Chief Alexander Owo & Ors. V. Most Rev. Dr. J.a. Adetiloye & Ors. (1998)

LawGlobal-Hub Lead Judgment Report

AKPABIO, J.C.A.

This was an application brought on behalf of the present applicants who were the plaintiffs at the trial court, and had obtained an ex-parte injunction before Akubuilo, J. of Anambra State High Court sitting at Oji River, against the respondents who were the defendants. The defendants being dissatisfied with the said order of ex-parte injunction, appealed to this court. Following closely after the filing of the notice and grounds of appeal, the appellants also filed in this court an application seeking for six reliefs, Nos. 4 and 5 of which read as follows:-

“4. An order suspending and/or staying the execution of the ex-parte order of injunction dated 19th May, 1997 made by P.C. Akubuilo J. at the High Court, Oji River pending the determination of this appeal.

5. An order staying any and further proceedings in the substantive suit pending the determination of this appeal” (Coram Achike, Ejiwunmi & Ubaezonu, J.J.C.A.)

However, just as this court was about to give its ruling on the above application, the learned counsel for the plaintiffs/respondents rushed in with another application filed by himself, which he said had the potential of disposing of the entire appeal. This application should really have been a preliminary objection. The said application read as follows:-

“an order striking out the notice of appeal dated 21st May, 1997 and filed on 22nd on the ground that the said appeal is premature and incompetent being based on an interim order which would lapse on a certain date or upon the happening of a certain event, and that the application and the appeal amount to abuse of court process. ”

The court graciously allowed him to move his motion, the sum total of which was that under s. 15(1) of the Court of Appeal Act, 1976 any order made ex-parte could not be appealed against. His opponents countered by referring to section 220(1)(b) and (g) (ii) of the constitution of the Federal Republic of Nigeria, 1979, which made provisions for appeals from the High Court to Court of Appeal to be as of right in the following cases, inter alia,

“220(1)(b) where the ground of appeal involves questions of law alone decisions in any civil or criminal proceedings;

(g)(ii) where an injunction or the appointment of a receiver is granted or refused.

This court brought the argument of the defendants/applicants/respondents to the effect that s.15(1) of the Court of Appeal Act, 1976 was superceded by S.220(1)(b) and (g) (ii) of the 1979 Constitution of the federal republic. They held therefore that the appeal of the defendants/appellants/respondents to this court was competent and not premature. They therefore dismissed the plaintiffs/respondents/ applicants application asking them to strike out respondents notice of appeal against the interlocutory order of the lower court for injunction made ex-parte with costs of N1,000.00 to the respondents.

The applicant was dissatisfied with the above ruling of this court and so appealed to the Supreme Court on 15/7/97. He did not and there; on the same 15th July, 1997, he filed another application to this court, praying inter alia for:-

“(a) An ORDER of stay of proceedings in this appeal, pending the hearing and determination of the appeal lodged by the applicant to the Supreme Court of Nigeria against the ruling of this honourable court delivered on the 18th June, 1997. The said application was supported by a ten paragraph affidavit, to which was exhibited a copy of their notice and grounds of appeal marked Exbt.. ‘A’, while the ruling appealed against was exhibited to a further Affidavit as Exbt. ‘Z.”’

At the oral hearing of this application on 3rd March, 1998 learned counsel were given opportunity to highlight and emphasize salient points in their cases, and they did so as follows:-

Chief Enechi Onyia, SAN (with whom was E.C. Igwe) for the Appellants/Applicants pointed out that the ruling appealed against was in respect of jurisdiction and so was final. He then moved his motion supported by his 10-paragraph affidavit. He further pointed out that their main purpose in bringing this application was to preserve the’ ‘status quo” pending the determination of the appeal. He said it was the duty of this court to be conscious of the consequences of its refusal to grant this order. He then cited the case of Shodeinde v. Ahmadiya Movement in Islam (1980) 1-2 S.C. 163 at 175. He then pointed to the fact that there was no counter-affidavit whatsoever, and therefore urged the court to accept their facts as valid. He then submitted that refusing their application would amount to denying them right of appeal. He said the right of an appellant to appeal should not be impeded. He then cited the cases of Wilson v. Church No. 2 (1879) 12 Ch. Diy. 454 & 459. Also Vaswani Trading Co. v. Salvalakh (1972) 1 All NLR (Pt. 2) 483, John A. Nwabueze v. Obioma Nwosu (1988) 4 NWLR (Pt.88) 257 at 268. The complete citation was to come. He finally subrnitted that there was special circumstances for the grant of this application and so urged the court to grant his application. Replying to the above arguments, it was submitted on behalf of the respondents by their learned counsel Chief O. Ugolo (with whom was Mrs. C.T. Nwangene) as follows:-

He first observed that the notice and grounds of appeal filed as Exbt. ‘A’ to this application was only a “proposed notice and grounds of appeal. They must show that they have actually filed a notice of appeal in this court’s registry. He cited the case of Asare and Ors v. Lemomu (1994) 7 NWLR (Pt. 356) 284 at 290 – 291.