Chief Victor Ukwu & Ors V. Chief Mark Bunge (1997)

LAWGLOBAL HUB Lead Judgment Report

O. OGWUEGBU, J.S.C. 

This is an interlocutory appeal by the 3rd defendant against the ruling of the Court of Appeal, Port Harcourt Division dated 10th January, 1991. The 3rd defendant who is the appellant herein filed an application in the court below praying the court for the following orders:

“(i) An order pursuant to Order 3 Rule 4(1) of the Court of Appeal Rules, 1981, extending the time within which the 3rd defendant/ appellant/applicant is allowed to week leave to appeal against the ruling of the Ahoada High Court delivered on the 10th of July, 1981.

(ii) An order pursuant to order 3 Rule 4(1)of the Court of Appeal Rules, 1981, extending the time within which the3rd defendant/appellant/applicant is allowed to appeal against the ruling of the Ahoada High Court delivered on the 10th day of July, 1981.

(iii) An order pursuant to section 221 of the Constitution of the Federal Republic of Nigeria, 1979 granting leave to the 3rd defendant/appellant/applicant to appeal against the ruling of the Ahoada High Court delivered on the 10th day of July, 1981.

(iv) ….

(v) ….

The court below dismissed the application hence this appeal. The plaintiff/respondent instituted an action against the 3rd defendant/appellant and three others claiming various declaratory reliefs as well as an injunction restraining the 3rd defendant/appellant and the 4th defendant/respondent from parading themselves as and performing or continuing to perform any of the functions of the chieftaincy office of Oda-Abuan and that of his Prime Minister. At the close of pleadings, the 3rd and 4th defendants filed a motion on 27th October, 1980 challenging the jurisdiction of the High Court of Rivers State to entertain the plaintiff’s claims and prayed the court to dismiss the action. The ground for the objection was that the cause of action arose in 1978 when the 1979 Constitution had not come into force.

It was contended on behalf of the applicants during the hearing of the motion to dismiss the suit before Okara, J. that the jurisdiction of the High Court of Rivers State to entertain the suit which is a chieftaincy matter was ousted by section 161(3) of the Constitution of the Federal Republic of Nigeria, 1963. The application was dismissed and there was no appeal against the dismissal. There was yet another application which was filed in the High Court on behalf of the appellant by another counsel challenging the jurisdiction of the High Court. This second application was also dismissed and there was no appeal against that ruling. The reasons for his failure to appeal can be gathered from paragraphs 9-17 and 21 to 23 of his affidavit in support of the application for leave to appeal. He deposed as follows:

“9. On the 10th day of July, 1981 the High Court dismissed my motion and ruled that it has jurisdiction to hear the case.

10. Following the facts deposed in paragraph 9 above, I instructed my counsel aforementioned to appeal against the ruling. He advised me to wait until final judgment after which I can attack the ruling of the High Court refusing my application for dismissal, as he was of the view that the substantive case will be disposed off (sic) in a short time.
11. The matter could not be heard on time as my counsel advised due to the fact that the Presiding Judge P.G. Okara (late) was transferred out of Ahoada Judicial Division. The hearing of the matter was not started before P.G. Okara (late).
12. I later briefed Chike Ofodile Esq. S.A.N. to be my leading counsel in this case.
13. In the course of my instructions to Collins Ikebudu Esq. one of the junior counsel in the Chambers of Chike Ofodile S.A.N. my leading counsel in this case, I did bring to his knowledge the ruling referred to in paragraph 9 above and insisted that it should be appealed against.
14. I was informed by Collins Ikebudu that instead of appealing against the ruling referred to above that it will be necessary to file a fresh motion challenging the jurisdiction of the court.

14(a) I was further advised by Collins Ikebudu and I verily believed him that if the court refuses my fresh application challenging its jurisdiction it will then be necessary to appeal against the respective rulings of the lower court together.

15. On 17th October, 1986 Chambers of Chike Ofodile filed a motion-on-notice challenging the jurisdiction of the court.
16. On the 21st January, 1987 the court dismissed the application on the ground of res-judicata since a similar application on lack of jurisdiction has been heard and dismissed by the same court. My counsel instead of appealing against the rulings as promised preferred to go into trial on the matter contrary to the advice referred to in paragraph 14(a) above.
17. My failure to appeal against the ruling referred to in paragraph 9 above was due to no fault of mine. It was as a result of my counsel’s failure to follow my instructions to them.
18. By reason of the facts deposed to in paragraph 20 above, I renewed my plea to my leading counsel Chike Ofodile Esq. S.A.N. to appeal against the ruling of the court referred to in paragraph 9 above which he now accepted to do after personally going through the ruling.
19. I am informed by my leading counsel – Chike Ofodile S.A.N. and I verily believe him that the time within which I am allowed to appeal to this court against the ruling afore mentioned has since expired and that it will be necessary to file the instant application in order to exercise my right to appeal against the said ruling.
20. My counsel aforesaid also informed me and I verily believe him that the only ground of appeal he intend (sic) to canvass before this court borders on the jurisdiction of the High Court to entertain the plaintiff’s claim.”

He averred in paragraphs 19 and 20 of the affidavit that the plaintiff closed his case on 9th November, 1989 and that the defendants are yet to open their defence. The material averments in the counter-affidavit of the plaintiff/respondent are paragraphs 7, 8 and 9 and they read thus:

“7. In the statement of claim of the plaintiff/respondent the reliefs sought against the defendants jointly and severally were for series of declarations most of which do not challenge the appointment and or recognition of defendant/applicant and consequently not affected by the applicants (sic) motion relating to jurisdiction of the trial court.

8. There are no reliefs in the further amended statement of claim of the plaintiff/respondent challenging the appointment and/or recognition of the defendant/applicant which said further amended statement of claim is contained in Exhibit “A” attached to the defendants/Applicant (sic) affidavit in support of this motion.
9. This case would have been finished long ago by the trial Judge but for the defendant/applicant who always seeks for adjournment as a delay tactics to keep this case indefinitely in court.”

As stated earlier, the court below dismissed the application of the 3rd defendant/appellant for extension of time within which to seek leave to appeal. The appellant was dissatisfied with the ruling and has appealed to this court. I have set down at length the background to the application and the materials before the Court of Appeal when it dismissed the application.