3PLR – MANGUT MASHINGIL & ORS V. CHIEF JETHRO M. AKUN & ORS

POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS

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MANGUT MASHINGIL & ORS

V.

CHIEF JETHRO M. AKUN & ORS

 

IN THE COURT OF APPEAL OF NIGERIA

ON FRIDAY, THE 10TH DAY OF MAY, 2013

CA/J/303/2010

3PLR/2013/106

 

OTHER CITATIONS

(2013) LPELR-21922(CA)

 

BEFORE THEIR LORDSHIPS

OYEBISI FOLAYEMI OMOLEYE, JCA

JUMMAI HANNATU SANKEY, JCA

PETER OLABISI IGE, JCA

 

BETWEEN

1. MANGUT MASHINGIL
2. JOHN MAGIT
3. JOHN AKUN
4. MARK AJORO

(Suing as representative for and on behalf of Saf MA’LAN Ruling house of Mandung Land) Appellant(s)

AND

1. CHIEF JETHRO M. AKUN
2. LAZARUS MALAN
3. ENGR. MAHAN AJANG

(Being sued in representative capacity for and on behalf of certain people of Mandung Land)

4. THE DISTRICT HEAD OF DAFFO
5. ABWAI MAKUT (Saf Ma Nyerong, Mandung)
6. SAF RON KULERE (DA LAZARUS AGAI)
7. BOKKOS TRADITIONAL COUNCIL
8. BOKKOS LOCAL GOVERNMENT COUNCIL
9. COMMISSIONER FOR LOCAL GOVERNMENT AND CHIEFTANCY AFFAIRS
10. MINISTRY FOR LOCAL GOVERNMENT AND CHIEFTANCY AFFAIRS. – Respondent(s)

 

REPRESENTATION

MISS B.Y. OLANIYAN – For Appellant

AND

1. D. KUMBAK ESQ., FOR 1ST, 2ND, 3RD AND 5TH RESPONDENTS
2. D. FWOMYON ESQ., (DDPP) WITH G. E. DASHE ESQ., (ASST. DIRECTOR)
   FOR 4TH, 6TH, 7TH, 8TH, 9TH AND 10TH RESPONDENTS MINISTRY OF JUSTICE, JOS, PLATEAU STATE – For Respondent

 

ORIGINATING STATE

Plateau State: High Court of Justice

 

MAIN ISSUES

CUSTOMARY LAW – CHIEFTAINCY:- A claim for declaration against the conduct of another election or selection process for a new Village Head during the lifetime of the occupant of the office How treated

REAL ESTATE/LAND LAW – DOCTRINE OF LIS PENDES:- Historical application to litigation over land matters and purported disposition of land or real property by any of the parties to the litigation – Whether doctrine prevents the effective transfer of rights in any property which is the subject matter of an action pending in court during the pendency in court of the action – Whether a purchaser of the subject matter is deemed to buy subject to the right of the winner of the action over which the subject matter is in contest – Whether such a sale is void ab-initio and no title can be passed to the purchaser

REAL ESTATE/LAND LAW – DOCTRINE OF LIS PENDES – CAVEAT EMPTOR:- Whether the doctrine is not the same as caveat emptor in strict legal content – Loose or vague affinity between both concepts in relation to a person buying or purchasing a property in a market overt

PUBLIC LAW AND JURISPRUDENCE – CASE LAW – JUDICIAL PRECEDENT:- Rule that cases are decided on their peculiar facts and in the light of applicable law – Implication – Whether every case is an authority for the facts which it decides

PUBLIC LAW AND JURISPRUDENCE – CASE LAW – JUDICIAL PRECEDENT:- Rule that under the doctrine of judicial precedent known as stare decisis the decision of the Supreme Court as the apex court in the land on any given matter binds other courts – Constitutional foundation – Section 287(1) OF THE Constitution of the Federal Republic of Nigeria 1999 – Whether it is constitutionally mandatory for all courts to follow and apply Supreme Court decision standing on all fours with the facts and law emanating in any case before a court below the Supreme Court – Whether the doctrine of judicial precedent is mandatory and does not involve an exercise of judicial discretion at all

PRACTICE AND PROCEDURE – ISSUANCE OF WRIT:- Purpose – Whether the issuance of a writ authenticates it as emanating from the Registry of the court – Whether unless and until a writ is issued it will not acquire any validity that can command the appearance of a defendant in court – Duty of Plaintiff to apply for a writ of summons in accordance with the Rules of court and pay the prescribed fee – Effect of failure thereto

PRACTICE AND PROCEDURE – ACTION – LIS PENDENS:-  Applicability – Whether the doctrine is only applicable to parties to an action or suit when they have been properly served with all necessary court processes in the action –

PRACTICE AND PROCEDURE – ACTION – LIS PENDENS:- Where a third party purchases the subject matter of a pending action whether real properties or other types of properties or share or stocks – Whether the third party is precluded from claiming that he is a purchaser for value without notice that the property was in litigation or a subject matter of litigation when he bought the property – Justification

PRACTICE AND PROCEDURE – ACTION – LIS PENDENS: Definition, nature and scope of Lis Pendens – Historical application to litigation over land matters and purported disposition of land or real property by any of the parties to the litigation – Whether doctrine’s application is limited and does not apply to every suit

PRACTICE AND PROCEDURE – ACTION – LIS PENDENS – SCOPE OF APPLICATION:- Whether the doctrine of lis pendens does not apply to every suit – Whether restricted to suits in which the object is to recover or assert title to a specific property – Whether inapplicable to personal property being only limited to real property

PRACTICE AND PROCEDURE – ACTION – LIS PENDENS – SCOPE OF APPLICATION:- Whether the doctrine of lis pendens is now applicable to all civil mattes – Rationale – Need to dissuade parties in litigation from disposing of or destroying the res in the action so that all parties must await decision in a matter as to the right of the parties

PRACTICE AND PROCEDURE – ACTION – LIS PENDENS:-  Whether doctrine cannot curtail the rights of the parties to fair hearing – Duty to give notice of hearing to relevant parties as any failure to serve a defendant court process affecting his right will be treated as a breach of section 36 of the 1999 Constitution as amended

PRACTICE AND PROCEDURE – COURT – RULES OF COURT: Nature of as subsidiary legislations by virtue of section 18(1) of the interpretation Act and therefore have the force of law – Law that Rules of court are meant to be obeyed – Where the rules provide the mode of commencement of action – Duty of the plaintiff to scrupulously comply with the procedure laid down so as to fully endow the court the right to assume jurisdiction and adjudicate on the matter

PRACTICE AND PROCEDURE – ACTION – SERVICE OF PROCESS:- Importance –  Service of court process on some defendants or respondents  – Whether translates to service of process on a all parties to the suit

PRACTICE AND PROCEDURE – ACTION – SERVICE OF PROCESS:- A party without a legal practitioner – Legal requirement that he must be personally served the process of the court and that there cannot be service through proxy or by any other means unless a court grants or makes an order for substituted service of such process – Failure to serve a process where service of a process is required to be served – Effect – Whether renders any order made against the party not served with process null and void

