Ndionyenma H. Nwankwo & Anor V. Mrs Ann C. Ononoeze-madu & Ors (2004)

LawGlobal-Hub Lead Judgment Report

ADEREMI, J.C.A.

The application dated 3/9/2004 under consideration here initially carried two prayers viz:

“(1) an order setting aside the appointment and sweating-in of the 1st respondent as a High Court Judge of the Imo State judiciary on the 3rd of August, 2004.

(2) an order of interlocutory injunction restraining the 1st respondent from exercising any powers and/or functions whether official or social, of a High Court Judge of the Imo State judiciary, pending the determination of the motion on notice filed by the appellants on May 26th, 2004.

The application is supported by a 12 paragraph affidavit and a further affidavit of six paragraphs. When this application came before us on the 23rd of September, 2004 Mr. Nworka the 2nd appellant/applicant, a legal practitioner, who appeared in person, before moving the said application, sought and obtained the leave of this court to withdraw the second leg of the prayers as set out supra. In moving the application as it relates to the first leg of the prayers, the learned counsel relied on the affidavit in support and the 6-paragraph filed on 23/9/04; he posed the question as to whether having regard to the pendency of a motion .seeking to restrain the appointment, swearing-in of the 1st respondent; whether therefore, the appointment and swearing-in of the 1st respondent is legal? It was submitting that the act of 1st respondent in presenting herself (1st respondent) to be sworn-in and the appointment and swearing-in during the pendency of the suit and the motion was illegal; he relied on (1) Praying Band of C & S v. Udokwu (1991) 3 NWLR (Pt. 182) 716 and (2) First African Trust Bank v. Ezegbu (1993) 6 NWLR (Pt.297) 1; 6 SC. (Pt.1) 122. The act of the respondents’ he further submitted, is reprehensible and they should not be allowed to get away with it.

No party, he further argued, has the right to determine whether an application should be granted.

Mr. Dike, learned counsel for the 1st respondent, in urging this court to dismiss the application he further submitted that same is in competent; the notice of appeal having not accompanied the application. He referred to the printed evidence of both sides and submitted that both parties are ad idem that the substantive suit in this case has been struck out by the court below. The present application is therefore an abuse of court process, he further argued.

The appeal against the order of striking out of the substantive suit was founded on the issue of locus standi; the present application has no bearing on the appeal. The order prayed for through the present application was never before the court below. He urged that the application be dismissed.

Mrs. Chikeka, Director of Civil Litigation, Imo State, learned counsel for the 2nd and 3rd respondents while associating herself with the submission, of Mr. Dike of counsel for the 1st respondent, relied on the 13 paragraph counter-affidavit and submitted that there is no res to preserve in this case since the substantive suit has been struck-out. It was her further submission that there has not been any appeal before this court in relation to prayer I of the application. In conclusion, she urged that the application be dismissed.

On point of law only Mr. Nworka urged the court, in law, not to determine at interlocutory stage, the substantive matter.

To appreciate the salient and fundamental issue involved in this application, I felt compelled to set out the reliefs claimed by the applicants in the court below which constitute the substratum of the entire matter; they are as follows:

“(1) Declaration that appointing 1st defendant as a Judge of the High Court of Imo State will infringe on the constitutionally guaranteed fundamental rights of the plaintiffs to practice (sic) their profession in Imo State of Nigeria.

(2) Declaration that the 1st defendant is not a fit and proper person to be appointed as a Judge of the High Court of Imo State by the 2nd defendant.

(3) Perpetual injunction restraining the 1st defendant from presenting herself to the 2nd defendant for appointment G and/or swearing-in as a Judge of the High Court of Imo State.