Robert C. Okafor & Ors V. The Attorney-general and Commissioner for Justice Anambra State & Ors (1988)

LawGlobal-Hub Lead Judgment Report

OGUNTADE, J.C.A. 

This ruling is upon two applications both of which were brought by applicants who were the plaintiffs in the lower court. The first of the applications was filed on 17th March, 1987 and is treated under Suit No. CA/E/74M/87. The reliefs sought by the applicants therein are:

(a) A stay of the ruling/judgment or execution in the above named suit pending the determination of the appeal.

(b) An injunction to restrain the 1st and 2nd defendants/respondents from acting on the said ruling to recognize the 5th defendant/respondent as the traditional ruler of Awka pending the determination of the appeal and

(c) Any further order or orders as the Honourable Court may deem fit in the interest of justice.”

The second application was filed on 2/12/87 and is treated under Suit No. CA/E/331M/87. The applicants pray therein for an order:-

“Setting aside and/or revoking the recognition granted to the 5th defendant Ozo, A.C. Ndigwe as the Traditional Ruler of Awka while the issue touching the said recognition was still pending in Court.”

The issues leading to both applications arose in this way: The applicants as plaintiffs on 7/7/86 commenced an action at the Awka High Court claiming some reliefs. Pleadings were ordered to be filed. The applicants filed their statement of claim. On 19/8/86, the 4th and 5th respondents in this application who had then not filed their own statement of defence brought an application pursuant to Order 29 Rule 1 of the Anambra State High Court Rules praying that the “Plaintiffs’ suit be dismissed without any answer” on these grounds:

“The Court has no jurisdiction to entertain the action because-

a) The Statement of Claim discloses no cause of action.

(b) The plaintiffs have no locus standi to bring the action.

(c) No justiciable issue is disclosed by the statement of claim as to give the court jurisdiction in accordance with section 6(6)(b) of the 1979 Constitution of Nigeria.

(d) The statement of claim is fishing and is an abuse of the process of the Court.”

Rule 1 of Order 29 under which the application by 4th and 5th respondents was brought provides:

“Where a defendant conceives that he has a good legal or equitable defence to the suit, so that even if the allegations of the plaintiff were admitted or established, yet the plaintiff would not be entitled to any decree against the defendant, he may raise this defence by a motion that the suit be dismissed without any answer upon questions of fact being required from him.”

Arguments were in the usual way canvassed for and on 15/12/86, the lower court presided over by Obiesie J. delivered its ruling. It went in favour of the 4th and 5th respondents. The suit by applicants was accordingly dismissed.

The plaintiffs/applicants were dissatisfied with the order dismissing their suit. They filed notice of appeal. Meanwhile the 1st and 2nd plaintiffs indicated that they were not interested in further pursuing the matter. They brought an application that their names be struck off the cause. The court acceded to their request. Their names were accordingly struck out. The 3rd to the 6th plaintiffs/applicants then applied to the lower court praying for:-

a) A stay of the Ruling/Judgment or execution in the above suit pending the determination of the appeal.

(b) An injunction to restrain the 1st and 2nd defendants/respondents, their servants/and or agents from acting on the said ruling to recognize the 5tb defendant/respondent as the traditional ruler of Awka.”

The lower court in its ruling delivered on 17th March, 1987 refused the application by the plaintiffs/applicants on the grounds that:

1. It had not made any order which could be stayed as it had merely dismissed the suit.
2. That the plaintiffs/applicants had not in any case shown special circumstances justifying the grant of the Order of Stay of Execution.

It is to be noted here that the order dismissing plaintiffs/applicants suit was made on 15/12/86. On the same date plaintiffs/applicants filed notice and grounds of appeal. On the same date, they filed the motion for stay of execution pending appeal. Copies of the notice of appeal and motion for stay of execution were duly served on 1st and 2nd respondents on 18th December, 1986 (which was three days after the lower court dismissed the action).

On 16/12/86, a day after the order dismissing the suit, the plaintiffs/applicants’ solicitor sent a letter to the Military Governor of Anambra State. The letter is exhibit “M” in Motion No. CA/E.74M/87 and Exhibit “G” in Motion No. CA/E/331M/87. It is prolix. In the letter, the Military Governor was told that an appeal had been lodged against the order dismissing the suit and that an application for stay of execution was pending. The implications of the two situations in law were stressed. Notwithstanding that plaintiffs/applicants had filed notice of appeal and brought an application for stay of execution which was not disposed of until 17/3/87, and in spite of the letter referred to above which was sent to the Military Governor of Anambra State, the 1st and 2nd respondents by letter dated 6th February, 1987 purported to recognize the 5th Defendant/Respondent as the traditional ruler of Awka. The letter exhibit “F” in the motion CA/E/331M/87 reads thus:

GOVERNMENT OF ANAMBRA STATE OF NIGERIA

Ministry of Local Government

Rural Development & Chieftaincy Matters

P.M.B.1045,

ENUGU.

6th February, 1987

MLG/CM/S.98/II/539

Ozo Alfred Chukwuka Ndigwe,

u.f.s. The Administrator/Chairman,

Awka L.G.A.,

Old Government Station,

Awka.

Dear Sir,

Recognition as Traditional Ruler

I have the honour and pleasure to inform you that the Military Governor of Anambra State. Group Captain Sampson Emeka Omeruah has approved your recognition as the Traditional Ruler of Awka Community in Awka Local Government Area. This approval takes effect from 6th February, 1987.

Arrangements will be made, in due course, to issue you with the Certificate of Recognition.

2. May I, on behalf of the Government, congratulate you on this recognition. We look forward that under the umbrella of your fatherly reign, the entire Awka Community will be united in peace and harmony towards making their lives more meaningful and fruitful through their rural development efforts in partnership with Government.
3. Please accept our hearty congratulations Sir.

Yours faithfully,

(Sgd)

Nduka I. Eya

Permanent Secretary

Now what have the 1st and 2nd defendants/respondents to say as to the above? A legal adviser in the Ministry of Justice and Counsel to the 1st to 3rd defendants/respondents deposed to a counter-affidavit in the motion No. CA/E/331M/87. Paragraphs 4, 5, 6, 7, 9, 10, 12 and 13 of the counter-affidavit are germane and read thus:

“4. That none of the reliefs sought by the plaintiff touches on the recognition or non recognition of the 5th defendant.

5. That the relief sought by the plaintiffs relate to the validity or otherwise of the amendment of the Awka Chieftaincy Constitution, the operation of the 4th defendant as a regent and an injunction.
6. That Suit No. AA/70/86 was dismissed for want of locus standi and the plaintiffs have filed in this court an appeal No. CA/E/172/87 which is still pending.
7. That the issue for determination in this appeal does not touch on the recognition or non recognition of the 5th defendant as a traditional ruler of Awka.
8. That the plaintiffs have already filed a suit in Awka High Court in Suit No. E/36/87 claiming a declaration that the recognition of the 5th defendant is null and void and an injunction restraining the defendants from recognising the 5th defendant. A copy of the claim is attached herewith and marked as Exhihit ‘C’.
9. That the said suit is still pending at Awka High court having been transferred from Enugu High Court to the said Awka High Court.
10. That paragraphs 11-19 of the affidavit in support of the action are not true in that suit No. AA/70/86 does not touch on the validity or otherwise of the recognition of the 5th defendant and accordingly the motion for stay cannot effect the recognition of the 5th defendant. Moreover since the suit was dismissed for want of locus standi there was nothing to stay.
11. That the dismissal of both the substantive suit and motion for stay of execution by a court of competent jurisdiction means that the Government’s recognition does not do violence to or undermine the authority of the courts.”

The 5th respondent also deposed to a counter-affidavit in Motion No. CA/E/74M/87. Paragraphs 3,5,7,9 and 10 of the Counter-affidavit:

“3. That paragraph 1 of his affidavit is not true. That for a long time the 1st and 2nd plaintiffs have stated by affidavit in Court, by publication in the newspapers, and by oral statements to the hearing of the defendants in Courts, that they no longer wished to prosecute this case or the appeal arising therefrom. That when they failed to persuade their Solicitors, Messrs N.N. Anah and C.O. Anah, to withdraw their names from the suit, they engaged another Solicitor, Mr. G.P.O. Ejindu, to apply to Court for their names and the name of their village “Anikwo” to be struck off the motion for stay of execution then before the court. That after hearing arguments on the motion from all sides, the High Court, No. 2 Awka, gave a ruling on 17/2/87 striking out the names of the 1st and 2nd plaintiffs and their village, Anikwo, from the application for stay of execution then before the Court. That I exhibit herewith and mark as Exhibit “A” the said Ruling of the Awka High Court, and as Exhibit “A1” the publication in the Daily Star newspaper of 8th August, 1986, page 12.

