Bertrand Nnonye V. Chief D. N. Anyichie & Ors (1988)

LawGlobal-Hub Lead Judgment Report

UWAIFO, J.C.A.

The 3rd respondent applicant contested the Local Government Election held on 12 December, 1987 for the office of councillor for Ifite-Ukpo Ward in the Njikoka Local Government Area. He was declared elected as councillor into the Njikoka Local Government and sworn in. The petitioner/respondent had submitted nomination papers to contest as councillor for that same Ward. On 11th December, 1987 he was, according to him, “casually informed” by the Electoral Officer for Njikoka, one Mr. Ekweozo (2nd respondent) that he had been disqualified from contesting the election. This was, again according to him, when he had heard rumours about his impending disqualification, he went on his own to the Local Government Secretariat at Abagana where he met the said Mr. Ekweozo. In spite of what Mr. Ekweozo was alleged to have told him, he said he duly contested the election “because there was no point withdrawing since to the best of my knowledge the disqualification was not confirmed in writing.”

He claimed that after the votes cast at the election were counted he was announced as the candidate with the highest number of votes, but that he was not declared the winner. Although he was silent as to when the results were announced, it appears from the documents before this Court that it could either have been on 12th December or 14th December, 1987. Counsel for the 3rd respondent/applicant submitted at the lower Court that it was on 14th December but the Judge seemed to have gone on the basis that it was on 12th December. Anyway, it does not matter in the circumstances on which of the two dates the results were declared.

The petitioner/respondent is challenging the election of the 3rd respondent/applicant at the Amawbia/Awka High Court presided over by Obiesie, J. But the 3rd respondent/applicant moved that Court for “an order dismissing the petition as not disclosing cause of action and/or as not being properly before this court, or as being incompetent ab initio and incurably defective.”

The learned Judge in a reserved ruling delivered on 21 June, 1988 dismissed the application with costs of N100.

The 3rd respondent/applicant has appealed against that ruling but in the meantime he brought an application praying this Court for an order staying further proceedings in the Court below of the petition filed as Suit No. AA/LGE.8/88, pending the determination of the appeal. He had also asked for stay of execution of the costs but that prayer was abandoned at the hearing of the application because, as counsel for him informed this Court, the costs had been paid.

When an interlocutory appeal is pending and a stay of proceedings is sought until the determination of the appeal, it seems almost impossible not to express views in reaching a decision to grant that stay which may tend to pre-judge the issues to be decided in the interlocutory appeal. The authorities seem to suggest that that cannot be avoided in deciding on such an application for a stay of proceedings. I only wish to refer to the observation of Karibi-Whyte, J.S.C. in Jadesimi v. Okotie-Eboh & Ors. (1986) 1 N.W.L.R. (Part 16) 264 at 278 inter alia:

“In my opinion, the Court may exercise its inherent jurisdiction to stay proceedings in a pending action when ….. either the action is one which is bound to fail on grounds of law, or that there are other reasons why even if it was concluded it cannot succeed. In such situations it has been demonstrated beyond reasonable doubt that such action is either oppressive and vexatious and ought not to go on being an abuse of the process of the Court. The implication of a finding of a stay of proceedings in an action is the raising of doubt whether there was a cause of action in support of such action.”

(Karibi-Whyte, J.S.C.’s emphasis)

I may add that when there is clear evidence that the proceedings are incompetent or that the court lacks jurisdiction, the proceedings must be stayed or discontinued. The discretion of the Court must be exercised upon those grounds already stated above in accordance with settled principles.

It has been long stated that the competence of a court, among others, depends on whether the subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction; and also whether the case comes before the Court initiated by due process of law upon fulfilment of any condition precedent to the exercise of jurisdiction: see Madukolu v. Nkemdilim (1962) 1 All N.LR. 587; Western Steel Works Ltd. v. Iron & Steel Workers Union (1986)3 N.W.L.R. (part 30) 617.

The question of lack of jurisdiction or competency in law can sometimes be clear on looking at the record or process relating to the proceedings and the legislation governing such proceedings that the court either lacks jurisdiction in the subject matter or the proceedings are so incurably incompetent that the irregularity affects the jurisdiction of the Court to hear or proceed with them. In that case any such proceedings must be terminated. As Lord Wright said in Westminster Bank Limited & Anor. v. Edwards (1942) 1 All E.R. 470 at 474:

“Now it is clear that a court is not only entitled but bound to put an end to proceedings if at any stage and by any means it becomes manifest that they are incompetent. It can do so on its own initiative, even though the parties have consented to the irregularity, because, as Willes, J., said in London Corpn. v. Cox (1867) LR. 2 HL 239, in the course of giving the answers to the judges of the House, ‘mere acquiescence does not give jurisdiction’.”

This observation was cited with approval by the Supreme Court in Skenconsuit Nigeria Limited & Anor. v. Godwin Sekondy Ukey (1981) 1 S.C. 6.