Job Ike & Ors Vs Patrick Nzekwe & Ors (1975) LLJR-SC

Job Ike & Ors Vs Patrick Nzekwe & Ors (1975)

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ELIAS, CJN. 

In Suit No. 0/106/69 before the High Court of Onitsha, Egbuna, J., gave judgment in favour of the defendants and dismissed the claim of the plaintiffs who claimed as follows:-

“1. Title to a piece and parcel of land known as and called ‘Ani Ofia Udo Okwuefi’ as delineated and verged ‘pink’ in Plan No. L/D/ 289 filed with the Statement of Claim.

2. £100 damages for trespass against the defendants jointly and severally.

3. A perpetual injunction to restrain the defendants their servants and/or agents from further acts of trespass on the said land.”   The real problem which arose for determination in this appeal brought by the plaintiffs was the fact that the Writ of Summons had been issued on July 21, 1969 “in the High Court of the Republic of Biafra”, and so had been the Statement of Claim.

The Nigerian Civil War came to an end about the middle of January, 1970, but the proceedings in the instant case were not resumed until Monday; March 15, 1971, when the High Court of Onitsha granted a motion for the extension of time in which the plaintiffs could file an Amended Statement of Claim, followed by the Statement of Defence. The proceedings came to an end with the judgment of Egbuna, J., at the Onitsa High Court from which the present appeal had been brought before the Supreme Court on the following grounds:-

“1. The proceedings in the High Court of Onitsha and the judgment delivered thereof are a nullity in that the High Court took over and completed the proceedings in a case which was commenced in a court not known to the Constitution of Nigeria, to wit, the High Court of Biafra.

2. The learned trial Judge erred in law by assuming jurisdiction to hear and determine an action which was instituted in a court not known to the Laws of Nigeria, namely, the High Court of Biafra.

3. The learned trial Judge erred in law by awarding cost against the appellants in that he had no jurisdiction to hear and determine the case.”   The court had before it two documents, one being a motion by counsel for the appellants for accelerated hearing of the appeal, the other being a paper filed by counsel for the respondents which carried no title or reference to any relevant Rule of Court. The motion for accelerated hearing, learned counsel for the appellants conceded, had been over-taken by the listing of the appeal for hearing. With regard to the document filed by the respondents’ counsel, it seems necessary to reproduce it here.

It reads as follows:   “TAKE NOTICE that the respondents intend to raise, at the hearing of this appeal, the following Constitutional Question, viz:- Whether or not the decision of this Honourable Court given on the 18th day of November, 1971 in Suit No. SC/225/71: Ifegbu & Ors. v. Ukaefi & Ors. declaring the East-Central State Judicial Acts (Validation) Edict No. 3 of 1970 invalid, is void having regards to the provisions of the Federal Military Government (Supremacy and Enforcement of Powers) Decree No. 28 of 1970. Dated this 29th day of January, 1975.”

The court pointed out that this strange document cannot be regarded either as a notice of preliminary objection to the appeal being brought, nor as a cross-appeal on the part of the respondents. Learned counsel agreed that it is not more than an advance notice of what might be urged as part of the reply that would be given in the course of argument.

We accordingly invited learned counsel for the appellants to argue his grounds of appeal. Mr. Anah asked and was granted leave to argue grounds 1 and 2 together first. He submitted that the judgment obtained by the defendants in Suit No. 0/106/69 delivered by Egbuna, J., on May 26, 1973, was a nullity and that the learned trial Judge ought to have refused to assume jurisdiction over the hearing of the claim. His reason is that the claim originated in a so-called “Biafra High Court” and the consequential order that the plaintiffs were given 120 days within which to file their Statement of Claim and plan and serve the same on the defendants who were also given 150 days after such service to file their Statement of Defence and plan, was that of the self-same court.

Learned counsel, therefore, submitted that the trial Judge was wrong to have taken-over the proceedings which originated in a non-existent court because it was not one of the 12 State High Courts existing within the Federation of Nigeria since May 27, 1967. He referred to the decision of this court in Uttah v. Independence Brewery Ltd. (1974) 2 S.C. 7 in which it was held that the proceedings before Aniagolu, J., at the High Court, Umuahia, delivered on April 17, 1972, consequence of an action that had been commenced in the so-called High Court of “Biafra” on December 28, 1967, were a nullity, since they were “based on the report of a reference appointed by Aniagolu, J., in his capacity as a Judge of a non-existent High Court of the so-called Biafra, and that no appeal could lie from such entity to the Supreme Court of Nigeria”.

Learned counsel also referred to our decision in Okwuosa v. Okwuosa (1974) 2 S.C. 13, at p. 19 of which we observed as follows:   “We also find ourselves in agreement with the submission of learned counsel for the appellant that the Judicial Acts Validation Edict 1970, to the extent to which it declared in Section 3 that the decisions of the High Court of ‘Biafra’ were to be held as valid, is not valid and has been declared invalid by the Supreme Court in some recent decisions, of which it is sufficient to refer to Ogbuagu & Ifegbu & Ors. v. Ota Ukaefi (1971) 1 E.C.S.L.R. 184.”   In the Okwuosa Case, we also held that “the proceedings of the Onitsha High Court in the East-Central State of Nigeria in Suit No. O/4D/1967 delivered in July, 1971 were a nullity, and that the judgment of Egbuna, J., must be set aside, including the order as to costs”. We were asked by the learned counsel for the appellants to hold that his ground 3 was sufficiently covered by our observations regarding costs in the Okwuosa Case.   Mr. Ajayi, learned counsel for the respondents, in his reply, referred to the paper which he had filed and which we have quoted above, and submitted that Okwuosa v. Okwuosa and other related cases should be regarded as having been decided by us per incuriam in that the court’s attention was not drawn in those cases to “The Federal Military Government (Supremacy and Enforcement of Powers) Decree No. 28 of 1970” under which courts of law in the Federation were forbidden to declare Decrees and Edicts invalid. It was his submission that this 1970 Decree renders invalid any decision of the Supreme Court declaring the East-Central State Judicial Acts (Validation) Edict No. 3 of 1970 invalid.

In support of his contention, learned counsel cited Adebiyi Adejumo v. H.E. Col. Mobolaji Johnson, Military Governor of Lagos State (1972) 1 All NLR (Pt. I) 159, in which it was held that once an instrument is stated to have been made under a Decree or an Edict so that the validity of the instrument cannot be attacked except on the sole ground that it was made under an Edict which is inconsistent with a Decree. Learned counsel also cited Adenrele Adejumo v. Col. Mobolaji Johnson (1974) 5 S.C. 101, in which the earlier case was referred to in support of the view that Decree No. 28 of 1970 precludes the courts from testing or inquiring as to whether an Edict conflicts with or is inconsistent with the Constitution.

It is sufficient for us to observe that both these cases must surely be subject to the over-riding consideration of State Policy as declared by the Supreme Military Council having the force of law in Nigeria.   The series of decisions, beginning with that in Ifegbu & Ors. v. Ukaefi & Ors. Suit No. SC/225/71, up to and subsequent to Okwuosa v. Okwuosa, far from having been arrived at by this court per incuriam, have in fact been based upon the premise that judicial notice should be taken of the Supreme Military Council declaration and ruling to the effect that, so far as the judges and the courts that operated within the rebel enclave are concerned, they should be regarded as on leave without pay for the entire duration of the civil war, and that this period of rebellion should not count for seniority and pension purposes. To the extent, therefore, that Edict No. 3 of 1970 purports to validate certain judgments given during that period, it must be deemed to be contrary to the Supreme Military Council declaration.

There is, of course, the further fact that the Supreme Court cannot entertain an appeal from the so-called “High Court of Biafra” because it is not one of the 12 State High Courts in existence in the country since May 27, 1967, from which alone appeals lie to the Supreme Court of Nigeria.   Learned counsel’s second important submission is that, whatever the origin of the case itself, the judgment now being appealed against was decided by the High Court of the East-Central State and that the Amended Statement of Claim was filed before this court.

He maintained that this fact alone should give the court jurisdiction. He further contended that the matter should be looked at from the point of view of a case which has been commenced on the basis of non-compliance with the relevant Rules of Court, and that a court could permit an amendment to the pleadings so as to put right an irregularity which, he contended, was the case with the Amended Statement of Claim in this case. We say no more than that this is a false analogy and that the objection to the take-over of a case originating in a “Biafran High Court” by a properly constituted High Court of the East-Central State goes beyond mere irregularity; it is rooted in the illegality of the court, and this cannot be cured by mere procedural amendments and corrections. It goes to the fundamental issue of jurisdiction.  

In the result, we are of the view that the proceedings in the High Court of Onitsha and the judgment of Egbuna, J., delivered therein in Suit No. 0/106/69 on May 26, 1975, are a nullity in that the Onitsha High Court purportedly took-over and completed the proceedings in a case commenced in a court not known to the Constitution of Nigeria, to wit, the High Court of Biafra.

Accordingly, the judgment of Egbuna, J., is hereby set aside, including the order as to costs. The appeal succeeds and it is allowed. In the particular circumstances of this appeal, however, we make no order as to costs.

Other Citation: (1975) LCN/2122(SC)