The Governor of Abia State & Ors. V. Hon. Chief Joseph Anawanti & Ors. (2007)
LawGlobal-Hub Lead Judgment Report
OLUFUNMILOLA OYELOLA ADEKEYE, J.C.A.
In an application filed on the 7th of August 2006 the defendants/appellants the Governor of Abia State, the Attorney General of Abia State, the Abia State House of Assembly and the Abia State Independent Electoral Commission prayed this court for order as follows:-
“To stay Further proceedings in suit NO FHC/ARJ/CS/96/2006
Hon Chief Joseph Anawanh & 4 ors v. The Governor of Abia State & 7 others pending the hearing and determination of Appeal lodged against the Ruling/order of the lower court of 3/7/06.”
The background facts culminating into filing of this appeal were that the originating processes in the original suit FHC/ABJ/CS/96/06 was filed on 1/3/06 Challenging the constitutionality of Abia State Local Government (third Amendment) law 2004 and Tenure elongation, The appellants/applicants as defendants entered appearance on protest and filed Notice of Preliminary Objection against the suit on 10/3/06.
The 1st – 5th Respondents as plaintiffs filed Notice to amend their originating process on 9/3/06, while two motions one raising objection against the jurisdiction of court and another for amending the originating process were pending before the same court, the trial court proceeded to hear the motion for amendment and granted same.
The application to raise preliminary objection to the trial courts jurisdiction was argued on 5/6/06 while the Respondents were to reply on 3/7/07. On 16/6/06 the Governor of Abia State 1st defendant/appellant dissolved the local Government Councils in Abia State following the expiration of their two year tenure.
The 1st – 5th Respondents thereafter filed an ex-parte motion on 22/6/06 for an order that the 1st -4th Appellants/applicants should come and show cause and there was another motion filed on 23/6/06 for the committal of the Attorney-General of Abia State and the Speaker Abia State House of Assembly to prison for disobeying the order of court made on 10/3/06 directing the parties in the suit not to do anything that will overreach the hearing of the pending applications before the trial court. On the 3rd of July 2006 they were before the court a part heard application raising preliminary objection to the jurisdiction of the trial court to entertain this suit, another application to show cause and committal to prison of the 1st – 4th appellants/applicants for disobedience of the order of court made in the sale suit. The trial court ruled that it will not entertain the motion challenging its competence and jurisdiction until after hearing of an order to show cause and motion on notice for committal.
Being aggrieved by this order made by the lower court the 1st – 4th appellants/applicants appealed to this court. Meanwhile an application for stay further proceedings of the suit at the lower court was made to the court which was refused. Order 3 Rule 3 of the Court of Appeal Rules is now being invoked for this application. A copy of the Notice of Appeal is attached to the application as Exhibit 6, the Record of Proceedings of 3/7/06 as Exhibit HAG5, the record of proceedings of 10/3/06 is marked Exhibit HAG 1A, and the Ruling of the lower court refusing the application for stay of proceedings is marked Exh 7 attached to the further affidavit of the applicant.
In arguing the application for stay of proceedings Mr. Onyeike refers to the 30 paragraphs affidavit in support. This court is urged to hold that the grounds of appeal raise substantial issues of law bothering on procedure, competence and jurisdiction of the court to entertain the motion for committal first and whether an order of court was made on 10/3/06 or a directive given. It is necessary to grant a stay of further proceedings pending the hearing, and determination of the appeal filed, and that granting such order will not prejudice any of the parties to the application. The 1st-5th Respondents in opposing the application referred to the 22 paragraphs counter affidavit filed on 13/10/06. The appellants/applicants announced the dissolution of local Government Councils Abia State in disobedience of the order of court made on 10/3/06 that parties should maintain status quo and should not do anything that will overreach tile subject-matter of this suit. The lower court made an order on 23/6/06 directing the 2nd appellant/applicant to show cause why an order of committal should be made against him and why he should not be committed to prison for contempt. Instead of reacting to the order of the lower court, the applicant brought an application for stay of proceedings of the trial pending the determination of his appeal. It is the contention of the 1st – 5th Respondents that party who has disobeyed an order of court should first and foremost purge himself of contempt before bringing any application before same court. The appellants/applicants have not purged themselves of the contempt of court hence their application for stay of proceedings ought to be disregarded.
Anybody that comes to equity must come with clean hands. The Res to be preserved is the continued disobedience of order of court.
Lawal v. Osula 1995 3 NWLR Pt 382 pg. 128
Gov. of Lagos State v. Ojukwu 1986 2 NWLR Pt.18 pg. 621
I have carefully considered the submission of counsel for the parties in this application for stay of further proceeding of the trial court pending the appeal lodged against the order of court made on 3/7/06.
The controversial order of court made on 3/7/06 reads:-
“The prime issue to tackle this morning is the issue of contempt of the court and until that is determined there is no further steps this court will take in the matter.”
The two applications scheduled for hearing on 31/05 before the trial court are:-
(a) Application to show cause and motion for committal of the 2nd – 3rd appellants/applicants for disobedience of court order made on 10/3/06
(b)-i. Application to set aside court order made Ex-parte on 23/6/06 for the 2nd defendant to show cause,
(II) To set aside or strike out the motion on Notice for committal flied on 23/6/06 against the 2nd defendant/appellant and Speaker Abia State House of Assembly
(iii) An order to discharge the aforesaid order made by this Honourable Court on 10th March 2006
On the 10/3/06 the two motions before the court were-
(a) The Respondents motion filed on 9/3/06 to amend their originating summons
(b) Notice of preliminary objection to the trial courts jurisdiction in the suit.
After hearing both parties the court, gave order as follows:-
“Since the parties have submitted issue for determination none of the parties should do anything that will overreach the hearing of the pending application.”
The Notice of Preliminary objection filed on 10/3/06 is attached to this application as Exh HAG 1. The Notice of Preliminary objection reads:-
“Take Notice that this Honourable Court will be moved on …. the …. day….. of…..2006 at the hour of 9’oclock in the forenoon or soon thereafter as counsel may be heard on behalf of the 1st – 4th defendants/applicants herein praying the court for the following orders:-
(1) That the plaintiffs have no locus standi to maintain this suit
(2) That the court lacks the requisite jurisdiction to entertain this suit
(3) That the plaintiff’s action is incompetent.
Grounds for this objection are as follows-
(I) That the issue of tenure of Local Government is within the Legislative competence of the State Houses of Assembly
(II) That subject to the provisions of section 251 of the 1999 constitution this court has no jurisdiction to hear this suit.
(III) The suit as presently constituted does not disclose any claim against any Federal Government Agency.
That was the scenario when the lower court made the order directing parties to maintain status quo.
A party applying for a stay of further proceedings invokes the discretion of court which cannot be exercised as a matter of course but judiciously and judicially with extreme caution. The demands of justice dictates that when a party intends to exercise his constitutional right of appeal in a matter, the order for stay of further proceedings must be made for the preservation of the res the subject-matter of the dispute so as to ensure that the appeal if unsuccessful is not rendered nugatory, Since the very essence of stay of further proceedings in a litigation is anti-thesis to speedy hearing of the case – the majority opinion leans unfavourably against the grant of a stay of proceedings pending the determination of an appeal where the grounds are lacking in substance, frivolous and grossly incompetent. The exercise of discretion of court to grant or refuse a stay of proceedings pending an appeal against an interlocutory order depends on the peculiar facts and circumstance of each case. A major consideration where an interlocutory order does not finally dispose of the case is that it could be wrong to stay proceedings simply because of an appeal which has been lodged against it by an aggrieved party as such an order could be made the subject of appeal after the final judgment. If the interlocutory appeal, if successful will without much ado put an end to the proceedings in the trial court prudence dictates that a stay of proceedings should be granted.
One of the yardstick followed by court in decided authorities is that an application to stay further proceedings must disclose first from the affidavit evidence and the exhibited notice of appeal that the grounds of appeal are substantial and arguable. It is acceptable as special and exceptional circumstance where the grounds of appeal raise a genuine issue of jurisdiction and not merely as ploy to delay the hearing of the case. I have looked at Exh 6 the Notice of Appeal attached to this application and conclude that the grounds of appeal raise issue of jurisdiction and competence of court which is genuine, substantial and arguable. The document attached to the application Exh HAG 1 – the Notice of Preliminary Objection filed on 10/3/06 cannot be overlooked as the content strengthens the application for stay of further proceedings.