PRACTICE AND PROCEDURE – ACTION – SERVICE OF PROCESS:- Essence of service of process on a Defendant in a case – Need to put him on notice so that he will be aware that there is a pending suit against him and to enable him appear to defend the action – Whether such a fundamental condition precedent that must be fulfilled to grant the court competence to entertain or adjudicate on the Plaintiff’s matter – Effect of failure thereto – Whether entitles any person affected by any order made by a court but was never served with the process can apply to have the order set aside as a nullity

PRACTICE AND PROCEDURE:– EVIDENCE – AFFIDAVIT EVIDENCE:- Whether it is not in all cases where there is no counter Affidavit that a party’s Affidavit in support would be taken as admitted or taken to have established the facts asserted therein – Where the facts deposed are self defeating and do not support the reliefs sought in the motion papers – Duty of court to evaluate properly evaluate affidavit evidence in order to ensure its veracity and or authenticity even where uncontradicted

PRACTICE AND PROCEDURE – CASE LAW – JUDICIAL PRECEDENT:- Duty fo court to observe the doctrine of judicial precedent known as stare decisis – Principle that the decision of the Supreme Court as the apex court in the land on any given matter binds other courts – Constitutional foundation – Section 287(1) OF THE Constitution of the Federal Republic of Nigeria 1999 – Relevant considerations

LATIN MAXIM: “Pendent elite nihil innovetur” – “Lis pendens”- “Stare decisisi et non quieta movere”

 

 

MAIN JUDGMENT

PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment):

This is an interlocutory appeal against the ruling of the High Court of Justice Plateau State sitting at Jos delivered on 21st day of July 2010.

 

It is apposite to state in brief the facts relevant to the determination of the issues raised for determination in this appeal. The Appellants as plaintiffs at the lower court sought for declaration and injunctive reliefs against the Respondents as Defendants as follows:-

“A.     A DECLARATION that it is against the custom and tradition of Naf Ma’Alan ruling house of Mandung Village to conduct another election or selection process for a new Galadiman Daffo and Head, Mandung during the lifetime of the occupant of the office.

1999. A DECLARATION that Sunday Akun remains the substantive Galadiman Daffo and Head Mandung Village having been so selected by consensus and in keeping with traditional due process since 6th January, 1999.
2000. A DECLARATION that the plans, preparations, invitation and arrangements to conduct another election or selection process for a Galadiman Daffo and Head, Mandung on Saturday, 16th January, 2010 or any other date for that matter as conveyed vide a letter dated 1st January, 2010 inter alia is null and void and of no effect whatsoever being a gross transgression of the tradition and custom of Naf Ma’Alan ruling house of Mandung Village.
2001. AN INJUNCTION RESTRAINING the Defendants, their agents or privies or any one acting on their behalf or instructions from conducting election or selection process and/or effecting the appointment of a new Galadiman Daffo and Head of Mandung during the life time of the occupant of the said office, namely, Sunday Akun.
2002. Cost of this action”

 

The action was filed on the 14th day of January, 2010.

 

On the same date the Appellants filed a motion on Notice for Interlocutory injunction against the Respondents in the following terms:

“MOTION ON NOTICE

BROUGH PURSUANTS TO ORDER 33 RULE 1 OF THE HIGH COURT OF PLATEAU STATE (CIVIL PROCEDURE) RULES 1988 (AS AMENDED).

TAKE NOTICE that this Honourable Court will be moved on the 10th day of February, 2010 at the hour of 9:00 O’clock in the forenoon or so soon thereafter as the Appellants/Applicants or Counsel on their behalf may heard (sic) praying this Honourable Court for the following Orders:

1. AN ORDER OF INTERLOCUTORY INJUNCTION restraining the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 8th, 9th and 10th Defendants/Respondents their agents, servants or privies or any one acting on their behalf or instruction from convening and/or conducting election or selection of a new Galadiman Daffo and Ward Head of Mandung either on Saturday, 16th day of January, 2010 or any other date for that matter pending the final determination of the substantive suit.

AND FOR SUCH FURTHER order or orders that this Honourable Court may deem fit to make in this circumstances.”

 

On 22nd day of April, 2010, the 1st Defendant/Respondent filed counter Affidavit against the plaintiffs/Appellants Application for interlocutory injunction wherein the 1st Respondent deposed that on 16th day of January, 2010 election was successfully conducted in accordance with tradition and that one ZAKARIYA MALO MAFULUL emerged as the new GALADIMAN DAFFO to succeed the late Da Akun Adawel.

 

Apparently jolted by the assertion in the said Counter Affidavit the Appellants filed a motion dated 10th day of May, 2012 on the same date seeking to set aside the alleged election of the said Zakariya Mafo Mafulul who was said to have emerged as the new Galadiman Daffo and Ward Head Mandung. For ease of reference the said Appellants application and the grounds upon which same was predicated are as follows:-

“1.     AN ORDER setting aside, reversing and/or nullifying the purported election/selection purportedly conducted on 16th January, 2010 whereupon one Zakariya Malo Mafulul was said to have emerged as the new Galadiman Daffo and Ward Head Mandung at the instance or active participation of the 1st, 2nd, 3rd and 5th Defendant/Respondents during the pendency of this suit.

2. AN ORDER declining to entertain any application from 1st, 2nd, 3rd and 5th Defendants/Respondents and/or indulgence including the hearing of their Motion on Notice dated the 30th day of April, 2010 but filed on 4th May, 2010 inter alia seeking for extension of time to file their statement of Defence out of time pending the determination of this application.”

 

The lower court heard the application filed by the Appellants on 25th day of May, 2010, and the lower court delivered a considered Ruling on 9th day of July, 2012. On issue one raised for determination as to whether the doctrine of Lis pendens did not apply to the alleged selection of a new Galadiman Daffo and Head of Mandung on 16/1/10 during the pendency of this action the learned trial Judge held:-

“This court being a court of law and Justice will not hesitate, to order or a reversal (sic) if at the end the plaintiffs succeed in their claims. The court will not shirk from its duty in giving effect to its Judgment.

In sum all I have been trying to say is that this suit or action came to life only upon the issuance of the specially endorsed writ on 18-01-10, two days after the act sought to be restrained or set aside was completed. I refer to the order of this court granting leave to the 1st-3rd applicants to sue the respondents in a representative capacity. It is clear therefore that I do not agree with the applicants that the doctrine of lis pendens is applicable to the instant application. In the result issue 1 is resolved against the applicants.”

 

On the second issue in the application before the lower court as to whether the 1st, 2nd, 3rd and 5th Respondents should be allowed any indulgence by the court on account of their purported action in the election of a new Galadima Daffo and Ward Head Mandung on 16th January, 2010 when the substantive suit and motion for interlocutory injunction were pending the trial court held:

“Having resolved issue 1 against the applicants I do not think any useful purpose will be served by a discourse on this use.

It is my humble, but firm view that no one who comes to court should be shut out of proceedings as parties are first of all constitutionally entitled to fair hearing in consonance without constitution – section 36.

This court has not adjudged the 1st set of respondents to be in contempt and cannot be heard or seen to derogate from the path of justice by refusing them any indulgence without just cause”

 

The Appellants were dissatisfied with the decision and has appealed to this court. Their notice of Appeal consisting of seven (7) grounds dated 21st day of July, 2010 was filed on the same date.