5. That for from authorizing this application for stay of execution pending the determination of the appeal, the 1st and 2nd plaintiffs have filed a Notice of Discontinuance of the suit appeal. That I exhibit herewith and mark as Exhibit “B” a copy of the Notice of Withdrawal of the Appeal filed in the High Court, Awka, dated 16/2/87 and served on me. That a copy of this Notice of Withdrawal was served on the 3rd to 6th plaintiffs through their Solicitors, aforesaid, Messrs Senator Annah & Associates as well as on us the 4th and 5th defendants/respondents according to the information from the Awka High Court Registry which I believe.
6. That the first application for stay of execution was finally heard in the High Court Awka No. 2, and was dismissed. That I exhibit herewith and mark as Exhibit “G” the copy of that ruling.
7. That paragraph 13 of the affidavit is not true. That if the appellants win their appeal the defendants will be required to file a defence, and the action will then proceed to trial, and no prejudice whatsoever will have been suffered by the appellants.
8. That paragraphs 14 and 15 of the affidavit are not true. That to the knowledge of the plaintiffs the Anambra State Government has recognized the 5th defendant/respondent as the Traditional Ruler of Awka Town. That I exhibit herewith and mark as Exhibit “D” copy of the letter of recognition given to the 5th defendant/respondent dated”.

It is remarkable that neither of the deponents in the counter-affidavit the excerpts of which I have reproduced above denied that the plaintiffs/applicants promptly filed an appeal against the order dismissing their suit or that plaintiffs/applicants filed motion for stay of execution copies of which were served on them or that the 1st and 2nd respondents reeognised the 5th respondent while the motion for stay of execution was still pending.

The only way in which the counsel to 1st and 3rd respondents reacted to the central issues in this application is in his contention that the issue of recognition of 5th respondent by 1st and 2nd respondents did not fall within the ambit of plaintiffs/applicants claims before the court. I shall now attend to that contention.

In determining whether or not the recognition accorded to the 5th respondent by the 1st and 2nd respondents ought to be allowed to stand, the necessary starting point is a critical examination of the claims which the plaintiffs/applicants submitted to the court for adjudication.

This is with a view to determining whether the issue of the recognition of 5th respondent by 1st and 2nd respondents was part of the issues in contest.

The claims of the plaintiffs/applicants as put across in paragraph 47 of their statement of claim read:

“1. A declaration that any Constitution purported to be an amendment to the 1976 Chieftaincy Constitution for Awka Community and lodged with the Administrator for Awka or forwarded to the Anambra State Commissioner for Local Government, Rural Development and Chieftaincy matters Enugu is null and void and is of no effect.

2. A declaration that any action or decision based on the purported amendment of the Chieftaincy Constitution for Awka of 1976 is null and void and is of no effect.
3. A declaration that 4th defendant has no powers either by custom, tradition or any known law to act as the regent of the Ichie of Awka and that the purported appointment of the 4th defendant as the regent of the Ichie of Awka by the 3rd defendant or any other person or persons or body is null and void and is of no effect.
4. An injunction to restrain the 1st and 2nd defendant from acting on any decision based on the purported amendment of the 1976 Awka Chieftaincy Constitution.
5. An injunction to restrain the 4th defendant from parading himself as the regent of the Ichie of Awka.
6. A further injunction to restrain the 5th defendant from presenting himself to the 1st and 2nd defendants as the person validly selected under the purported amended 1976 Awka Chieftaincy Constitution to represent the Awka Community.”

The claims of plaintiffs/applicants are predicated on the averments in their statement of claim. The more relevant, for the purpose on hand, of these averments are to be found in paragraphs 29 to 42 which read thus:

“29. On or about the 26th of February, 1986, the Ozos, Ezeanas and the Ndichies of Awka after due consultation at the house of the Otochalu Awka and under the aegis of the 1976 Constitution selected a popular, capable and titled man in the person of Chief Joseph Okwudili Obi, the current Ogene of Awka for installaction, presentation, and recognition. A letter dated 26/2/86 is hereby pleaded and relied upon.

