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.