Job Ike & Ors. V. Patrick Nzekwe & Ors.(1975)

LawGlobal-Hub Lead Judgment Report

O. ELIAS, C.J.N.

In Suit No. 0/106/69 before the high Court of Onitsha, Egbuna, J., gave judgment in favour of the defendants and dismissed the claim of the plaintiffs who claimed as follows:

“1. Title to a piece and parcel of land known as and called’ Ani Ofia Udo Okwuefi’ as delineated and verged ‘pink’ in Plan No. L/D. 289 filed with the Statement of Claim.

2. 100 damages for trespass against the defendants jointly and severally.

3. A perpetual injunction to restrain the defendants, their servants and/or agents from further acts of trespass on the said land.”

The real problem, which arose for determination in this appeal brought by the plaintiffs was the fact that the Writ of Summons had been issued on July 21, 1969 “in the High Court of the Republic of Biafra”, and so had been the Statement of Claim. The Nigerian civil war came to an end about the middle of January, 1970, but the proceedings in the instant case were not resumed until Monday, March 15, 1971, when the High Court of Onitsha granted a motion for the extension of time in which the plaintiffs could file an Amended Statement of Claim, followed by the Statement of Defence, The proceedings came to an end with the judgment of Egbuna, J., at the Onitsha High Court, from which the present appeal has been brought before the Supreme Court on the following grounds:

“1. The proceedings in the High Court of Onitsha and the judgment delivered thereof are a nullity in that the High Court took over and completed the proceedings in a case which was commenced in a Court not known to the Constitution of Nigeria, to wit, the High Court of Biafra.

2. The learned trial judge erred in law by assuming jurisdiction to hear and determine an action, which was instituted in a Court not known to the Laws of Nigeria, namely, the High Court of Biafra.

3. The learned trial judge erred in law by awarding cost against the appellants in that he had no jurisdiction to hear and determine the case. ”

The Court had before it two documents, one being a motion by counsel for the appellants for accelerated hearing of the appeal, the other being a paper filed by counsel for the respondents which carried not title or reference to any relevant Rule of Court. The motion for accelerated hearing, learned counsel for the appellants conceded, had been overtaken by the listing of the appeal for hearing. With regard to the document filed by the respondents’ counsel, it seems necessary to reproduce it here. It reads as follows:

“Take Notice that the Respondents intend to raise, at the hearing of this appeal, the following Constitutional Question, viz:

Whether or not the decision of this Honourable Court given on the 18th day of November, 1971 in Suit No. SC/225/71: Ifegbu & Ors. v. Ukaefi & Ors. declaring the East-Central State Judicial Acts (Validation) Edict No.3 of 1967 invalid, is void having regards to the provisions of the Federal Military Government (Supremecy and Enforcement of Powers) Decree No. 28 of 1970.
Dated this 29th day of January, 1975.” The Court pointed out that this strange document cannot be regarded either as a notice of preliminary objection to the appeal being brought, nor as a cross-appeal on the part of the respondents. Learned counsel agreed that it is no more than an advance notice of what might be urged as part of the reply that would be given in the course of argument.

We accordingly invited learned counsel for the appellants to argue his grounds of appeal. Mr Anah asked and was granted leave to argue grounds 1 and 2 together first. He submitted that the judgment obtained by the defendants In Suit No.0/106/69 delivered by Egbuna, J., on May 26, 1973, was a nullity and that the learned trial judge ought to have refused to assume jurisdiction over the hearing of the claim. His reason is that the claim originated in a so-called “Biafran High Court” and the consequential order that the plaintiffs were given 120 days within which to file their Statement of Claim and plan and serve the same on the defendants who were also given 150 days after such service to file their Statement of Defence and plan, was that of the self-same court. Learned counsel, therefore, submitted that the trial judge was wrong to have taken over the proceedings which originated in a non-existent court because it was not one of the 12 State High Courts existing within the Federation of Nigeria since May 27, 1967.

He referred to the decision of this Court In Uttah v. Independence Brewery Ltd. (1974) 2 S.C. 7, in which it was held that the proceedings before Aniagolu, J., at the High Court, Umuahia, delivered on April 17, 1972, in consequence of an action that had been commenced in the so-called High Court of “Biafra” on December 28, 1967, were a nullity, since they were “based on the report of a referee appointed by Aniagolu, J., in his capacity as a judge of a non-existent High Court of the so-called Biafra, and that no appeal could lie from such an entity to the Supreme Court of Nigeria”. Learned counsel also referred to our decision in Okwuosa v. Okwuosa (1974) 2 S.C. 13, at p.19 of which we observed as follows: