Lawrence Kanu & Anor V. Lawrence Obeta & Ors (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

FREDERICK O. OHO, J.C.A. (Delivering The Leading Judgment)

There are a number issues slated for determination as far as this Appeal is concerned. Chief of these is whether it is proper for the trial Court not to have ordered pleadings after making findings of fact that there were irreconcilable conflicts, contentious and disputed facts which cannot be resolved by affidavit evidence in an action commenced by Originating Summons.

There is also the issue of the trial Court not ruling one way or the other in respect of a pending motion for joinder before delivery of its judgment in the substantive matter. In addition to these, what were the available legal options open to this Court when one of the sides to this action was said to have conducted an election pendent lite in breach of the Court’s Injunctive Orders.

The Appellants in this case were the Claimants at the trial Court, and they commenced the suit on the 15th day of April, 2010 at the High Court of Abia State of Nigeria, Osisioma Judicial Division, vide an Originating Summons dated 1st day of April, 2010 in Suit No. HOS/23/2010, against the Respondents who were the Defendants at the trial Court. By this Originating Summons the Appellants asked the Lower Court for the determination of the following questions:

(1) Whether the Defendants can hold office as Executive Committee members of the Independent Petroleum Marketers Association of Nigeria (IPMAN), Aba Depot beyond their certain tenure of three (3) years from 8/3/2007-7/3/2010 without holding fresh elections as laid down in article xi (viii) and (ix) of the Constitution of the Petroleum Marketers Association of Nigeria (IPMAN) of 14th June, 1997.

(2) Whether the Defendants can elongate or extend their tenure of office as Executive Committee members of the Independent Petroleum Marketers Association of Nigeria (IPMAN) Aba Depot beyond their certain tenure of three (3) years from 8/3/2007 to 7/3/2010 without recourse to fresh elections in accordance with article ix (viii) and (ix) of the Constitution of the Independent Petroleum Marketers Association of Nigeria (IPMAN) of 14th June, 1997.

Subject to the outcome of the determination or construction of the above provisions of the IPMAN Constitution, the Appellants sought for the following reliefs:

1. A Declaration of the Honourable Court that the tenure of office of the Defendants as the executive members of the Independent Petroleum Marketers Association of Nigeria (IPMAN), Aba Depot for a certain terms of three (3) years commencing from the date of their election as such on 8th March, 2007 expired on 7th March, 2010 in accordance with Article XI (VIII) and (IX) of the Constitution of the Independent Petroleum Markets Association of Nigeria (IPMAN) of 14th June, 1997.
2. A Declaration of the Honourable Court that the Defendants as the executive members of the Independent Petroleum Marketers Association of Nigeria (IPMAN), Aba Depot cannot lawfully elongate or extend their certain tenure of office of three (3) years from 8/3/2007 -7/3/2010 without recourse of fresh elections in accordance with Article XI (VIII) and (IX) of the Constitution of the Independent Petroleum Marketers Association of Nigeria (IPMAN) of 14th June, 1997.
3. An Order of injunction restraining the Defendants from unlawfully continuing to carry out the functions and duties as executive committee members of IPMAN, Aba Depot aforesaid and/or continuing to put out themselves as such executive members of IPMAN, Aba Depot aforesaid their tenure of office having expired by the provisions of IPMAN Constitution aforesaid.

On the 15th day of April, 2010, the Appellants also filed a Motion on Notice for an Interim Injunction in which they sought to restrain the Respondents from continuing to act in the Executive Committee of the IPMAN, Aba Depot and holding themselves out as such pending the hearing and determination of the Originating summons. Upon the receipt of the Appellants’ Originating Summons and motion on Notice, the Respondents filed three processes as follows:

1. Notice of Preliminary Objection dated the 26th day of April, 2010 together with a written address in support of Objection.
2. Counter Affidavit in opposition of the grant of Originating Summons filed on the 26th day of April, 2010.
3. Counter Affidavit to Motion of Notice for Interim Injuction.

On the 26th day of April, 2010, the learned Judge of the Lower Court, faced with the two application, one asking for an Injunction and the other seeking to strike out the entire action on grounds of Jurisdiction, decided to take the one of injunction first, granted it and effectively kept the Respondents out of office as Executive members of IPMAN, and in their stead proceeded to appoint an Interim Management Committee, of a few persons for this purpose, pending the hearing and determination of the Notice of preliminary Objection filed in the action.

Aggrieved by the Orders of the Judge of the Lower Court, granting an interim injunction against them without first hearing the Notice of Preliminary Objection challenging the Court’s jurisdiction to entertain the action the Respondents, in reaction filed a Notice of Appeal and a motion for Stay of Execution of the Orders of the Lower Court.

While the Notice of Objection was yet to be taken and as well as the motion for Stay of Execution, the Judge of the Lower Court, next proceeded to grant yet another Exparte Order against the Respondents, who on the strength of this, wrote a petition against AKOMAS, J to the NJC. As a result of this petition, AKOMAS, J recused himself from further hearing the matter and consequently did not go ahead to deliver judgment slated for the 15th day of July, 2010.

Rather he transferred the matter to the Hon. Chief Judge of Abia State for re-assignment to another Judge. On the strength of this position, the Hon. Chief Judge transferred the matter to Aba Judicial Division for hearing and determination and was subsequently assigned to High Court No. 3 Aba presided over by OTISI, J (as he then was).

While the matter remained in Court, the Respondents of their volition vacated their various offices and on the 6th day of October, 2010 the Chairman IPMAN, Eastern Zone, despite the subsisting Court Order, held a fresh election and a new set of Executives, fifteen (15) in all, were ushered into Office. The Appellants, armed with the impression that this had violated the interim Order of Court which had not been vacated, filed a motion of Notice on the 25th day of November, 2010 seeking an Order of Court to join the fifteen newly elected Executive members as parties to the suit and also a mandatory Order of injunction seeking the setting aside of the election held in defiance of the Orders of Court

As the matter raged on between the parties another faction got onto the scene. They referred to themselves as “Unnamed Claimants” who were in fact said to be the actual Claimants in the substantive action but had merely nominated the named Claimants to represent them in the case. These were the persons sought to be joined as they were ostensibly the same set of persons newly elected into office as Executive Officers of the branch. They resisted the move to be joined as second set of Defendants in the substantive suit before the trial Court on the ground that they cannot be joined in a suit as Defendants in which they are actual Claimants. In addition, both the “Unnamed Claimants” and parties sought to be joined and defendants as Respondents herein raised the issue of jurisdiction of the Court to continue to the entertain the case on the ground that the dispute between the parties has ceased to exist in view of the fact that the Defendants/Respondents had vacated their offices and fresh elections held.