 

The Appellants filed their Brief of Argument on 30/11/2010 while the 1st set of Respondents (1st, 2nd, 3rd and 5th) and 2nd set of Respondents 4th, 6th – 10th) filed their respective Brief of Argument on 28th November, 2012 and 14th December, 2012 respectively. The appeal was argued on 12th day of February, 2013 when the parties through their learned counsel adopted their Briefs of argument.

 

In paragraphs 3:00 and 3:01 of the Appellants Briefs three issues were formulated for determination in this appeal namely:-

“1.     Whether having disregarded and discountenanced the invalid Counter-Affidavits of the two sets of Respondents (and bearing in mind the doctrine of lis pendens and authorities cited), the learned trial Judge was right in refusing to set aside the purported election of a new Galadiman Daffo and Ward Head Mandung during the pendency of the case on ground that the doctrine of lis pendens daes not apply. (Grounds 1, 6 and 7).

2. Whether the learned Judge was not in breach of the doctrine of stare decisis when he refused to follow the superior decisions of the final Court of the land such as VASWANI TRADING CO. VS SAVALAKH & CO. (1972) ALL NLR 922 AT 929 & 931; MILITARY GOVERNOR, LAGOS STATE & ORS V. CHIEF EMEKA ODUMEGWU OJUKWU (1986) ALL NLR 233 AT 244-245; ABUBAKAR V. UNIPETROL PLC (2007) * NWLR (PT. 769) 242 AT 251-252.
3. Whether the issuance of the Writ of Summons on 18-01-10 was in issue before the lower court so as to justify the question posed by the learned presiding Judge in that regard as well as his interpretation and application of Order 5, Rule 1 of the Rules of the High Court of Plateau State 1988 (as Amended) resulting in the conclusion that the action only came alive upon the issuance of the Writ on 18-01-10, two days after the act sought to be restrained or set aside had been completed thereby excusing the Respondents from being held accountable for any act. (Grounds 2, 3 and 4).”

 

The 1st, 2nd, 3rd and 5th Respondents formulated one issue for determination as followings:-

“Whether or not the 1st, 2nd, 3rd and 5th Respondents (i.e. 1st set of Respondents) were served with the Appellants writ of summons and/or motion for interlocutory injunction on or before the 15th day of January, 2010 the day the event sought to be restrained was carried out, even though this suit was filed by the Appellants on the 14th day of January 2010. If not whether it can be said that the 1st set of Respondents are in contempt of the lower court for conducting the said election of 16th January 2010 to warrant setting aside reversing and or nullifying same. (ISSUES I, II AND III OF THE Appellants’ brief of argument).”

 

On their part the 4th and 6th-10th Respondents in their Brief of Argument formulated one issue while they adopted issues 2 and 3 formulated by the Appellants. The one issue formulated by them is:-

“WHETHER THE APPELLANTS PROVED THE BREACH OF THE DOCTRINE OF LIS PENDENS AGAINST THE RESPONDENTS IN THIS MATTER.”

 

A calm reading of the processes filed by the parties at lower court and the Record of proceedings in this interlocutory appeal reveals that this appeal can be determined on the three issues framed or distilled from the seven grounds of appeal filed by the Appellants and the said issues will be dealt with in sequence.

 

ISSUE I

WHETHER HAVING DISREGARDED AND DISCOUNTENANCED THE INVALID COUNTER AFFIDAVITS OF THE TWO SETS OF RESPONDENTS (AND BEARING IN MIND THE DOCTRINE OF LIS PENDENS AND AUTHORITIES CITED), THE LEARNED TRIAL JUDGE WAS RIGHT IN REFUSING TO SET ASIDE THE PURPORTED ELECTION OF A NEW GALADIMAN DAFFO AND WARD HEAD MANDUNG DURING THE PENDENCY OF THE CASE ON GROUND THAT THE DOCTRINE OF LIS PENDENS DOES NOT APPLY (GROUNDS 1, 6 AND 7).

 

2010. A. Akubo SAN for the Appellants introduced his argument on this issue by stating that issue one raises fundamental issue of the scope and application of the doctrine of lis pendens and the corresponding power of the court to preserve the res vis-‘E0-vis the purported election/selection of a new Galadiman Daffo and Ward Head Mandung on 16th January 2010. He said there is no argument between the parties on the fact that the Appellants’ action against, the Respondents was initiated on 14th day of January, 2010 by specially endorsed writ of summons to challenge the propriety of electing selecting a new Galadiman Daffo and ward Head Mandung whether on 16/7/2010 or any other date. That there is no dispute also that the Appellants filed motion for interlocutory injunction to restrain the Respondents from electing/selecting a new Galadiman Daffo and ward Head Mandung on 16/1/2010 or any other date pending the determination of the substantive suit.

 

According to him the 4th, 6th, 7th, 8th, 9th and 10th Respondents were served with the motion on Notice for Interlocutory Injunction on 15th January, 2010. That the 1st, 2nd, 3rd and 5th Respondents were fully in the know of the pending suit and the motion on Notice for injunction as at 15/1/2012 even though according to the Senior Counsel, they dodged service of court processes. That the Respondents viz 1st, 2nd, 3rd and 5th Respondents undermined the court when the 5th Respondent in the counter Affidavit filed in opposition to the application for Interlocutory Injunction informed the court that the subject matter of the substantive suit and event sought to be restrained had taken place on 16-1-2010.

 

The learned silk said:

“Evidently, the 1st, 2nd, 3rd and 5th Respondent actively participated in that infamous event.”

 

That the first respondent was a candidate and the 3rd Respondent addressed the gathering having purportedly acted as chairman of the election/selection committee. That what the 1st set of Respondents did was the height of conspiracy and an affront to the rule of law as well as deliberate attempt to foist upon the lower court a fait accompli having regard to the pending suit and the motion on Notice for interlocutory Injunction. The learned silk informed the court that the commissioner of police plateau State had by a letter dated 15th day of January, 2010 directed that all steps or plans toward the election or selection of a new Galadiman Daffo and ward Head Mandung be suspended but that the said set of Respondents engaged in reckless self-help and disregard for constituted authorities by going ahead to do the election. This according to the learned silk constrained the Appellants to file the motion seeking to invalidate and or reverse what the Appellants described as preemptive and prejudicial action of the respondents. The Appellants, he said, demonstrably shown that the 4th, 6th, 7th, 8th, 9th and 10th Respondents were all served with the motion on Notice for interlocutory injunction on 15/1/2010. The learned silk for the Appellants contended vehemently that what happened in this matter is an affront on the doctrine of lis pendens and that being the case the Learned Senior Advocate of Nigeria argued that the purported Election/Selection during the pendency of the substantive suit and the motion for interlocutory injunction before the lower court is of no consequence, null void and of no effect whatsoever. That this court and all other courts have a duty to ensure that their orders are not rendered nugatory. He relied on the cases of;

1. VASWANI TRADING CO. V. SAVALAKH & CO (1972) ALL N.L.R. 922 AT 929 – 937.
2. DANIEL V. FERGUSON (1891) 2 CH. 27 CA.
3. VON JOEL v. HORNSEY (1895) 2 CH, 774 CA
4. MILITARY GOVERNOR, LAGOS STATE & ORS V. CHIEF EMEKA ODUMEGWU OJUKWU (1986) ALL NLR 233 AT 244 – 245.

