observed that there is no limit to the power of the court to grant a declaratory relief except such limit as it may in its discretion impose on itself. I am of the same opinion that in this matter of statutory tribunals, the court as a superior court of record should not tie its hands.

In the case before the court below, the plaintiff/respondent seeks four declaratory reliefs, two orders of injunction, one order that the declaration of the appellant as Chairman for Ukwa Local Government Council be set aside and an order striking out Appeal No. EPU/7A/91 for lack of jurisdiction. The plaintiff felt that he had not been treated justly and he sought redress in the High Court of Justice which, it is said by the appellant, has no power to interfere. That issue should be left for the moment for determination by the court below but with respect to the issue on appeal whether the lower court ought to grant an interlocutory injunction or not, I am satisfied that almost all the arguments canvassed before us touch the substance of the claim in the lower court, but I am in no doubt on the authorities which I have referred to that the High Court possesses jurisdiction in declaratory matters.

I shall now consider some of the authorities cited before us. Learned counsel for the appellant relied on a decision of this court, Lagos Division in suit No. CA/L/293/90 Chief F.A Nzeribe v. National Electoral Commission and anor (delivered on 8/4/91) (1991) 5 NWLR (Pt.192) 458 to the effect that the court below lacked jurisdiction in entertaining the matter before it. That case is distinguishable from the instant case. The Decree which was the subject of consideration in that case was Decree No. 25 of 1987. The Participation in Politics & Elections (Prohibition) Decree. Sections 6 and 7 effectively in clear and unambiguous terms ousted the jurisdiction of the courts including –

“any action by way of declaration or review or the issue of prerogative orders or the equitable remedy of injunction or specific performance or by way of appeal or otherwise.”

Awogu, J.C.A. who delivered the lead judgment observed at page 17 that-

“Of all the provisions in Decrees ousting jurisdiction, sections 6 and 7 of Decree 25 of 1987 are the most far reaching to be found in any Decree since the inception of Military rule in this country.”

I share the views of Awogu, J.C.A. expressed at page 18 that –

“A tribunal, no matter how highly clothed with power, is still a tribunal and so an inferior court and subject to the supervisory jurisdiction of a superior court of record, such as the High Court of Lagos.”

The Enugu Division of this court in The Resident Electoral Commissioner & anor v. Chief D.O. Nwocha & ors (1991) 2 NWLR (Pt. 176) 732 held a contrary view to the views expressed above by Awogu J.C.A. in the Arthur Nzeribe case (supra). Uwaifo, J.C.A. held the view at pages 748/749 that –

“It is certainly no derogation of the High Court as created by the Constitution to say that the (Election) Tribunal is a concurrent court but with separate jurisdiction: that of the Tribunal being limited by the Decree exclusively to local government election petitions while that of the High Court though unlimited excludes local government election petitions. But it is certainly a derogation of the tribunal as constituted under our present constitutional arrangement to refer to it as an inferior tribunal.”

Uwaifo J.C.A. was of the view that because Decree No. 15 of 1989 gives exclusive jurisdiction to the Election Tribunal and confers the powers of a judge of the High Court on the Tribunal, the Election tribunal is not an inferior tribunal. I doubt very much that if section 6(3) and (5) of the Constitution which sets out the only superior courts of record in Nigeria had been brought to the attention of Uwaifo, J.C.A., his decision would have been the same. All courts or tribunals which are not superior courts of record are inferior courts or tribunals.

As I have stated earlier Decree No. 15 of 1989 does not designate any of the Elections Tribunals as a superior court of record. I hold the view that it is not the status of the personnel which sits on any tribunal that determines its jurisdiction. The courts are creation of statute; section 6(5) of the constitution clearly spells out the superior courts of records. Those other tribunals which are not specifically mentioned therein or which are not so specifically designated under the statutes which created them are inferior tribunals.

In order to emphasize that the personnel which sits on a tribunal does not raise the status of the Tribunal to that of a Superior Court of record, I recall with pleasant memory the National Bank of Nigeria Limited enquiry set up by the Federal Government of Nigeria in 1961; the Tribunal of Enquiry was presided over by no less a distinguished legal personality than the Honourable Sir Vahe Bairamian, an oustanding Justice of the Federal Supreme Court of Nigeria. The Tribunal was challenged at the High Court of Justice Lagos presided over by the Honourable Mr. Justice Charles Dadi Onyeama of the Lagos High Court.