30. By a letter dated 17/3/86 the Awka Community gave notice of presentation of the said Chief Joseph Okwudili Obi to the 3rd defendant as Sole Administrator for Awka. The plaintiffs hereby plead the said letter dated 17/3/86 and will rely on it at the trial.
31. The plaintiffs also give the 3rd defendant notice to produce the original of the said letter or a certified copy thereof.
32. In a reply to the said letter of the 17th March, 1986, the3rd defendant informed the Awka Community in another letter dated the 20th of March, 1986 that the State Government had placed a ban on the presentation of traditional rulers for recognition till further notice. He then concluded that the Awka Communities application to present Chief Joseph Okwudili Obi for recognition as the next Ichic of Awka was therefore not approved. The plaintiffs shall rely on the said letter dated 20/3/86 and, therefore, hereby plead it.
33. Not out-witted by what leaked like a false representation of the Anambra State Government stand on the recognition of traditional rulers, the Awka Community wanted to go on with the little mundane preliminaries like the traditional installation of Chief Obi while leaving out the presentation and recognition until the alleged ban by the State Government was lifted. The Awka Community in a letter to the 3rd defendant as the Sole Administrator for Awka which letter was dated the 22nd of March, 1986 signified their intentions.
34. The Awka Community having informed the 3rd defendant of their intentions as stated in paragraph 32 above went on with their preparations for the installation in accordance with tradition and custom. On the appointed date and at the appointed time while the Awka Community were gathered at the Eziumogbu Village Square the 3rd defendant with crass indifference raided the said Square with police officers.
35. The Awka Community then protested to the State Governor. The protest letter dated 27/3/86 is hereby pleaded and will be relied on at the trial. The plaintiffs have pleaded the foregoing paragraphs to show the partiality of the 3rd defendant.
36. As a result of the said petition to the Governor a seemingly peace move was initiated by the 2nd defendant. Two letters dated 9th and 10th of April, 1986are hereby pleaded and shall be relied on at the trial.
37. The peace move proved abortive because the 2nd defendant was not only partisan but was also partial.
38. The plaintiffs then walked out on the 2nd defendant, and the said 2nd defendant saw it as a good opportunity for the 4th and 5th defendants to have a walk-over.
39. On the 5th May, 1986 the 4th defendant and a few others applied for a permission to amend the Awka Chieftaincy Constitution 1976 and the Permanent Secretary, Ministry of Local Government Rural Development Chieftaincy Matters forwarded the application to the Governor. The plaintiffs hereby plead those two letters and shall rely on them at the trial.
40. The said approval was secured by the 2nd defendant for the 4th and 5th defendants and communicated to the 4th defendant as the so-called regent uf Awka and not to the Awka Community. The said letter was written on the 23rd of June, 1986 and received by the 4th defendant the next day on the 24th of June, 1986. The plaintiffs shall rely on the said letter at the trial and hereby give the 4th defendant notice to produce it.
41. On the strength of the said letter the 4th defendant invited a few individuals at the Awka Local Government Council Hall by a letter dated the 25th June, 1986 and informed the people that the Awka Community had been granted permission by the Governor to amend the 1976 Constitution.
42. Thereafter the 4th and 5th defendants and their group purported to have amended the 1976 Constitution and began to act on it.
43. Based on this purported amended Constitution the 4th and 5th defendants and their group announced that the 5th defendant would be presented to represent Awka as their Obi on the 8th July, 1986. The plaintiffs still rely and found on the letter dated 3/7/86 written by one Ozo Annete Chinwuba.”

In the above averments the case being made by the plaintiffs/applicants in a nutshell is this.

That the appointment and enthronement of the traditional ruler of Awka is as stated in the Awka Chieftaincy Constitution of 1976. That the persons on whose behalf the plaintiffs/applicants brought their act inn had in accordance with the said Awka Chieftaincy Constitution of 1976 selected one Chief Joseph Okwudili Obi, the current Ogene of Awka as the next ruler of Awka. The 1st, 2nd and 3rd respondents refused to act on the selection. Later, a handful of individuals spearheaded by4th and 5th defendants/ respondents and with the tacit approval of 1st and 2nd and 3rd respondents purported to amend the said 1976 Awka Chieftaincy Constitution. Having done so, they then purported to put forward the 5th defendant/respondent as the next ruler of Awka.

I am not at this stage concerned with the question whether or not the plaintiffs/applicants may be able to successfully prove at the trial the averments set out in the statement of claim. It is however sufficient for now to know that that is the case of the plaintiffs/applicants. In the light of these averments and the reliefs sought by the plaintiffs/applicants, it cannot be correct to say that their case at the lower court has nothing to do with the recognition or otherwise of the 5th defendant. In effect, the plaintiffs/applicants are contending that they are the persons entitled under the Awka Chieftaincy Constitution of 1976 to select the ruler of Awka and not those who have done so here and who do not in applicants contention represent the true citizenry of Awka.