 

The learned silk also drew the attention of this court to cases where the Supreme Court made it clear and frowned at attempt of litigants to foist upon the Court of Appeal a fait accompli and the fact that the Court of Appeal has been held to be entitled to make an order of mandatory injunction reversing prejudicial steps taken at trial court to pre-empt pending application to vary order of court or to restrain the doing of an act.

 

He relied on the cases of:

1. ABUBAKAR V. UNIPETROL PLC (2007) 8 NWLR (PT 769) 242 AT 251 – 242.
2. AMADI V. COMMISSIONER FOR EDUCATION IMO STATE (2001) 9 NWLR (Pt 717) 17 AT 27.
3. EZEGBU V. F.A.T.B LTD (1992) 1 NWLR (PART 220) 699 AT 723, 725 AND 726.

 

The Senior Counsel submitted that the Supreme Court had stated that under the doctrine of lis pendens parties to the proceedings in court ought not to do anything which may have the effect of rendering nugatory, the Judgment of the Court. He referred the court to the following cases viz:-

1. AGBAKOBA VS INEC (2008) 18 NWLR Pt 1119) 489 AT 549.
2. PETER OBI V. INEC & ORS (2007) 11 NWLR 1046 per CHUKWUMA ENEH, JSC at 694 D-F and
3. ADEOGUN V. FASHOGBON (2005) 17 NWLR (PART 1115) 149 AT 173 – 174 per TABAI, JSC.

 

That the Appellant produced overwhelming and uncontroverted affidavit evidence substantiated by proof of service of the motion on Notice for Interlocutory Injunction on many of the Respondents on 15th January, 2010 a day before the purported election of 16th January 2010 indicating that the Respondents were fully aware of the pending matter. He referred to Exhibits A and “A”, attached to the motion before the lower court and that notwithstanding that the counter Affidavit of the two sets of Respondents were discountenanced by the lower court, it refused to grant the Appellants’ application seeking to set aside the election. That the lower court held that doctrine of lis pendens does not apply. The lower court also according to learned silk held that since the Respondents were served the writ of summons before its issuance on 18/1/2010 the motion was incurably defective as it pre dated the issuance of the writ of summons. The learned silk contended that the lower court was mistaken in thinking that the doctrine of lis pendens was limited to real property in subsisting pending matters. He submitted that the doctrine of lis pendens transcended real property given the present state of the law. He cited cases wherein the doctrine of lis pendens was held applicable to other suits aside from cases dealing with real properties viz:-

1. UBA V. ETIABA (2008) 6 NWLR (Pt 1082) 154 AT 186 per MUNTAKA-COOMASIE JCA (as he then was).
2. PETER OBI VS INEC & ORS supra
3. AGBAKOBA VS INEC supra
4. AMAECHI VS INEC (2008) 5 NWLR (Pt 1080) 227 AT 445 – 446 per ADEREMI JSC.

 

Now turning to the issue of non-return date on the motion on Notice for interlocutory injunction as well as service of same before the issuance of the writ of summons, Learned Senior Counsel to the Appellants argued that the learned trial Judge missed the point completely in predicating the validity of the motion on Notice and its service thereof on the issuance of the writ. It was the contention of the learned silk that since Order 33 Rule 1(3) of the Plateau State High Court allows a Plaintiff to even file motion for injunction in case of expediency filing or issuance of Writ of Summons cannot determine the validity or authenticity of motion for injunction and its service thereof on the parties in the case. To Learned Senior Counsel issuance of writ of summons on 18-01-2010 after service of motion on Notice for Injunction on 15th January, 2010 on 4th, 6th, 7th, 8th, 9th and 10th Respondents cannot be used as a convenient alibi to excuse the pre-emptive action of the Respondents calculated to foist upon the lower court a fait accompli.

 

The learned Senior Counsel finally submitted on issue one that the learned trial Judge was clearly in the wrong to have declined to grant the motion of the Appellants in this case. He urged the court to resolve issue 1 in favour of the Appellants.

 

In his reply to the elaborate submissions of the learned silk to the Appellants on issue one, the learned counsel to the 1st, 2nd, 3rd and 5th Respondents L. D. Kumbak Esq., predicated his submission on the lone issue he raised and contended at the outset that the appeal raises the question of the importance of service of the court processes and the effect of failure to serve such processes in this suit on the 1st set of Respondent on or before the 16th day of January, 2010 when the said election/selection of a New Galadiman Daffo and Ward Head Mandung was conducted even though the action was filed on 14-1-2010.
He drew the attention of the court to pages 57 and 71-72 of the Record of proceedings concerning the endorsement and return by the Bailiffs. That the return made it clear that the 1st set of the Respondents were not served with the court processes in this suit on or before 16th day of January, 2010.
That the 1st Respondent was served on 29th day of January, 2010. The 3rd Respondent according to L. D. Kumbak Esq. was served on 5th day of February, 2010 while the endorsement and return copy did not show any date on which the 5th Respondent was served. According to learned counsel to the Respondent, by the time the 1st, 2nd, 3rd and 5th Respondents were served the processes of the lower court and became aware of the pendency of the Appellants’ suit the election/selection of ZAKARIYA MALO MAFULUL as the new Galadima Daffo and Ward Head of Mandung which the Plaintiff sought to restrain had taken place.

 

It was the submission of learned counsel to the 1st set of Respondents that it is fundamental that at or before the hearing of a suit all parties who may be entitled to or claim some share or interest in the subject matter or likely to be affected thereby must be duly served with court processes. That the Appellants failed to serve the first set of Respondents before 16th day of January, 2010 hence according to L. D. Kumbak Esq., the doctrine of lis pendens cannot avail the Appellants against the 1st set of Respondents because they only became aware of this suit after the election aforesaid. He relied on the following cases:-

1. NWANKWO v. KANU (2010) 6 NWLR (PT 1189) 62 AT 92 per ARIWOOLA, JCA now JSC.
2. OKOYE V. OKORONKWO (2009) 6 NWLR (PART 1136) 130 AT 135.
3. NPORNWI V. EJIRE (2009) 9 NWLR (PART 1145) 131 at 142
4. SIBENU v. IMAFIDON (2009) 8 NWLR (PART 1158) 231 at 234.
5. UBA PLC V. ADEMOLA (2009) 8 NWLR (PT 1142) 113 AT 117.

 

That it was impossible for the 1st sets of Respondents to have been aware of the pendency of the action in the absence of service of the court processes on them. He submitted that the Appellants were unable to show any evidence of service of the Court processes in this suit on the 1st set of Respondents. The 1st set of Respondents learned counsel submitted that all the authorities relied upon in the Appellants Brief of argument concerning doctrine of lis pendens are of no moment as according to learned counsel, in those cases the parties were aware of a pending suit against them in that they were served court processes. The Respondents (1st set) urged the court to resolve their own issue in favour of the 1st set of the Respondents.

 

On his own part the Learned Counsel to the 4th, 6th – 10th Respondents G. D. Fwomyon Esq. DDHPP, in response to the argument of the Appellant on issue one submitted that from the affidavit evidence the Exhibits especially the proofs of service of the writ of summons, the statement of claim, statement of Defence and other relevant facts, the Appellants did not prove their allegation that the selection of Zakariya as Galadiman Daffo and Ward Head of Mandung on the 16th day of January, 2010 was done in total disregard to the principles of the doctrine of lis pendens. He referred to the proofs of service of the writ of summons contained on pages 55, 57 and 61 of the Record of Proceedings as to service on the 1st, 2nd, 3rd and 5th Respondents. The learned DDHPP submitted that it was after the selection on 16/1/2010 that the said Respondent became aware of the pendency of the action 14 days later. He argued that it could not be said that the said Respondents violated principle of Lis pendens. The learned counsel to the 4th, 6th – 10th Respondent also drew attention to the fact that the 1st, 2nd, 3rd and 5th Respondents were not served with the motion for interlocutory injunction until after the act complained had taken place. He stated that the Respondents conducted the election of the Galadiman Daffo without notice of the pending suit.