In Senator T. Adebayo Doherty v. Sir Abubakar Tafawa Balewa (Prime Minister), Sir Vahe Robert Bairamain, James Malcolm Harrison, Gerald Percy Cooke (1961) All NLR 604; (1961) 2 SCNLR 256 the Prime Minister of the Federation set up under the Commissions and Tribunals of Enquiry Act 1961 a Tribunal of Inquiry to inquire into the finances of the National Bank of Nigeria Limited. In pursuance of the Act, the first respondent, the Prime Minister of the Federation appointed the other three Respondents Commissioners to hold a Commission of Inquiry into certain activities of, among other persons, the Plaintiffs, in relation to a bank licensed under the Banking Ordinance and doing business principally in the Western Region and the Federal Territory.

The Tribunal consisted of Sir Vahe Robert Bairamian (Justice of Federal Supreme Court), James Malcolm Harrison and Gerald Percy Cooke. The Act was made applicable throughout the Federation and it provided, inter alia: that the Prime Minister could, whenever he deemed it desirable, issue a Commission appointing Commissioners to hold a Commission of Inquiry “into any matter or thing within or affecting the general welfare of the Federal Territory, or into any matter or thing within the Federal competence anywhere within the Federation”.

In the proceedings at the High Court, the plaintiff sought a declaration that the Commissions and Tribunals of Inquiry Act, 1961 under which the Commission of Inquiry was appointed, was unconstitutional generally, or, if not, that certain sections thereof were unconstitutional. The High Court of Lagos referred the following questions to the Federal Supreme Court under section 108 of the Constitution of the Federation, 1960-

(1) Whether or not the Commissions and Tribunals of Enquiry Act, 1961, is within the competence of the legislative powers of the Federal Parliament in so far as the said Act purports to have effect in relation to matters and things within Federal competence anywhere within the Federation?

(2) Whether or not Section 3(4) of the said Act is constitutional and valid or contravenes Sections 21, 31 and 108 of the Constitution of the Federation of Nigeria?

(3) Whether or not Sections 8(c), 8(d), 15(a) and 18(1)(b) or the Commissions and Tribunals of Enquiry Act, 196I, (or any of them), are constitutional and valid or contravene sections 20 or 21 of the Constitution of the Federation of Nigeria?

The Federal Supreme Court held, among other things, that:-

1. In so far as the Commissions and Tribunals of Enquiry Act, 1961, purports to have effect throughout the entire Federation, the general powers given to the Prime Minister, under Section 3(1) of the Act, to appoint Tribunals to inquire into “any matter or thing within Federal competence anywhere within the Federation”, are in excess of the powers of Parliament to grant under Item 44(b) of the Exclusive Legislative List, since such legislation is not ancillary to the discharge of any of the functions referred to in that Item.
2. Section 3 (4) of the Act is unconstitutional in that it purports to limit the jurisdiction of the Courts in hearing and determining civil rights and obligations and constitutional issues, contrary to the provisions of Sections 21, 31 and 108 of the Constitution of the Federation.

I have earlier mentioned that unless the statute which establishes a Tribunal specifically clothes it as a superior court of record, it is, notwithstanding the number and qualification of its members, an inferior statutory tribunal. I shall refer to the Local Government Elections Decree 1987 (Decree No. 37) now repealed by Decree No.15 of 1989.

Decree No. 37 of 1987 provides in section 31 that-

“The High Court shall have original jurisdiction to hear and determine any questions whether any person has become an elected member of a Local Government Council,”

Section 36 of the Decree provides as follows –

“(1) Notwithstanding any provisions permitting any other period of notice, notice of appeal to the Court of Appeal from a decision on an election petition shall be given within one month of the decision in question.

(2) The decision of the court of Appeal shall be final.”