It seems to me that the Order made ex-parte by Obiesie J. on 7/7/86 would appear to have recognised that the question of the recognition of the 5th defendant/respondent as the ruler of Awka was inextricably tied up with the suit filed by plaintiffs/applicants.

The order (which is exhibit A) in the motion CA/E/331M/87 reads in part thus:-

“THIS COURT DOTH ORDER that there shall be an interim injunction in the said cause in the following terms:

(a) restraining the 4th defendant or Ozo Dr. S.E. Onejeme from parading himself as the regent of the Ichie of Awka pending the hearing and determination of the substantive motion herein;

(b) restraining the defendants or any person or body of persons from appointing or purporting to appoint the 4th defendant regent of the Ichie of Awka until the substantive motion herein is disposed of;

(c) restraining the 1st and 2nd defendants or the said Attorney-General and the said Commissioner Local Government, Rural Development and Chieftaincy Matters from acting on any decision based on the purported amendment of the 1976 Awka Chieftaincy Constitution until the substantive motion herein is heard and determined; and

(d) restraining the 5th defendant or Ozo A.C. Ndigwe from presenting himself to the 1st and 2nd defendants or any other person or persons as the person selected under the said amended 1976 Awka Chieftaincy Constitution to represent Awka Community until the substantive motion in this Suit is heard and determined.”

It is settled law that before a court makes an order of interim injunction upon an ex-parte application the court ought to have been satisfied that the material placed before it raises a prima facie case for the intervention of the court through an order of interim injunction. If the court had not been so satisfied, it would not have made an interim order restraining the 5th defendant/respondent.

I am therefore satisfied that the plaintiffs/applicants have by their action clearly shown that what is in dispute between the parties is the procedure for the selection of the ruler of Awka. The applicants regard the procedure and through which the 5th defendant/respondent emerged as the ruler of Awka as improper and not in accordance with the 1976 Awka Chieftaincy Constitution.

As I pointed earlier, the 4th and 5th respondents brought an application for the dismissal of plaintiffs/applicants suit. The lower court acceded to their request. There is now pending before us an appeal against the order of dismissal of plaintiffs/applicants’ action. The lower court was of the view that applicants had no locus standi to bring the suit.

We are not yet hearing the appeal and we must true to our calling as impartial arbiters keep an open mind concerning the appeal. It would suffice to say that we in this Court may or may not agree that the order of dismissal was correctly made. A court of law must always recognize that its judgment no matter how sound it appears can for good reason be set aside by a superior court. This position was well recognized by Megarry J in Erinford Property v. Cheshire Country County (1974) Ch. 261 at 268 when he said:

“One of the important factors in making such a decision, of course, is the possibility that the judgment may be reversed or varied. Judges must decide cases even if they are hesitant in their conclusions; and at the other extreme a judge may be very clear in his conclusions and yet on appeal be held to be wrong. No human being is infallible and for none are there more public and authoritative explanations of their errors than for judges.”

So that if we in this court hold that the lower court had been wrong in dismissing plaintiffs/applicants action on the ground that they lacked locus standi we shall have to send the case down for trial on the merits with defendants/respondents filing their pleadings.

The question then is – what will be the purpose of that trial if the respondents have done those very things which form the sub-stratum of plaintiffs/applicants’ action. It has to be borne in mind that the main reason why plaintiffs/applicants have come to court is to prevent 1st and 2nd respondents from recognizing the respondent as the ruler of Awka.

The lower court opined that since it did not make any orders save as to cost, there was nothing over which it could grant a stay of execution. With respect, I think that the lower court took a wrong view of the matter. In Kigo (Nigeria) Limited v. Holman Brothers (Nig) Ltd & Anor (1980) 5-7 S.C. 60 at pp.70 and 70-72 the Supreme Court said:

“It is our firm view that the court from which an appeal lies as well as the court to which an appeal lies have a duty to preserve the res for the purpose of ensuring that the appeal if successful is not nugatory.”

And ibidem at pp. 71 -72

“Indeed, from time immemorial, all courts of record, be they trial or appellate possess power of preservation of the Res in their custody – See Andler v. Duke (1932) 3 D.L.R. 210 as per McPhillips J.A. at p.220. See also The Zamora (1916) A.C. 77 where Lord Parker of Waddington put the matter thus:

“The primary duty of ——- (as indeed of all courts having the custody of property, the subject of litigation) is to preserve the res for delivery to the persons who ultimately establish their title.”

