Chief Danjuma Achor & Anor V. Mahionu Aduku & Anor. (2005)

LawGlobal-Hub Lead Judgment Report

MARY PETER-ODILI, J.C.A.

In a motion on notice dated 29th July, 2004 the appellants/applicants prayed for the following reliefs:

1. An order staying the execution of the orders of High Court of Justice Ayangba in its judgment delivered on 4/3/2004 in suit No. AYHC/7/2001 pending the hearing and determination of this appeal.

AND for such further or other orders as this Honourable Court may deem fit to make in the circumstance of this appeal.

The applicants premised the application on the following grounds:

(a) The lower court made an order restraining the 2nd appellant/applicant from recognising the 1st appellant/applicant as Ohioga-Atta.

(b) The lower court refused to grant this same application for stay of execution of its orders against the 1st appellant on 20/7/2004.

The application was moved on the 17/2/05 by Mr. Akubo, learned counsel for the applicants. He stated that the application is brought pursuant to Order 3 rule 3(1) and (3) of the Court of Appeal Rules, 2002 and s.16 of the Court of Appeal Act and under the inherent jurisdiction of court. That the application is praying for an order staying the judgment of the High Court Ayangba of 4/3/2004 in suit No. AYHC/7/2001 pending the hearing and determination of this appeal. That the application is supported by a 34 paragraphs affidavit with the annexures of exhibits A, B, C and D. There is also a further and better affidavit of 9/11/2004 and another one of 4 paragraphs of 4/11/2004.

Learned counsel said the main question is whether there is a valid appeal raising substantial issues of law for determination on appeal. That there is need for an applicant to show that there are special circumstances why the application should be granted in their favour. That the issue of special circumstance is very wide. Learned counsel said that in the instant case, the grounds of appeal as per exhibit C raise issues of law which are substantial, that is the issue of locus standi of the respondent to maintain the action before the trial court. That ground is a challenge to the jurisdiction of the court to hear and determine the matter before it which is a special circumstance. He cited the case of V.O.S. Olunloyo v. Adedapo Adeniran (2001) 14 NWLR (Pt.734) 699, (2001) FWLR (Pt. 73) 4 at 47 – 48; Vincent Standard Trading Co. Ltd. v. Xtodeus Trading C Co. (Nig.) Ltd. & Anor. (1993) 5 NWLR (Pt.296) 675, (1993) 6 SCNJ (Pt. 2) 282 at 299.

The learned counsel for the applicant further contended that the applicant’s ground 4 as contained in exhibit C raises another issue of law on appeal. That the other special circumstance by the Igala custom relating to the stool in question is that once an “Ohioga” is debeaded, he cannot be beaded again. That if the judgment of the lower court is executed, there cannot be a return to status quo. He referred to paragraphs 31 – 33 of supporting affidavit. Also that the other special circumstance is that by Igala custom, the stool cannot be left vacant and a regent cannot be appointed to take charge of the stool. He referred to the case of Odedeyi v. Odedeyi (2000) 3 NWLR (Pt.650) 655, (2000) 2 SCNJ 131 at 133.

Learned counsel concluded that the balance of justice in this application tilts in favour of 1st applicant because he is the incumbent “Ohioga Attah”. That the respondents have no interest in the stool.

He referred to paragraph 3(e) (6) of the further and better affidavit of 4/11/2004. That in the interest of justice, the application should be granted as the respondents have nothing to lose. He stated further that the contention of the respondents at the lower court that the reliefs 3 and 4 of the judgment are executory in nature and the respondents attempt at enforcing the positive order of the lower court.

He cited P.S. Yaro v. Arewa Construction Ltd. & Anor. (1998) 7 NWLR (Pt.558) 368, (1998) 6 SCNJ 1 at 1214. Learned counsel urged the court to discountenance the counter-affidavit.

In reply, learned counsel for the respondents, Mr. Haruna stated that respondents filed two sets of counter-affidavits which were filed on 9/11/04 and 25/1/05 respectively. He stated that the application is incompetent having regard to the plaintiff/applicant’s claim before the lower court which was declaratory in nature. He referred to pages 10, 19 – 20 of exhibit A to the main affidavit which is the judgment of the lower court. Also reliefs (a) and (d) in paragraph 9 of exhibit D which constitute the main claim of the plaintiff before the lower court. That reliefs C and D are only ancillary or consequential.

He cited the cases of Tukur v. Government of Gongola State (No.2)(1989) 4 NWLR (Pt. 117) 517; Ajomale v. Yaduat (1991) 5 NWLR (Pt.191) 266, (No.2) (1991) 5 SCNJ 178 pp. 190 – 193. Learned counsel for the respondent referred the court to the definition of ancillary or consequential reliefs in the case of Momoh v. VAB Petroleum Inc. (2000) 4 NWLR (Pt.654) 534, (2000) FWLR (Pt. 5) 806 pp. 821 – 823.