It is very clear to me that the High Court and the Court of Appeal referred to above in Decree No. 37 of 1987 are the Superior courts of record established by section 6(3) and 5(b) and (d) of the 1979 Constitution. The Elections Appeal Tribunal established under Decree No. 15 of 1989 is not a Superior Court of record envisaged by section 6 of the 1979 Constitution; to that extent it is, in my judgment, an inferior statutory tribunal Which is subject to the supervisory jurisdiction of the High Court established under section 6 of the 1979 Constitution by virtue of section 236(1) and (2) of the same Constitution referred to above.

I have mentioned earlier in this judgment that my main concern in the present appeal is whether the High Court established under section 6 of the 1979 Constitution presided over by Chianakwalem, J. lacked jurisdiction to hear and determine the application before him and whether there were sufficient materials before him to grant the order of interlocutory injunction. Although the substantive case is still pending, learned counsel for the appellant, Chief Nwakanma, complains in ground 3 of his ground of appeal that the learned trial judge (Chianakwalam, J. lacked jurisdiction to entertain the suit and the motion arising from the suit. I shall,” as I have mentioned earlier in this judgment, resist the temptation to consider the substantive case. The Notice of Appeal filed by learned counsel, Chief Nwakanma, states as follows-

“Take Notice that the Appellant being dissatisfied with the RULING of the Honourable Mr. Justice S.W. Chianakwalam in the above stated matter delivered in the ]mo State High Court, Aba on the 21st day of May, 1991, do (sic) hereby appeal to the Court of Appeal. …”

The appeal is against the Ruling. The substantive case has not been heard. Thus no objection was raised in limine to the jurisdiction of the High Court and neither do I have in the record before us any submission of counsel before the lower court as to its lack of jurisdiction. However, the issue of jurisdiction being so fundamental can be raised even in an interlocutory appeal at any stage of the proceedings to contest the jurisdiction of the High Court to hear and determine the substantive suit. In such a case, the Court of Appeal may be drawn into the consideration of the competence of the Election Appeal Tribunal which heard the appeal from the Local Government Council Election Tribunals.

The present appeal questions the competence of the Election Appeal Tribunal. If it is not a properly constituted Tribunal as contended by learned Counsel for the Respondent, its decision is null and void and the High Court has jurisdiction to so declare and to that extent it has jurisdiction to hear and determine the application for interlocutory injunction. If the lower court lacked jurisdiction however, it cannot make an order for interlocutory injunction.

I have no doubt in my mind that section 42 of the High Court Law of Eastern Nigeria to which learned Counsel referred deals only with the power of the Chief Judge of Imo State to distribute the business before the court among the judges thereof and may assign any judicial duty to any judge or judges. Learned counsel also relied on the case of Shedrack Orji Ukpai v. Uda Oji OkaroJ 1983) 2 SCNLR 380. But at page 389 the Supreme Court observed –

“It is for this reason that I hold that the words ‘established for’ in s.119 (4) (c) of the Electoral Act (supra) which indeed indicate that a High court could be established for a Senatorial district (there are five senatorial districts in each state (see 8.44 of the Constitution) or for Federal Constituency (there are 450 Federal Constituencies to 19 States (see s.45 of the Constitution) or for a State Constituency (by virtue of s.85 of the Constitution of a House of Assembly of a State consists of three times the total number of seats which that State has in the House of Representatives) are ultra vires the Constitution and if left therein will render the paragraph completely unconstitutional.”

The main contest in that case was as to whether an election case could be heard in one judicial division or the other. The Supreme Court held that there is only one High court of a state.

The Local Government (Basic Constitutional and Transitional Provisions) Decree No. 15 of 1989 (Cap 213 Laws of the Federation, 1990) contains no ouster clause as in The Participation in Politics and Elections (Prohibition) Act, (Decree No. 25 of 1987) Cap 342 Laws of the Federation of Nigeria which was considered in the case of Francis Arthur Nzeribe (supra). Sections 6 and 7 of Cap 342 are the most far reaching clauses sweeping away all kinds of the jurisdiction of the courts. It provides as I have “earlier reproduced in clear language that-

“no other court of law or tribunal shall have jurisdiction to entertain any action by way of declaration or review or the issue of prerogative orders or the equitable remedy of injunction or specific performance or by way of appeal or otherwise in respect of any matter arising out of and pertaining to the provisions of this Act.”