“With respect this legal proposition accords with commonsense, for it is a well known fact that the court never acts in vain. It is my respectful view, my Lords, that in the instant case, there is inherent power in the Kano High Court, the Federal Court of Appeal as well as this court to preserve the res in action once an appeal was lodged against the decision of the High Court or the Federal Court of Appeal as the case may be.”

I must here hasten to emphasize that the Res in action which a court of record has an inherent power to preserve may be tangible as in the case of funds in dispute or intangible as a right to decide who succeeds to the rulership as in this case on hand. See Kigo (Nig) Ltd. v. Holman Bros (Nig) Ltd (Supra) at page 73 where the Supreme Court made the point thus:

“Though the res in the Zamora is tangible – a vessel – the same principle obtains where the res is as in this case, intangible. The res here as Chief Williams has in my view, rightly submitted, is one of determination of the question of the opportunity of having whatever happens to the applicant being the responsibility of the Third Party.”

In the approach to this kind of application a court must always be keenly conscious of the consequences of its refusal to grant a stay of its orders even where an action has been dismissed. In Sodeinde & Ors v. Ahmadiyya Movement in Islam (1980) 1-2 S.C. 163 at 175 the Supreme Court referred with approval to the observations of Cotton L.J. in Poliny v. Gray (1879) 12 Ch.D. 438 at 446 where he said:

“The only question we have to consider is whether or not the court has jurisdiction in a proper case to stay all dealings with a fund pending an appeal to the House of Lords although the Court has decided against the title of the plaintiff and dismissed the action. I see no difference in principle between staying the distribution of a fund to which the court has held a plaintiff not entitled and staying the execution of an order by which the Court has decided that a plaintiff is entitled to a fund.

In that case, as in this case, the Court pending an appeal to the House of Lords suspends what it has decided to be the right of one of the litigant parties. On what principle does it do so? It does so on this ground, that where there is an appeal about to be prosecuted the litigation is to be considered as not at an end and that being so, if there is a reasonable ground of appeal, and if not making the order to stay execution of the decree or the distribution of the fund, would make the appeal nugatory……….then it is the duty of the court to interfere and suspend the right of the party who, so far as the litigation has gone has established his rights.

That applies in my opinion ……..to where the action has been dismissed (and) ………to where a decree has been made establishing the plaintiff’s rights.”

A perusal of the ratio decidendi in the older judicial authorities inclining to the contrary views expressed in Polini v. Gray (supra) reveals that the inhibiting factor had been that where a court decided that a plaintiff was not entitled to an injunction, it would be a negation of that decision to grant o the plaintiff the same injunction he had been held not entitled to just because he was appealing. See Galloway v. The Mayor, the commonality and citizen., of London (1865) 46 E. R. 560.

But in the instant case, there was no inhibiting factor whatsoever. The case was not heard on the merits. Indeed the respondents never filed a statement of defence. The case had simply been dismissed upon an objection in limine after plaintiffs/applicants filed their statement of claim. There was therefore a more compelling reason why the lower court should have been more favourably disposed towards plaintiffs/applicants’ application for a stay of execution pending appeal.

Another reason why the lower court refused the grant of stay is that the applicants failed to show special circumstances. It seems to me that there does not exist just one invariable way of showing special circumstances. Each case depends on its own facts. Where the judgment on appeal directs the payment of money, the person ordered to pay may be able to show that the person to whom money is payable under the judgment is inpecuninous and will not be able to refund the money if the appeal succeeds. In such situation, there ought to be affidavit depositions to the inpecuniousity of the judgment creditor. But special circumstances may also arise from the inherent nature of the case on appeal as where the substratum of the case on appeal is the same as that on the application for stay so that a refusal will in consequence denude the action of its substance. In this connection I refer to views of the Supreme Court in Vaswani Trading Company v. Savalakh & Co. (1972) 12 S.C. 77 at 82:

“We take it that the word “special” in this context is not used in antithesis to the words “common” or “normal” for that would be tantamount to pre-judging the appeal on a determination of an application for a stay of execution. When it is stated that the circumstances or conditions for granting a stay should be special or strong we take it as involving a consideration of some collateral circumstances and perhaps in some cases inherent matters which may, unless the order for stay is granted, destroy the subject-matter of the proceedings or foist upon the court, especially the court of appeal, a situation of complete helplessness or render nugatory any order or orders of the court of appeal or paralyse, in one way or the other, the exercise by the litigant of his constitutional right of appeal or generally provide a situation in which whatever happens to the case, and in particular even if the appellant succeeds in the court of appeal, there could be no return to the status quo. All rules governing stay of actions or proceedings, stay of executions of judgments or orders and the like, are but corollaries of this general principle and seek to establish no other criteria than that the court, and in particular the court of appeal, should at all times be master of the situation and that at no stage of the entire proceedings is one litigant allowed at the expense of the other or of the court to assume that role.”