 

The learned counsel to the 4th, 6th, 10th Respondents also stated that majority of them were served with motion for interlocutory injunction on 15/10/2010 and were served with the writ of summons between 28/1/2010 and 4th February, 2010 and that the said 2nd set of Respondents did not take part in the selection of the new Galadiman Daffo and Ward Head of Mandung on 16th January, 2010.
It is the submission of Fwomyon Esq., that basically and primarily, the doctrine of lis pendens only applies to real property. He relied on the case of ENEKWE V. I.M.B (NIG) LTD (2007) ALL FWLR (PT 349) 1053 AT 1072 C – G per NIKI TOBI JSC who learned counsel said cleared the scope and usefulness of the doctrine of Lis pendens and conditions for its application.

 

He however conceded that by case law the doctrine of lis pendens has been expanded to cover cases unrelated to real property. He contended that it must be proved beyond reasonable doubt and not on preponderance of evidence that a person has breached the doctrine of lis pendens as according to him the punishment is grave and devastating that the Appellants must proof that the Respondents not only had constructive notice but sufficient notice of the pending action. That the person elected ZAKARIYA MALO MAFULUL had no notice of the action. That there must be proof of service of both the writ of summons and the motion on Notice to prove breach of the doctrine of Lis pendens. According to him the appellants merely asserted that the Respondents were served with writ of summons and application or injunction without more.

 

He relied on pages 66, 71, 72, 148 and 165 of the Record. He submitted that from the record the 4th, 6th, 7th, 8th, 9th and 10th Respondents who were served with the motion for Interlocutory Injunction on 15-1-2010 did not participate in the election/selection of ZAKARIYA MALU MAFULUL as Galadiman Daffo and Ward Head of Mandung which took pace on 16th January, 2010, that the 1st and 2nd Respondents who participated in the election/selection aforesaid were only served with the motion or Injunction 14 days after the election. The learned counsel to the 4th, 6th – 10th Respondents informed the court that the 1st, 2nd, 3rd and 5th Respondents who were by the customs and tradition of Daffo and of Mandung people saddled with the responsibility of electing the Galadima Daffo and Ward Head of Mandung had no notice of any pending suit related thereto. He reiterated that ZAKARIYA MALO MAFULUL who won the election to the stool of GALADIMAN DAFFO and Ward Head of Mandung is not a party to this action.

 

The 2nd sets of respondent while relying on the case of ENEKWE V. IMB NIG LTD supra submitted that interest acquired in the subject matter pending in court is subject to the final decision of the court on the matter.

 

The said Respondents are of the view that the interest acquired by ZAKARIYA MALO MAFULUL as the new GALADIMAN DAFFO AND Ward Head of Mandung is subject to the final decision of the trial court. He relied on pages 295 paragraph 3 of the Record.

 

On the cases of Military Governor of Logos State Vs Chief Ojukwu, Abubakar V. Unipetrol PLC supra and Adeogun Vs Fashogbon cited by Appellant the learned Counsel to the Respondent conceded to the principles laid down in those cases. He however submitted that the basis of those decisions is that the parties to the suits were aware of the existence of the suits. That parties to an action must have sufficient notice and not constructive notice of the pending case. Fwomyon Esq., submitted that proof that a party is in contempt of the rule of law in this regard must not come from mere assertion in an affidavit that the person was in contempt of the rule of lis pendens, it must be shown that the party was aware of the pendency of the suit. That burden is on the party who asserts to prove. He relied on section 131 of the Evidence Act.

 

The 2nd sets of Respondents submitted they acted in good faith and did not commit an affront to the rule of law to warrant interference of this court with the election of ZAKARIYA MALO MAFULUL as the new Galadima Daffo and Ward Head of Mandung. They relied on the finding of the lower court on page 294 of the record exonerating the Respondents of any breach of rule of is pendens. The 4th, 6th – 10th Respondents contended that the finding of the lower court could not be said to be perverse. That refusal of the lower court to set aside the election did not occasion a miscarriage of justice. That the person elected – Zakariya Malo Mafulul – is an interested party who ought to be joined as a necessary party. It is the further submission of the 4th, 6th – 10th Respondents that the person elected should not be punished for sin he did not commit as he had no notice of the pending suit. He relied on the cases of IJEBU ODE L.G.C. VS SEGUN (2005) ALL FWLR (PART 253) 635 AT 650 – 651 (CA) and the case of BADAMOSI V. U.B.A. PLC (2005) ALL FWLR (PART 282) 1937 at 1960 to conclude his submissions on issue.

 

The Appellants in reply to the submissions of 1st, 2nd, 3rd and 5th Respondents argument filed Appellants” Reply Brief on 28th November, 2012 wherein they responded to the contention of 1st set of Respondents on whether the parties to the action must be served the court process or be made aware of the pendency of the Appellants action before the doctrine of lis pendens could be applied. The Appellants stated that the argument of the said Respondents was misconceived. The Appellants submitted that where litigation is pending between litigant (sic) parties as to a particular subject matter, none of the parties is allowed to take laws into his hands so as to prejudice the other party and foist a fact accompli on the court. That the issue of service of court process and/or Notice to a party in a pending litigation under Doctrine of lis pendens is not founded upon implied or constructive notice. The appellants said it made assiduous effort to serve the Respondents with the motion tor interlocutory Injunction on 15/1/2010 but according to the Appellants, the 1st, 2nd, 3rd and 5th Respondents dodged service and only the 4th, 6th – 10th Respondents were served with the motion for interlocutory injunction on 15th January, 2010 (pages 62 – 71 of the record).
In what appeared to be a re-arguing of the Appeal the Appellants cited again the following cases on fait accompli viz:

1. AGBAKOBA VS INEC (2008) 18 NWLR (PART 1119) 489 at 569 F-G.
2. INEC V AGBASO (2010) 1 NWLR (PART 1174) 1 at 42 C-F AND
3. OBI V INEC (2007) 11 NWLR (Pt 1046) 565 at 672 B-E.

On the submission that no notice is necessary before doctrine of lis pendens could apply appellants cited the following cases:

1. BUA VS DAUDA (2003) 13 NWLR (Pt 838) 657 at 695 D-E.
2. UMOH VS TITA (1999) 12 NWLR (PT 631) 427 at 435 – 436 G-C.
3. BARCLAYS VS ASHIRU (1978) 1 LRN 266 OR (1978) 6 – 7 SC 99 at 123 – 124.

 

Relying on the above authorities the Appellants submitted that it is clear that in an application of the doctrine of lis pendens, the lack of knowledge on the part of the Respondent of the pendency of the suit on the subject matter does not matter.

