Hon. Moses Bisuakefe & Ors V. Hon. (Dr.) Godwin Amanke (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

KUMAI BAYANG AKAAHS, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the exparte order granted by the Cross River State High Court, Obudu on 1st March, 2010 but dated 22nd February, 2010 in Suit No. HD/36/2009. The 2nd 8th Appellants who are members of the Obanliku Legislative Council sent a petition addressed to the 1st Appellant as Leader of the Obanliku Local Government Legislative Council on 2nd November, 2009 praying the latter to request the Chief Judge of Cross River State to constitute a panel of investigation to investigate allegations of misconduct, corruption and abuse of office made against Hon. Dr. Godwin Amanke, the Chairman of Obanliku Local Government Council of Cross River State. The Chief Judge set up the investigative panel of inquiry to look into the allegations and report to the Appellants in accordance with the Local Government Law of Cross River State.

After he had been served with a copy of the allegations the Respondent instituted suit No. HD/36/09 in the Cross River State High Court, Obudu, on 6/11/2009. The panel commenced sitting on 3/2/2010. On 19/2/2010 the Respondent filed a motion ex-parte seeking leave to bring an application to prohibit the panel members from proceeding with their investigation which was granted on 22/2/2010. A motion on notice pursuant to leave granted on 22/2/2010 was served on the panel members on 23/2/2010. Also on the 22/2/2010 the respondent filed a motion ex-parte and motion on notice seeking both interim and interlocutory orders restraining the Appellants from considering any report from the panel. The ex-parte order was granted on 1st March, 2010 but dated the 22nd February, 2010.

It is against this decision that the Appellants filed their Notice of Appeal on 4/3/2010 containing three grounds of appeal. The Appellants formulated a lone issue from the three grounds of appeal as follows:-

Whether the Learned Trial Judge was not in error to have granted an ex-parte order of injunction upon an originating process that had expired and become stale? (Grounds 1 and 2).

The Respondent filed Notice of Preliminary Objection challenging the jurisdiction of this Honourable Court to entertain the appeal. The objection was based on the following grounds:

(1) The Appellants grounds of appeal did not arise from any decision of the trial court made on the 1st day of March 2010 and thus this Honourable court has no jurisdiction to entertain this appeal.

(2) Appellants’ lone issue is formulated from incompetent grounds of appeal and the issue formulated for determination is also incompetent.

(3) Having regards to the particulars of errors in the two grounds of appeal, Appellants ought to have obtained leave of the trial court or this Honorable Court before raising first instance issue for determination in this Honourable Court.

The Respondent prayed for the following reliefs, viz:

(1) AN ORDER striking out the notice and grounds of appeal filed on the 4th day of March, 2010, the issue formulated therein and the argument filed on the 11th day of November, 2010 for reasons that Appellants did not seek appropriate leave before bringing this appeal.

(2) An Order declaring that the Respondent’s impeachment on the 8th day of March, 2010 is null and void and of no effect whatsoever.

(3) AN ORDER re-instating the Respondent to his office as Chairman of Obanliku Local Government Council to complete his tenure which he lost by 9 months and 7 days as Respondent’s impeachment is a nullity.

The Appellants filed a Reply Brief wherein they reproduced grounds 1 and 2 and their particulars and submitted that the grounds are a direct attack on the decision of the lower court as contained in the ruling of 1st March, 2010 granting the respondent’s ex-parte application. It is the contention of the appellants that as the grounds challenge the jurisdiction of the lower court to make the orders, the complaint on jurisdiction can be raised at any time even in the supreme court for the first time. It is argued that the appellants could not have raised the issue of the staleness of the writ of summons in the lower court since the order was granted through an ex-parte motion. It is submitted that the appellants did not need the leave of the court to file the appeal because section 241 (1)(f)(ii) of the 1999 Constitution confers a right of appeal where an injunction is granted or refused. Being an appeal against the injunctive order of the lower court, there was no necessity to seek leave of the lower court before appealing. It is further submitted that the prayers to declare null and void the impeachment of the respondent and reinstate him to his office as chairman of obanliku Local Government to complete his tenure have no place in a preliminary objection.