See also Phoenix Motors v. Omokeawo (1986) 3 N.W.L.R. (Part 30) 523.

Another way of showing special circumstances is by filing grounds of appeal which raise substantial issues of law in an area in which the law is recondite. See Balogun v. Balogun (1969) 1 All NLR 389.

The lower court did not appear to have given attention to this aspect of the matter. The plaintiffs/ applicants exhibited their notice and grounds of appeal to their application before the lower court. I have carefully read through them. They raise vital issues of law. Further I bear in mind that determining the issue of locus standi in a civil case vis-a-vis the claims put forward by the plaintiffs and the facts pleaded on the statement of claim is not a matter entirely free from difficulty. While the principles involved are now fairly well known, the practical applications of those principles do raise considerable difficulties.

The applicants contend in their grounds of appeal that paragraph 19 of their statement of claim shows the basis of their locus standi in the matter.

The said paragraph reads:

“19. At the said meeting, the 3rd defendant observed that by the 1976 Constitution the Ndi-Oches, Ndichies and the Ezeanis were the people or body of persons who have functional roles to play in the selection or appointment of their Chief and therefore should act as caretakers in the traditional governance of Awka town.”

Be it noted that the plaintiffs/applicants sued for themselves and on behalf of the Ozos, Ndichies and Ezeanas of Agulu and Amikwo Communities Awka.

It is not for us to answer the question whether applicants have shown their locus standi on this application. We should need the benefit of counsel’s arguments to be able to do that. Therefore we refrain from commenting further.

We keep an open mind. But it will suffice to say that the plaintiffs/applicants have appealed bona-fide and have grounds of appeal that are at least arguable.

It is therefore my view that having regard to the nature of the substratum of this appeal and the grounds of appeal filed, the plaintiffs/applicants should have been granted a stay of execution by the lower court. It does not matter how that relief was described. The clear intention was to protect the Res in the action and suspend the rights of the respondents that would naturally flow from the dismissal of plaintiffs/applicants’ action.

The unusual or strange thing in this matter is that even before the lower court delivered its ruling on 17/3/87 refusing the grant of a stay of execution, the 1st and 2nd respondents who knew that an appeal had been filed and who were served the copy of the motion for stay of execution proceeded on 6/2/87 (when the motion for stay of execution was still pending before the Awka High Court) to accord recognition to the 5th respondent. This was the very act the plaintiffs/applicants had sought to prevent by bringing their action in the first place.

In his argument before us Mr. G.N.A. Okafor for the 4th and 5th respondents said that as an appeal did not operate as a stay of execution and since the action of applicants had been dismissed, there was nothing to restrain the 1st and 2nd respondents from recognising the 5th respondent on 6/2/87 even if a motion for stay of execution was pending as at that date.

Mr. G.N.A. Okafor is a first class advocate and a perfect gentleman in and outside the bar. But still he argued in that way. It does not detract from my esteem of him. But it was a measure of his clients’ desperation. An appeal has been filed. An application for stay of execution in which parties had been served was pending. And still 1st and 2nd respondents conferred recognition upon 5th respondent.

A near similar thing had happened in Vaswani Trading Company v. Savalakh (supra) and this is how the Supreme Court reacted to the situation at pp. 83-85:

“In the present case there is no doubt that the writ was executed and possession wrested from the applicants whilst their Motion to this Court for a stay of execution was pending and awaiting a date to be assigned by this Court for the hearing of the application. It is true and correct to observe that the Notice of Appeal filed would not operate as a stay of execution and section 24 of the Supreme Court Act makes this more clear; but it is equally correct to point out that the section does not prescribe in favour of any execution being carried out during the pendency of an appeal. Indeed, by its provisions it postulates that during the pendency of an appeal the Supreme Court has got the jurisdiction to accede to an application for a stay of execution conditionally or otherwise. The section does not give any licence, directly or indirectly, for the issue and execution of any processes which may ultimately be offensive. The section simply de-limits the scope of the statutory position of the parties after the filing of a Notice of Appeal. Clearly therefore to employ this section as a springboard for the issue and process of an inopportune execution would be an abuse of the process of the Court. Speaking of the attitude of the courts to an abuse of process, Lord Blackburn said in The Metropolitan Bank Ltd. etc. v. Pooley (1885) 10 A.C. 210, at p.220:-

“But from early times (I rather think, though I have not looked at it enough to say, from the earliest times) the Court had inherently in its power the right to see that its process was not abused by a proceeding without reasonable grounds, so as to be vexatious and harassing – the Court had the right to protect itself against such an abuse;……… ”

See also Logan v. The Bank of Scotland No.2 (1906)1 K.B. 141).