 

According to the Appellants where litigation is being prosecuted in regard to a subject matter and one of the parties purports to do an act or another person (third party) acting on his/their behalf who may have no notice of the litigation, the purported act becomes ineffective and the third party gets nothing because the doctrine is not founded upon the fact of actual or constructive notice of the litigation but upon the fact that the law does not allow any litigant party rights to subject matter in dispute while proceedings are pending so as to prejudice the opposite party.

 

The Appellants also found fault with the argument of 1st, 2nd, 3rd and 5th Respondent that they only became aware of this suit after the said election. The Appellants contended that inasmuch as they served the 4th Respondent the Motion on Notice for injunction on 15th January, 2010, the 1st, 3rd and 5th Respondents could not have bestowed on anybody any title without the knowledge and consent of the 4th Respondent let alone 6th – 10th Respondents. That it’s a ruse for the 1st set of Respondents to have contended they has no notice of the motion.

 

The Appellant also filed Reply Brief to the 4th, 6th – 10th Respondents’ brief on 17/12/12 in reply on the same very issue of whether it was not necessary to give notice of the processes in the action to the 4th, 6th – 10th Respondents before the Appellants could invoke doctrine of lis pendes. The Appellant made substantially the same Reply they offered in similar arguments by the 1st, 2nd, 3rd and 5th Respondents on issue of service of processes and Notice. See pages 2-5 of the Appellants” Reply Brief of Argument to 4th, 6 – 10th Respondents Brief of Argument.

 

Now the zenith of the Appellants’ argument on issue one was that the lower court was wrong in holding that the doctrine of lis pendens did not apply in this matter notwithstanding that the counter affidavits of the two sets of Respondents were discountenanced by the trial court.

 

It is apposite here to find out the real meaning and importance of the doctrine of LIS PENDENS, its scope and application. The BLACK’S LAW DICTIONARY EIGHT EDITION – page 950 thereof aptly and variously defined and describes LIS PENDENS thus:

“1.     A pending law suit.

4. The jurisdiction, power or control acquired by a court over property while a legal action is pending.
5. A notice, recorded in the chain of title to real property, required or permitted in some jurisdictions to warn all persons that certain property is the subject matter of litigation, and that any interests acquired during the pendency of the suit are subject to its outcome.

– Also termed (in sense 3) notice of pendency.”

 

For a very long time in the judicial history of this country the doctrine of LIS PENDENS has been more often applied in litigation over land matters and purported disposition of land or real property by any of the parties to the litigation. The doctrine prevents the effective transfer of rights in any property which is the subject matter of an action pending in court during the pendency in court of the action. The purchaser of the subject matter buys subject to the right of the winner of the action over which the subject matter is in contest. See ADARAN OGUNDAINI Vs O. A. L. ARABA & BARCLAYS BANK OF NIGERIA LTD (1978) 6 & 7 SC 55 AT 78 – 79.

 

The doctrine was further explained in the case of MATHEW OKECHUKWU ENEKWE V. I.M.B. NIGERIA LTD & ORS (2006) 19 NWLR (PART 1013) 146 AT 171 D – H to 172 A – C where NIKI TOBI JSC said:-

“The doctrine which is embebbed in the common law gives notice to persons by way of warning that a particular property is the res of a litigation and that a person who acquires any interest in it must know well ahead that the interest will be subject to the decision of the court on the property. This reminds me of the fuller Latin expression, pendent elite nihil innovetur, which means, during litigation nothing new should be introduced. A person who buys real property in the course and pendency of a litigation has bought litigation for himself and should be prepared to face the litigation. In other words, the fortunes or gains of persons in respect of the property will be dictated or determined by the result or outcome of the litigation. Such is the strong caveat placed on the property. Although the doctrine is not the same as caveat emptor in strict legal content, it has some loose or vague affinity with it, as it relates to a person buying or purchasing a property in a market overt.”

 

Nigeria, as a common law country, applies the doctrine in appropriate cases. Is this an appropriate case for the application of the doctrine? That is the question. The case law will answer the question. In Barclays Bank of Nigeria Ltd V. Alhaji Ashiru (1978) 6 – 7 SC, this court said at page 128:

“…we think that it should be mentioned that the doctrine of lis pendens does not apply to every suit. It applies to a suit in which the object is to recover or assert title to a specific property; the property however, must be real property for the doctrine has no application to personal property.”

 

In order for the doctrine of lis pendens to apply, the party relying on it must prove the following:-

1. The object of the suit must be to recover or assert title to specific property.
2. The property must be real property.
3. At the time of the sale of the property the suit in question was pending.

 

All the above conditions must exist in the case. In other words, a matter based on the doctrine of lis pendens will fail if any of the conditions is not satisfied.
See also the following cases:

1. ENYIBROS FOOD PROCESSING COMPANY LTD & ANOR VS N.D.T.C. & ANOR (2007) 9 NWLR (PART 1039) 216 at 252 G-H to 253 A-D
2. J. O. OSIDELE & ORS V. MOSES O. SOKUNBI (2012) 15 NWLR (PART 1324) 470 at 499 H to 500 A- F where Muhammad JSC held:-

“This doctrine postulates the rule that sale conducted when a matter is in litigation, such a sale is void ab-initio and no title can be passed to the purchaser. The doctrine as a matter of policy precludes plaintiff from selling the land in dispute when he knows that there is dispute in court over the ownership of the land.

 

In the case on hand, the conveyance affected by the doctrine, as it is could not transfer any effective title to the purchaser because the doctrine deprives him of any right over the property during the currency of the litigation or pendency of the suit. See: Osagie V. Oyeyinka (1987) 3 NWLR (pt. 59) 144. In fact, this court in the case of Ebueku V. Amola (1988) 3 SC 360 at page 366. (1988) 2 NWLR (pt. 75) 128 at pp. 154 – 155 stated the law succinctly as follows:-

“What of the 6th defendant who bought from the plaintiff who had no title and who bought during the course of the present litigation? The simple answer is that the 6th defendant with his eyes wide open bought a law suit. The plaintiff who sold to him suffered from double disability. The first is that he (the plaintiff) was precluded by the doctrine of lis pendens from selling the land in dispute when he know that there was a dispute in court over the ownership of the self same land. The 6th Defendant may be a purchaser for value without notice but as this court observed in Osagie Vs Oyeyinka (1987) 3 NWLR (PT. 59) 144 at 156 “the doctrine (of Lis pendens) is really designed to prevent the vendor from transferring any effective title to the purchaser by depriving him (the vendor) of any rights over the property during the currency of the litigation of the pendency of the suit.”

 

In a sale of a subject matter in lis pendens, both the vendor and the purchaser suffer some disadvantages.

 

The former stands the risk of lack of capacity to effect a legal transfer of title while the latter stands the risk of purchasing nothing from the vendor.”

 

It used to be thought that the doctrine of lis pendens has no application to other civil matters. The apex court in the land has now made the doctrine applicable to all civil matters. The rationale is to dissuade parties in litigation from disposing of or destroying the res in the action so that all parties must await decision in a matter as to the right of the parties. It is both in the interest of the parties themselves and the unwary or wayward third parties who may want to gamble in purchasing or acquiring any interests in the subject matter of the pending action. See:

1. MR PETER OBI V. INECT & ORS (2007) 11 NWLR (PART 1046) 565.
2. RT. HON ROTIMI CHIBUKE AMAECHI VS INEC & ORS (2008) 5 NWLR (PART 1080) 227.
3. HON. GOZIE AGBAKOBA V. INEC & ORS (2008) 18 NWLR (PART 1119) 489.

