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.
(4) Perpetual injunction restraining the 2nd defendant from appointing and/or swearing-in the 1st defendant as a Judge of the High Court of Imo State.
Going by the counter-affidavit of the 1st respondent the deposition of which remains unchallenged the plaintiffs/appellants/applicants filed their statement of claim. Upon the service of the processes of the plaintiffs/appellants/applicants on the defendants/respondents, the latter filed a preliminary objection challenging, inter alia, the locus standi of the applicants to bring the suit. Arguments of counsel were taken by the learned trial Judge and in a considered ruling delivered on the 15th of March 2004, the learned trial Judge upheld the objection thereby declaring that the applicants had no locus standi to bring the suit and consequently struck same out. Being dissatisfied with the ruling of 15th March 2004, the plaintiffs/applicants have since appealed to this court. The appeal is yet to be heard in this court.
What does “locus standi” denote? In law, locus standi is the legal capacity with which a plaintiff is endowed to institute proceedings in a court of law. It is used interchangeably with terms like “standing” or “title to sue.” It is the right of a party to appear and be heard on the question before any court or tribunal. Indeed, it is an aspect of justice ability the fundamental aspect of which focuses on the party seeking to get his complaint before the court and not on issues which the plaintiff wishes to have adjudicated upon. And where a party’s standing to institute an action is in issue in a case, the question obviously, is whether that person whose standing is in issue is a proper party to request an adjudication of a particular issue and not whether the issue itself is justiceable. See Oloriode & Ors. v. Oyebi & Ors. (1984) 1 SCNLR 390; (1984) 5 SC 1. Where a party lacks locus standi to sue, his case must be struck out as being incompetent so said the Supreme Court in (1) Oloriode & Ors. supra and (2) Owudunni v. Registered Trustees of C.C.C. (2000) 10 NWLR (Pt.675) 315; (2000) 6 SC (Pt.3) 60. What we now have before us for adjudication is an application on notice praying for an order of interlocutory injunction. On the hearing of an application for an interlocutory injunction, the first thing that the applicant has to show is that there is a serious question to be tried. In other words, there must be a substantive suit in place. See Oyeyemi v. lrewole Local Govt. Ikire (1993) 1 NWLR (Pt.270) 462. I have said, supra. that the substantive suit brought by the plaintiffs/appellants/applicants before that court has been struck-out by the court below on the ground of lack of locus standi. The success of the objection based on locus standi is a challenge to the jurisdiction of the court below to entertain the suit. It is a well established principle of law that a court has no power to make an order in respect of a case in which its jurisdiction to try the case has been challenged. If the court holds that it has no jurisdiction, as it has been held in the instant case, the substratum of the case is knocked off and as said, it must be struck out again. See Okoye & Ors. V.N. C. & F. CO. Ltd & Ors. (1991) 6 NWLR (Pt.199) 501.
An order of injunction does not exist in vaccum. It must always be related to an existing substantive case. A judgment of a court of competent jurisdiction must remain in force until it is set aside by an appellate court. It must be obeyed. Such an order must not be ignored.
Going by what I have being saying, an applicant whose substantive suit has been struck out on the ground of locus standi is not allowed in law, to take any steps in realisation of the reliefs sought in that substantive suit until he has cleared the issue of legal capacity to sue. The present application before us is in pursuit of the reliefs already struck-out. Any process, including an application for an order of interlocutory injunction, brought pursuant to such reliefs in the absence of obtaining the order of the appellate court to reverse the order of striking out the substantive suit is an abuse of court process. It tantamounts to use of its power malafide. See Okorodudu v. Okoromadu (1977) 3 S.C. 21. The Supreme Court discussing the concept “Abuse of court” reasoned in Vaswani Trading Co. v. Savalakh & Co. (1972) 1 All NLR (Pt. 2) 483 at page 488 thus:
“Speaking of the attitude of the courts to an abuse of process, Lord Blackburn said in The Metropolitan Bank Ltd. etc. v. Pooley (1885) 10 APPC as. 210 at page 220.
But from early time, (I rather think, though I have not looked at it enough to say, from the earliest times) the court had inherently in its power the right to see that its process was not abused by a proceeding without reasonable grounds, so as to be vexatious and harassing – the court had the right to protect itself against such an abuse (see also Logan v. The Bank of Scotland No.2 (1906) 1 K.B. 141.”
The totality of all I have being saying is that, for now, the jurisdiction of the court below to entertain the suit has been successfully challenged. Jurisdiction is a vital point which gives life or impetus to a suit. In fact, the question whether a court has jurisdiction to entertain a suit or not touches on its competence. Once it has been successfully raised, any court, including an appellate court, particularly on the issue of locus standi must not do anything on the actualisation of the reliefs sought in the court below which have been struck out until the order of striking out is properly reversed in law.
It is for all of the above that I say without any fear or equivocation that the application dated 1st of September, 2004 but filed on the 3rd of September, 2004 is grossly an abuse of court process. It has no leg to stand in law. It must be dismissed and I accordingly dismiss it with costs assessed and awarded in favour of the 1st respondent at N2,500.00 and the 2nd and 3rd respondents at N2,500.00 jointly.
Other Citations: (2004)LCN/1642(CA)