We think that in the circumstances of the present case, the action of the respondents constitutes an abuse of the process of the court. We think also that it is idle for the respondents to argue, as learned counsel on their behalf has attempted to do, that they were not aware of the pending proceedings in this Court. We think that they were so aware.”

I am unable to agree that the respondents acted properly. They pulled the carpet from under the feet of the lower court by doing those very things which the applicants were praying the court at the time to restrain. By the same token they sought to put this court into a position of helplessness so that even if we decide the appeal in favour of the applicants such decision will be rendered nugatory. They thus sought to frustrate the Constitutional right of appeal which the applicants derive from the fundamental Law of Nigeria. They have sought to confront us with a fait accompli and usurp in addition the function of the court.

The 1st respondent is the first law officer of this state and the nominal representative of the Military Governor of Anambra State in this action. The 1st respondent must be exemplary in the observance of the rule of law. My lords, I think we must deprecate the occurrence and stand firmly in upholding the Constitution of Nigeria under which we hold our positions and which we have sworn to maintain without fear or favour.

There is no doubt that the design had been to render the court helpless. But there is still a lot that we can do. It would have been otherwise if the Res is an apple that has been eaten or a house that has been demolished. I think we must by anology draw a parallel from the doctrine of lis pendens in this matter. In Ogundaini v. Araba and Barclays Bank of Nigeria Ltd. (1978) 6 & 7 S.C. at p. 74 the Supreme Court said concerning the doctrine:

“The doctrine of lis pendens prevents the effective transfer of rights in any property which is the subject-matter of an action pending in court during the pendency in court of the action. In its application against any purchaser of such property the doctrine is not founded on the equitable doctrine of notice – actual or constructive – but upon the fact that the law does not allow to litigate parties or to give to them during the currency of the litigation involving any property rights in such property (i.e. the property in dispute) so as to prejudice any of the litigating parties.”

I do not see any difference in principle between selling a property, the subject-matter of a litigation and that in emasculating the right to the property or the right to a declaration. They both form the tangible and intangible Res which must be preserved during the pendency of litigation. In any case, the injury caused by interfering with a tangible or intangible Res which is the subject-matter of litigation either must prejudice the litigating parties.

In this connection I call to mind the statement of Lord Coke referred to by Oputa J.S.C. in Osagie v. Oyeyinka (1987) 3 NWLR (Part 59) 144 at 156 concerning ‘lis pendens’ – “Pendente Lite nihil innoventur.”

“Nothing should be changed during the pendency of an action.”

This court ought not to countenance the recognition accorded to the 5th respondent. To do otherwise is to leave the decision in a pending court case in the hands of one of the parties. I shudder to think of the consequence of such widespread practice if allowed unchecked. It must lead to chaos. The court does nothing in vain. The litigation in this matter is not yet at an end and we have a duty to protect the subject-matter of it.

The act of 1st and 2nd defendants/respondents in recognizing the 5th defendant/respondent when they are aware an appeal is still pending and while application for stay of execution was pending before the lower court is null and void and of no effect whatsoever. I ought to set aside the recognition. It is accordingly set aside.

I also make an order restraining the 1st and 2nd respondents, their servants and or agents from recognising the 5th defendant/respondent as the traditional ruler of Awka pending the determination of this appeal.

I am aware that the Orders made herein are of general interest to the peace loving people of Awka. I therefore reiterate for the avoidance of doubt that we have not in this court decided that the 5th defendant is not entitled to be the Ruler of Awka nor have we said he is entitled. All we have said is that parties should leave the court free to decide the matter. None should place any obstacle in the way of the court in this quest. It is hoped that parties and their supporters will understand the true import of this ruling and continue to keep peace in Awka and its environs.

I award in favour of the applicants against respondents cost assessed and fixed at N250.00.

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Other Citations: (1988) LCN/0049(CA)