Kigo (Nig) Ltd v. Holman Bros (Nig) Ltd 1980 5.7 SC 60
Eze v. Okolonji 1997 7 NWLR pt 513 pg 515
Jadesimi v. Okotie.Ehoh 1986 1 NWLR pt 16 pg 264
Owena Bank Nig Plc v. Olatunji 199913 NWLR pt 634 pg 218
United Spinners Nig Ltd v. Chartered Bank Ltd 2001 14 NWLR pt.732 pg 195
Ayeni v. Eledo 2005 12 NWLR pt.939. pg 368
Kotoye v. Saraki 19935 NWLR pt 296 pg 710
Sodeinde v. Registered Inistees of the Ahmadiyya Movement-in-Islam 1980 1.2 se pg 163
N.A.A. v. Enyi 2001 15 NWLR pt 735 pg 173
Where an objection to an issue of jurisdiction or competence of a court is raised, it ought to be resolved first one way or the other before the court proceeds to hear the case on its merits. Any failure by the court to determine any preliminary Objection or any form of challenge to its jurisdiction is a fundamental breach which renders any further step taken in the proceedings a nullity.
Madukolu v. Nkemdilim 1962 2 SCNLR 341
Sofekun v. Akinyemi 1981 1 NCLR 135
NDIC v. CBN 2002 7 NWLR pt 766 pg 272
Afro-Continental Ltd v. Co-op Association of Professionals Inc 2003 5 NWLR pt 813 pg 303
NDIC v. S.B.N 2003 1 NWLR pt 801 pg 311
Jurisdiction is the lifeline of every judicial proceedings before any court or tribunal without which all subsequent proceedings are fruitless, futile and a nullity because the issue of jurisdiction is fundamental to the proper hearing of a cause.
Madukoh v. Nkemdilim 1962 2 SCNLR 341
Matari v. Dangaladima 1993 3 NWLR pt 281 pg 266
Jurisdiction is a term of comprehensive import embracing all kinds of judicial action it is basically the legal right by which the judges exercise their authority including the power to hear and determine the subject-matter in controversy between parties to a suit. It is the basis, foundation and conduit of access to Court in adjudication under Nigerian civil process. As courts are set up under the Constitution, Decrees, Acts, laws and Edicts they vest the courts with the powers and jurisdiction of adjudication. As defect in competence is extrinsic to adjudication the court must first of all have jurisdiction before it can proceed on any adjudication.
Since jurisdiction is the authority of a court to exercise judicial powers when it assumes jurisdiction to hear a case, the court must first and foremost be competent before it can proceed on any adjudication. This is the reason detre behind the procedural principle that where there is a challenge to the jurisdiction of court, it must be entertained before any other applications in the suit so as not to be involved in an exercise which may turn out to fruitless and the decision arrived at in such a case amounts in law to a nullity.
Ogunmokun v. Milad Osun State 1999 3 NWLR pt. 594 pg 261
A.G Lagos State v. Dosunmu 1989 3 NWLR pt 111 pg 552 at pg 602
NDIC v. SPN Plc 2003 1 NWLR pt 814 pg 311
Ezemo v. Oyakhire 1985 1 NWLR pt 2 pg 195
Oloriode v. Oyebi 1984 1 SCNLR pg 390
Skenconsult v. Ukey 1981 1 SC 6
Continental Trust Bank Ltd v. Balogun 2003 FWLR pt 162 pg 1908
First Fuels Ltd v. N.N.P.C. 2007 2 NWLR pt 1018 pg 276
Although the general Rule is that a contemnor will not be heard there are some recognized exceptions to the said rule which are as follows:-
(a) Where the party is seeking for leave to appeal against the order for which he is in contempt.
(b) Where the contemnor tends to show that because of the procedural irregularities in making the order, it ought not be sustained
(c) Where the order is being challenged on the ground of lack of Jurisdiction and
(d) Where the contemnor seeks to be heard in defence of the order.
The applicant seeks to be heard on the issue of competence that is jurisdiction of the lower court in the pending appeal. The foregoing is to highlight the reasons for exercising the discretion of this court to grant this application for further stay of proceedings in favour of the applicant.
The appeal succeeds. The Ruling of the lower court is accordingly set aside. It is the order of this court that further hearing in suit FHC/ABJ/CS/96/06 be stayed pending hearing and determination of the appeal in this court.
Other Citations: (2007)LCN/2329(CA)