I believe that it is most likely that the law makers of the Participation in Politics and Elections (Prohibition) Decree No. 25 of 1987 had in mind the English decisions in Lee v. Showmen’s Guild of Great Britain (supra), Barnard & ors. v. National Dock Labour Board & another (supra) and other similar Nigerian decisions when they promulgated Decree No. 25 of 1987. There is, however, no provision similar to sections 6 and 7 of Cap 342 in the Local Government (Basic Constitutional and Transitional Provisions) Act Cap 213 Decree No. 15 of 1989. The jurisdiction of the High Court is therefore not ousted when a party seeks a declaratory remedy, an injunction and prerogative orders against any statutory tribunal set up under Decree No.15 of 1989.

The substantive case is that the Election Appeal Panel comprising of three judges sitting at the same time and in the same suit is not the competent High Court of Imo State. If that Tribunal is not the competent High Court of Imo State then its decision would be void. If its decision is void, the election of the Respondent as Chairman of Ukwa Local Government Council remains valid. In such circumstances, the Respondent has a legal right the violation of which should be protected by an interlocutory injunction.

In considering whether the Respondent established a prima facie case, I like to compare the provisions of section 31 of Decree No. 37 of 1987 repealed by Section 81(4)(i) Decree No. 15 of 1989 which I have earlier reproduced with section 75(1) of Decree No. 15 of 1989. The issues to be tried by the court below involve serious questions whether the Appeal Panel or Appeal Tribunal which comprised three judges is a competent High Court and whether the Chief Judge is competent to constitute such a panel.

I am of the view that in the case before the court below, more justice will result in granting the application than in refusing it and that damage(cannot be adequate compensation for the Respondent’s damage or injury if he was unseated as the duly elected Chairman of Ukwa Local Government Council pending the determination of the substantive suit. The Appellant who was not elected at the Local government elections will suffer no injustice if he waited for the serious questions involved in the substantive case to be decided.

In the case, the court of first instance observed as follows:

“To be fair to the first defendant, the plaintiff should be bonded to pay damages to first defendant should he not succeed in establishing the reliefs sought in the substantive suit.”

The learned trial judge then ordered as follows –

“The plaintiff is hereby ordered to enter into a bond in the sum of N20,000.00 (twenty thousand naira) payable as damages to the defendants in the event of success not attaining the plaintiff when the substantive suit is finally determined.”

It has been decided by a long line of authorities that no order for an interlocutory injunction should be made on notice unless the applicant gives a satisfactory undertaking as to damages. The court of first instance has duly ordered the Respondent to give an undertaking as to damages. The appellant has appealed against the order of interlocutory injunction before the respondent had time to enter into the bond for N20,000.00 payable as damages to the appellant. I adopt with respect, the speech of Obaseki, J.S.C. in Obeya Memorial Hospital v. A-G of the Federation (supra) that the decision whether or not to grant an interlocutory injunction has to be taken at a time when ex hypothesis, the existence of the right of the violation of it or both is uncertain and will remain uncertain until final judgment is given in the action. I am of the same opinion that it was to mitigate the risk of injustice to the plaintiff who was duly elected Chairman of Ukwa Local Government Council during the period the uncertainty could be resolved that it is right and proper to grant relief to the plaintiff by way of interlocutory injunction. (See Obeya Memorial Specialist Hospital v. Attorney General of the Federation & Anor (1987) 2 NWLR (Pt.60) 325 at 338 A-D; N.A.B. Karoye v. Central Bank of Nigeria & ors. (1989) 1 NWLR (Pt.98) 419 at 441 C-F). I have considered the very serious questions and thorny issues which are to be tried and the real possibility of the respondent’s success at the trial coupled with the attempt to mitigate the risk of injustice to the plaintiff who was duly elected Chairman of Ukwa Local Government Council. I am of the firm view that this appeal ought to be dismissed.

I hereby dismiss the appeal. I affirm the order of interlocutory injunction made by Chianakwalam, J. dated 21 May, 1991. I hereby direct that the plaintiff shall enter into bond in the sum of N20,000.00 payable to the first defendant in the event of the plaintiffs failure when the substantive case is determined. The plaintiff is entitled to the costs of this appeal which I assess at N300.00 to be paid by the appellant.

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Other Citations: (1991)LCN/0108(CA)