Jude Iheanacho & Ors. V. Nigerian Railway Corporation (2001)
LawGlobal-Hub Lead Judgment Report
OGUNTADE, J.C.A.
On 8th August, 2000, the lower court in suit No. LD/2077/2000 made an order at the instance of the present applicants (who were the plaintiffs) restraining the respondent from carrying out any demolition exercise on the kiosk/structure/container/wagons at Iddo Railway Station pending the determination of the suit before the lower court.
The respondent was dissatisfied with the said order and has brought an appeal before this court against it. On 4/1/2001, the respondent brought before this court an application for an order staying further proceedings in the suit before the lower court pending the determination of the appeal.
In reaction, the applicants on 16/5/2001 filed an application for the following:
“An order that the defendant/appellant/respondent’s application cannot be heard as the defendant/appellant/respondent is a party in contempt of the interlocutory order of injunction dated 8/7/2000.”
The applicants stated the grounds they relied on in bringing the application thus:
“1. That the defendant/appellant/respondent cannot be heard until it has purged itself of the contempt of court by returning the plaintiffs to their position pending the final determination of this ease.
- The Honourable Court is being ridiculed.
- To mitigate the loss of the plaintiffs.
- To restore people’s confidence in the ability of the court to do substantial justice.
- So that the wrong doer does not benefit from his own wrong.
- That the defendant/appellant/respondent has not come to the court with clean hands.”
The applicants filed in support of the application a 30 paragraph affidavit. The applicants had on 23/2/2001 filed a similar application against which the respondent filed a counter- affidavit on 28/3/2001. At the request of Chief Debo Akande S.A.N., of counsel for the respondent, we allowed the respondent to make use of the counter-affidavit they had filed on 28/3/2001 to the applicants’ previous application.
We heard the application on 21/5/2001. Mr. Akinwunmi Adeniran of counsel for the applicants moved the application in the terms of the papers filed. He relied on a judgment of this court unreported delivered on 23/10/2000 in suit No. CA/L/181/97 between C. Obi & Ors. v. Onyeabo C. Obi & Ors (1998) 4 NWLR (Pt. 544) 51; Rossek & ors. v. A.C.E. (1993) 8 NWLR (Pt. 312) 382, (1993) 10 S.C.J.N. 80 at 82.
Chief Debo Akande SAN, counsel for the respondent opposed the application. He referred to Odogwu v. Odogwu (1992) 2 NWLR (Pt. 225) 539 at 554; Fame Publications Ltd. v. Encomium Ventures Ltd. (2000) 8 NWLR (Pt. 667) 105. He submitted that the facts in this case constituted an exception to the general rule. He relied on Gordon v. Gordon (1904) All ER 702.
In this ruling, it is necessary to say that courts generally enforce the common law principle that persons in disobedience of court orders cannot be heard on matters in which they seek the exercise of court discretion in their favour.
In F.A.T.B. v. Ezegbu (1992) 9 NWLR (Pt. 264) 132 at 150, the Supreme Court per Karibi-Whyte J.S.C. observed:
“The common law principle precluding persons in disobedience of orders of the court from being heard in respect of the matters in which they stand in disobedience is well settled. See Hadkinson v. Hadkinson (1952) 2 All ER 567. There are a few exceptions to this general rule. The principle however does not apply to applications challenging the order on the ground of lack of jurisdiction. See Gordon v. Gordon (1904) ALL ER P. 163. There is a clear distinction between the right to be heard in defence of the order made and the right to enforce an order whilst in disobedience. See Barker v. Dawson (1836) 1 Coop. 207. The right to be heard is clearly different from the right to enforce a right whilst still in disobedience. See Ojukwu v. Lagos State (1986) 2 S.C. 277 (1986) 1 NWLR (Pt18.) 621.”
However, one of the recognized exceptions is where the person against whom an order has been made is challenging the order on appeal on the ground that the court which made the order has no jurisdiction to do so. See Bettinson v. Bettinson (1965) ch. 465 ,(1965) 1 All ER 102 referred to by the Supreme Court in Mobil Oil (Nig.) Ltd. v. Assan (1995) 8 NWLR (Pt. 412) 129 at 145.
In the instant case, the first ground of appeal in the respondent’s notice of appeal challenges the jurisdiction of the lower court to hear the case of the plaintiffs/applicants. The ground reads:
‘The learned trial Judge erred in law in holding that he still had power to hear the substantive suit in spite of the Supreme Court cases cited to him that an action which begin against the specified statutory notice cannot be waived and that non-compliance renders the action a nullity from the beginning.
PARTICULARS OF ERROR:
(a) Issue of jurisdiction goes to the root of the matter.
(b) Jurisdiction can be raised at anytime and it was raised and the attention of the court drawn to the nullity of the case ab initio.”
Although the notice of appeal was directed against the ruling of the lower court made on 27/10/2000, it is apparent that if the ground of appeal succeeds, it will render the order of interlocutory injunction made on 8/8/2000 a nullity. As I observed earlier, the respondents’ application is for a stay of proceedings. It is obvious that if a stay of proceedings is not granted the respondent will be confronted with the risk of being punished as a contemnor.
Applicant’s counsel in the course of his argument referred us to the unreported judgment of this court in suit. No. CA/L/181/97 on 23/10/2000 between C. Obi & Ors. v. Onyeabo Obi & Ors. With respect to applicants’ counsel, the issue in that case was whether or not the trial Judge was right to have invoked the common law principle which precluded a party in disobedience from being heard in the suit. In the instant case, the issue is whether or not a party contesting on appeal the validity of an injunctive order on the ground of absence of jurisdiction in the court which made the order still ought to be subjected to the general common law principle. The case referred to is therefore not relevant to the issue up for decision in this ruling.
This application fails. It is dismissed.
Other Citations: (2001)LCN/0999(CA)