 

The above three cases are election cases. The doctrine was also recently applied by the Supreme Court in the case of BFI GROUP CORPORATION V. BUREAU OF PUBLIC ENTERPRISES (2012) 18 NWLR (PART 1332) 209, a case dealing with acquisition of ALUMINIUM SMELTEK COMPANY OF NIGERIA (ALSCON). At page 244 FABIYI JSC, who delivered the leading Judgment held:

“At the onset, I noted it in this Judgment that Rusal was the 2nd bidder whose bid in the sum of US$205 Million with conditionalities was rejected by the respondent. The appellant’s bid in the sum of US$410 Million was preferred by the respondent. The appellant was declared winner at the auctions sale conducted on 14th June, 2004. Indeed, if anyone asks me how the name of Rusal has now surfaced on this score, like Sir Thomas Moore, I wilt say ‘it is not for me to attempt to fathom the inscrutable workings of providence’. The respondent should provide the needed answer.

It is being touted that the respondent has taken steps to foist a fait accompli on the court. The respondent must be made to appreciate the purport of the doctrine of lis pendens which aimed at preserving the subject matter of litigation. Any extraneous body including Russal which buys the subject of litigation does so at its own risks. See. Vaswani Trading Co. v. Savalakh & Co. (1972) NSCC 692; Ogundiani V. Araba (1978) 6-7 SC 55 at 74.”

(Underlined mine).

 

The main grouse of the Appellant against the lower court was that the lower court failed to invoke the doctrine of lis pendens in the face of all the Supreme Court decisions cited to him showing that the doctrine applies to the present case. Appellants had earlier argued in paragraph 4.21 that the lower court did not apply the doctrine of lis pendes because he was under a mistaken believe that the doctrine was limited to real property in subsisting pending matters.
There is nothing in the Ruling of the learned trial Judge stating that the doctrine of lis pendens is only applicable in real property in subsisting pending matters. What the trial court said was that he did not agree with the Appellants that the doctrine of lis pendens was applicable to their application before the lower court. The reason for the refusal can be found on page 295 wherein the lower court said:-

“In sum all I have been trying to say is that this suit or action came to life only upon the issuance of the specially indorsed writ on 18/01/2010, two days after the act sought to be restrained or set aside was completed”

 

The stand of the trial Judge was that since the Motion on Notice to set aside the election of new Galadiman Daffo and ward Head of Mandung Village was predicated on the specially indorsed writ of summons that was issued only on 18-01-2010 the motion of Notice filed by the Appellants predated the date of issuance of the of the writ of summons which initiated the action. See pages 294-295 of the Record. The learned trial Judge was of the view that there was no date on the face of the motion to inform the Respondents as to the date of hearing.

 

The Appellants reacted to the position taken by the trial Judge in paragraph 4:23 of the Appellants’ Brief of argument submitting that:

“…the learned trial Judge missed the point completely in predicating the validity of the motion on Notice and its service thereof on the issuance of the writ.”

 

That order 33 Rule 1(3) of the Plateau State High Court (Civil procedure) Rules 1988 as amended allows parties to file motions for injunctions even before the writ of summons is filed in case of expediency.

 

This submission makes it necessary for me to examine the said order 33 Rule (3) of Plateau State High Court (Civil Procedure) Rules 1998 as amended. I am of the view that it is better to quote the entire ORDER 33 Rule 1, of the aforesaid Rules so that justice may be done in the interpretation of the said Rules. See MALLAM A. ABUBAKAR & ORS V. SAIDU USMAN NASAMU & ORS (2011) 12 (Pt 2) SCM 492 at 508 D – E per BODE RHODES-VIVOUR JSC who said:-

“This calls for a diligent examination of the provisions of paragraphs 18 (1) – (5) and 47 (1) (3) of the First schedule to the Electoral Act 2010 as amended. Before I do that I must say that courts are constituted for purpose of doing substantial between the parties and in so doing Rules of court must always be interpreted to achieve that purpose. See Nichizawa v. Jethwani (1984) 12 SC P. 235; Nneji v. Chukwu (1988) 6 SCNJ p. 132; Bellow V. A. G. Oyo State (1986) 12 SC p. 111. And so, where the words of a statute are clear and free from ambiguity, they should be accorded their ordinary plain meaning and it is not for the Judge to put glosses on them or to read into them meanings which render them artificial. See. Mobil V. F.B.I.R. 1977 3 SC p.53; Torila V. Williams (1982) 7 SC P 27”

 

Order 33 Rule 1(1) (3) of the Plateau State High Court (Civil Procedure) Rules provide:-

“(1)   An application for the grant of an injunction may be made by any party to an action before or after the trial of the action whether or not a claim for injunction was included in that party’s action”

(2)     Where the applicant is the plaintiff and the case is one of urgency, such application may be made exparte on affidavit but except as aforesaid, such applications shall be made by motion on notice or summons.

(3)     The Plaintiff may not make such an application before the issue of the process by which the action is to begun, except where the case is one of urgency, and in that case the injunction applied for may be granted on terms providing for the issue of the processes and such other terms, if any, as the court thinks fit”

 

By provisions of Order 5 Rule 1 of the said Rules a writ of summons shall be issued by a Judge or an officer of the court empowered to issue summonses on application.

 

I am of the solemn view that these Rules provide conditions precedent to be met by a plaintiff before he could apply for an order of injunction against a defendant. The Judge was right when he said that the writ has not been issued when the motion for injunction was served on some of the parties to the action. The issuance of the writ of summons turns it into a command to the defendant to appear to defend the action against him and any interlocutory application therein.

 

The provision of the rule relied upon by the Learned silk does not allow motion for injunctions to be filed before filing of the writ of summons.

 

The rule is only giving opportunity to the plaintiff to apply for injunction if the exigency of the case demands it before the writ filed is issued i.e. before the writ is signed by the Judge or any officer of the court empowered to issue writ of summons. What the trial court was saying in effect was that the Rules as to issuance of the writ of summons has not been complied with before the motion on Notice was served.

 

The law needs no restatement that Rules of court are meant to be obeyed. Where the rules provide the mode of commencement of action, the plaintiff has a bounden duty to scrupulously comply with the procedure laid down so as to fully endowed the court the right to assume jurisdiction and adjudicate on the matter see AGIP (NIGERIA) LTD VS AFIP PETROL INTERNATIONAL & ORS (2010) 5 NWLR (PART 1187) 348 at 416 H TO 417 A-B where ADEKEYE JSC had this to say:-

“This court has held in numerous decisions that rules of Court must be obeyed by litigants and they are binding on all the parties before the court. Rules of Court are not mere Rules; but one by nature akin to subsidiary legislations by virtue of section 18(1) of the interpretation Act and therefore have the force of law”.

 

The 1st, 2nd, 3rd and 5th Respondents have vehemently contended that since the Appellants have not shown that they were served the motion for interlocutory injunction the Appellants could not invoke the doctrine of lis pendens against them as the Respondents were not aware of the pendency of the action and the said Motion of Notice for interlocutory injunction.

