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‘Supreme Court Won’t Endorse Anyone Flouting Order Of Court Below…’

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     In The Supreme Court of Nigeria

Holden at Abuja on Monday, The 22nd Day of October, 2018

Before Their Lordships

                    Walter Samuel Nkanu Onnoghen

                      Musa Dattijo Muhammad

                      Kumai Bayang Aka’ahs

                      John Inyang Okoro

                      Chima Centus Nweze

        Justices, Supreme Court     SC.764/ 2018

                                Between

I. Ibrahim Umar     2. David Ndah   3. Prince Morris  4. Kudem Bale

5. Otokim Jack 6. Omuboye Briggs 7. Abelemi Saturday

8. Abelemi Saturday  9. Johnson Eke 10. Sunday Clinton

11. Amadi Stephen  12. Atiteh Ikechi   13. Orji Barida

14. Horace Obed 15. Wonah Godwin A. 16. Sunday Ellah

17 Jonathan Nkpome 18. Fabian Theodore Dagogo

19. Nwoke Okwupiri 20. John Jaja Tunotamuno

21. Zorma Baridura 22. Menemu Friday Teddy

23. Ndukwu Zereuwa

………….Appellants

                And

All Progressive Congress…….Respondent

Judgement Delivered by Chima Centus Nweze, JSC

And

            The State—————–Respondent

Judgment Delivered By Paul Adamu Galumje, JSC

                        

FACTS

As per their Originating Summons in Suit No BHC 78 2018, which was filed at the High Court of Rivers State, Bori Judicial Division, the appellants in this appeal [as plaintiffs] formulated three questions for the court’s determination. They, then, entreated the said court for these reliefs:

(a) A declaration that the Claimants are entitled to participate in the APC ward Congress having paid the requisite nomination fees.

(b). A declaration that the exclusion of the Claimants from participating in the Ward Congress is unconstitutional, null and void.

(c) A Declaration that the purported Ward Congress held by APC on May 5 2018 is null and no effect whatsoever.

(d) A Perpetual Order restraining APC from conducting any LGA Congress or further congress in Rivers State based on the Ward Congress election purportedly conducted on May 5, 2018.

(e) A Perpetual order restraining APC from recognizing or accepting any Result of Ward election whatever arising from the purported Ward Congress of May 5, 2818.

On May 8, 2018, they besieged the court for injunctive reliefs: an application which the respondent’s counsel, by his affidavit of May 10, 2018, averred that he was not opposing. Upon transfer of the matter to the Port Harcourt Division of the High Court of Rivers State the presiding Judge thereat, C. Nwogu, J, heard the application. C. A. Chiene, for the respondents, did not oppose the application which was adjourned for Ruling on Friday, May 11, 2018.

On the said day, May 11, 2018, hoodlums invaded the said court. They destroyed items of property and laid siege thereto for several hours.  All the same, the court was still able to deliver its Ruling on that day. It issued an interlocutory injunctive order restraining the respondents from conducting the party’s congresses.

0n the following day, May 12, 2018, in a most contumacious manner, the respondent, defiantly, purported to conduct another congress. As if that was not enough, on May 19, 2018; May 20, 2018 and May 21, 2018, respectively, the said respondent, notwithstanding the pendency of that injunctive order, went ahead to conduct Ward, Local Government and State congresses.

These defiant acts prompted the trial courts Order of Mandatory injunction of May 30, 2018. The said order cancelled the said Congresses of May 12, 2018; May 19, 2018; May 20, 2018 and May 21, 2018. 

Although still recalcitrant to the subsisting orders of the trial courts, namely orders 0f May 11, 2018 and May 30, 2018, the respondent, in a most impudent manner, beseeched the Court of Appeal, Port Harcourt Division, with an entreaty to favour it with an order of stay of proceedings and stay of execution. More specifically, in the application filed on May 25, 2018, the respondent herein [applicant at the lower court] moved the court for:

An Order of this honourable Court staying the execution or further execution of the order of injunction contained in the Ruling decision of the Rivers State High Court, Port Harcourt Judicial Division, delivered on the 11th May, 2018 by C. Nwogu J in Suit No. BHC 78 2018 between Ibrahim Umar and Ors v All Progress Congress pending the hearing and determination of the appellant/applicant (sic) appeal against the Ruling of the lower court of 11th May, 2018 in this Honorable Court;

An Order staying all further proceedings of the Rivers State High Court, Port Harcourt Judicial Division, coram C. Nwogu J., in Suit No. BHC 78 2018 between [Ibrahim Umar and ors vs All Progressives Congress pending the hearing and determination of the appellant applicant’s appeal against the Ruling of the lower court delivered on 11 May, 2018 [pages 339 -340 of the record.

The lower court favoured the respondent [applicant before it] with an order staying the execution of the ‘’order of injunction made by the High Court of Rivers State in the Ruling delivered per Nwogu J. on Friday 11th May, 2018 in Suit No. BHC 78/2018’’, [page 591 of the record]. The court, however, did ‘’not find substantial reasons to grant the stay of proceedings sought by the appellants’’ [page 591 of the record].

Dissatisfied with the above Ruling of the lower court, the respondents before that court, [now appellants in this appeal] approached this court to determine the three issues concreted on page 5 of the appellants’ brief.

ISSUE FOR DETERMINATION

However, I take the view that issue one is determinative of this appeal. It was framed thus:

Whether by virtue of the doctrine of stare decision, the Court of Appeal is not bound to follow the decisions of the Supreme Court in Military Governor of Lagos state v 0jukwu (1986) 1. NWLR (pt 18) 621 and Odogwu v Odogwu (1992) 2 NWLR (pt 225) 539 on the effect of disobedience of court Order.

ARGUMENT

On October 17, when this appeal came up for hearing, H. A. Bello, counsel for the appellants, adopted the appellant’s brief filed on September 6, 2018. On this issue, he cited Ardo v Nyako [2014] 10 NWLR (pt.7416) 591, 626. He explained that, by Virtue of this doctrine, the decisions of this court are binding on the lower court and, as such, that court is duty bound to follow them, Dalhatu v Turaki (2008) 15 NWLR (pt 843) 310.

He maintained that, while the respondent was in grave disobedience of two Orders of the trial court, it approached the lower court for the discretionary orders of stay of proceedings and stay of execution, citing Military Governor of Lagos State v Ojukwu (supra) and Odogwu v Odogwu (supra). According to him, the lower court, merely, mentioned these cases and proceeded to favour the respondent with an order of stay of execution. In doing so, the court did not consider itself bound to follow the said decisions of this court.

He urged the court to hold that the lower court was under a duty to follow the aforesaid decisions of this court. In effect, its failure to do so amounted to judicial rascality. He prayed the court to allow the appeal; set aside the said Ruling of the lower court and to dismiss Appeal No CA/PH/198/2018

JUDGEMENT

My Lords, the submissions of the learned Senior Advocate of Nigeria for the respondent are, superficially, attractive. However, these submissions are not only, tendentious, but are, in actual fact, sophistical. Certain clear sophistic trends are discernible in the said submissions of senior counsel: submissions, largely, characterized by their irreverence and the profanation of the inveterate doctrine of stare decisis, a doctrine of ancient, albeit, illustrious jurisprudential pedigree, Abacha and Ors v Fawehinmi (2OO2) 6 NWLR (pt. 660) 228, 317; Emerah and Sons Ltd v Attorney-General Plateau State and Ors (1990) 4 NWLR (pt.147) 788; Global Trans Oceanic 5.A. v Free Ent. (Nig) Ltd (2011) 5 NWLR (pt 706) 426, 441; Osakwe v Federal college of Education Asaba (2010)10 NWLR (pt.1201) 1, 35-36. His submissions at paragraphs 4.3-4.21, pages 7 -12 of the respondent’s brief of argument, exemplify these trends.

With respect, learned senior counsel’s feeble attempt to defend the lower court’s inelegant effort to distinguish the cases of Military Governor of Lagos State v Ojukwu (supra) and Odogwu v Odogwu (supra) from the appeal before it flies in the face of the vigour and cogency of these authorities to the proceedings before that court.

Indeed nothing could be a more sacrilegious judicial exercise  of discretion journey than the lower court’s ill-advised embarkation on its ill-fated journey of self-immolation or what the Japanese called hara-kiri, that is suicide, all in attempt to circumvent the authority of this court, Dalhatu v Turaki (2003) 15 NWLR (pt 843) 310, 350; Osakwe v Federal College of education , Asaba (2010) 10 NWLR (pt.1201) 1, 35-36; Atolagbe and Anor v Awuni and Ors (1997) 8 NWLR (pt.522) 536, 567.

From the fact of this appeal it is no doubt that while the respondent was in grave disobedience of two Orders of the trial court, it approached the lower court for the discretionary orders of stay of proceedings and stay of execution. Nothing could be more impetuous than that! The respondent’s approach reminds me of the insightful observation of Eso JSC in Military Gov of Lagos State and Ors v Ojukwu and Ors (1986) LPELR 3186 – (SC). 

According to His Lordship: ‘’I think it is a very serious matter for anyone to flout a positive order of a court and proceed to taunt the Court further by seeking a remedy in a higher court while still in contempt of the lower court …’’  [Italics supplied for emphasis]

Now, as shown above, on May 11, 2018 notwithstanding the invasion of the court by hoodlums, an invasion that was characterised by destruction of property, the court was still able to deliver its ruling that day. It issued an interlocutory injunctive order restraining the respondent from conducting its congresses.

On the following day, May 12, 2018, in a most contumacious manner, it [the respondent], defiantly, purported to conduct another congress. As if that was not enough, on May 19, 2018; May 20, 2018 and May 21, 2018, respectively, it [the said respondent], notwithstanding the pendency of that injunctive order, went ahead to conduct Ward, Local Government and State Congresses.

These defiant acts prompted the trial court’s Order of Mandatory injunction of May 30, 2018. The said order cancelled the said Congresses of May 12, 2018; May 19, 2018; May 20, 2018 and May 21, 2018.

Although still recalcitrant to the subsisting orders of the trial courts, namely, orders of May 11, 2018 and May 30, 2018, the respondent, in a most impudent manner beseeched the Court of Appeal, Port Harcourt Division with an entreaty to favour it with an order of stay of proceedings and stay of execution. The lower court, as shown above, favoured the respondent (applicant before it) with an order staying the execution of the ‘’order of injunction made by the High Court, Rivers State in the ruling delivered per Nwogu J on Friday 11th May, 2018 in Suit No. BHC/78/2018,” [page 591 of the record]. ‘

The simple truth, therefore, is that, when the respondent applied for an Order of stay of execution before the lower court, it was in gross-disobedience of the injunctive orders of the trial court. From all indications, notwithstanding this unfortunate development, the lower court still found it legitimate to favour it [the respondent] with the said Order for Stay. This was wrong.

Regrettably, the lower court condoned the above contumacious, egregious and censorious approach of the respondent herein. Well, this court has a duty to resist this attempt to achieve forensic victory through jiggery pokery. True to its constitutional mandate, this court cannot lend its weight to such an ungainly approach! In all, therefore, I have a duty to allow this appeal. Accordingly, I hereby enter an order setting aside the Ruling of the lower court delivered on June 21, 2018.

My Lords, kindly bear with me. Before concluding this judgement, I want to express my reservations about the advocacy style of the respondent’s counsel in this appeal. Counsel, even if they are partisan politicians, should learn to draw a line between the modus operandi of politicians and the attitude of courts of law to issues verging on trickery. If politicians gain electoral victory by false pretenses, a court of law, nay more, the court of equity, must be spared the contempt of being employed as an instrument of advancing electoral fraud!

Appeal allowed. The Ruling of the lower court dated June 21, 2018, is hereby set aside. That shall be the judgement of this court.

Chima  Nweze, JSC

Representations:

H.A. Bello, Esq., KSM, with him Amina T. Marafa, Esq – for Appellants

Hakeem Afolabi, SAN, with him, B. A. Oyum and Sunday Oluwole-for Respondent.

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