 

The complaint of non-service of process is a serious allegation coming from the 1st set of respondents and it is quite important because the whole essence of service of process on a Defendant in a case is to put him on notice so that he will be aware that there is a pending suit against him and to enable him appear to defend the action. It a fundamental condition precedent that must be fulfilled to grant the court competence to entertain or adjudicate on the Plaintiff’s matter.

 

Therefore where service of process is required, failure to serve such process is a fundamental vice and the person affected by any order made by a court against a person not served with the process is entitled to have the order set aside as a nullity. See MOHAMMED M. KIDA V. A. D. OGUNMOLA (2005) 13 NWLR (PART 997) 377 At 393 F-H to 394 A where MUSDAPHER JSC (later CJN RTD) said:-

“It is trite law, that after issue of summons or any originating process it must be properly served on the defendant without such service, he may not know that he has been sued. He may not know the claims against him. The object of the service is therefore to give notice to the defendant of the claims against him, so that he may be aware of, and be able to resist, if he desires, to that which is claimed against him. Where service of a process is legally required the failure to serve it in accordance with the law is a fundamental flaw and a person affected by any order but was not served process is entitled exdebito justitae to have the order set aside as a nullity”

 

The 1st set of Respondents were right by the position they took that they were not served with the motion for Interlocutory Injunction before the election or selection of ZAKARIYA MALO MAFULUL took place on 16th January, 2010.
The 2nd sets of Respondents that is 4th, 6th-10th Respondents admitted service of the Motion for Interlocutory Injunction but did not take part in the election/selection of one ZAKARIYA MALO MAFULUL as Galadiman Daffo and Waro Head of Mandung on 16th January, 2010.

 

The Appellants confirmed the non-service of the motion for Interlocutory Injunction or, the 1st set of Respondents in their AFFIDAVIT IN SUPPORT OF MOTION dated and filed on 10th May, 2010 praying for an order to nullify the election/selection aforesaid. The Appellants said:-

“Significantly, the 4th, 6th, 7th, 8th, 9th, 10th Respondents were served with the motion on Notice for Interlocutory Injunction on 15th January, 2010. The endorsed copies being the proof of service eloquently demonstrate this fact, see pages 62 – 71 of the Record. It is also evidently clear that the 1st, 2nd, 3rd and 5th Respondents were fully in the know of the pending suit as well as the motion on Notice for Interlocutory Injunction as at 15th January, 2010 even though dodged service of court processes”

It is not the law that service of a court process on some of the Defendants or Respondents in a case would mean service of the processes on all the Defendants or Respondent. Unless and until a party to an action engages the services of a Legal Practitioner he must be personally served the process of the court. There cannot be service through proxy or by any other means unless a court grants or makes an order for substituted service of such process. See. FIRST BANK OF NIGERIA PLC V. T. A. A. INDUSTRIES LTD (2010) 8 SCM 69 AT 116 F- I per ADEKEYE, JSC who said:

“Consequently, failure to serve a process where service of a process is required to be served renders any order made against the party not served with process null and void.

In the instant appeal not properly serving the appellant with process, whereupon service was served on it through counsel already debriefed by him to the knowledge of the applicant in the motion renders any order made against it in the application null and void. MADUKOLU V. NKEMDILIM (1962) 2 SCNLT P. 341; U.B.A. PLC VS AJILEYE (1999) 13 NWLR (PT 633) P.116, OKE V. AIYEDUM (1986) 2 NWLR (PT 23) PG 548.”

 

See also the case of DR. N. E. OKOYE V. C.P.M.B. LTD (2008) 15 NWLR (PART 1110) 335 at 352 H to 353 A-B per TABAI JSC.

 

The Appellants’ in the Appellants’ Reply Brief of Argument to 1st, 2nd, 3rd and 5th Respondents and 4th, 6th – 10th Respondents Brief of Argument respectively argued:-

“The issue of service of court processes and/or Notice to a Party in a pending litigation under the Doctrine of lis pendens is not founded upon any implied or constructive notice. In the instant case, the Appellants had on 14th day of January, 2010 filed a writ of summons against the Respondents and a motion for Interlocutory Injunction restraining the same Respondents. The Appellants made assiduous effect to serve the Respondents with Motion for Interlocutory Injunction on the 15th day of January, 2010 but the 1st, 2nd, 3rd and 5th Respondents dodged service and only the 4th, 6th, 7th, 8th, 9th and 10th Respondents were served with the Motion for Interlocutory Injunction on 15th January, 2010. See pages 62 – 67 of the Record”

 

See paragraph 2.02 page 2 lines 6 – 15 of the Appellants Reply Brief to the Brief of Argument of 1st, 2nd, 3rd and 5th Respondents. I am of the settled view that the above quoted submissions do not represent the law on the invocation of the doctrine of Lis Pendens. The case law or authorities are not saying that the parties to an action especially the Defendants no matter the nature of the res or subject matter involved should not be served court processes. What the authorities are saying is that if a third party gambles with his money or resources in purchasing the subject matter of an action whether real properties or other types of properties or share or stocks the third party would not be heard to claim that he is a purchaser for value without notice that the property was in litigation or a subject matter of litigation when he bought the property. He would not be allowed (3rd party) to feign ignorance of the fact that he bought the property when a suit was pending on between his vendor and another person.

 

This was/is clearly brought out in all the cases relied upon by the Learned Senior Counsel to the Appellants especially in the following cases:-

(1)     BUA V. DAUDA (2003) 12 NWLR (PT 838) 657 at 695 D – E.

(2)     UMOH V. TITA (1999) 12 NWLR (PART 631) 427 AT 435 – 436 – E.

(3)     BARCLAYS V. ASHIRU (1978) 1 LRN 261 OR (1978) 6 – 7 SC 99 at 123 – 124 per IDIABE JSC.

 

On page 695 of BUA V. DAUDA supra quoted by Appellants the Supreme Court held:-

“Where a litigation is pending between a plaintiff and a Defendant as to right to a particular estate, the necessities of mankind require that the decision of the court in the suit shall be binding not only on the litigants, but also upon those who derive title under them of alienation made pending the suit; whether such alienees had or had not notice or the pending proceedings. If this were not so there could be no certainty that litigation would ever come to an end” (underlined mine)

 

My Noble Lord NIKI TOBI JSC likened the doctrine to the popular caveat emptor. So it is really the purchaser who ought to beware or anyone seeking to benefit under the subject matter of pending litigation.

 

The gamble and the unpalatable consequences of such a purchase or acquisition of subject matter of an action during the pendency of the case is squarely the problem or gain of the purchaser or the beneficiary of subject matter of an action during the pendency of the action. See MR. KOLAWOLE ORONTI v. ALHAJI S.A. ONIGBANJO (2012) 8 SCM 150 AT 162 C – D where MARY UKAEGO PETER-ODILI JSC.

 

The doctrine of Lis pendens cannot curtail the rights of the parties to fair hearing as any failure to serve a defendant court process affecting his right will be treated as a breach of section 36 of the 1999 Constitution as amended. See FBN V. T.S.A. INDUSTRIES (2010) 8 S.C.M 1 69 AT 116 H-I per ADEKEYE JSC who held:-

“Also non-service of process affects the jurisdiction of a court in respect of any matter where a case comes before it by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction, the court competently assumes jurisdiction. Proceedings conducted in a trial without due process being served on the parties or one of the parties amount to a nullity. The outcome of the proceedings will surely be against the principle of natural justice affecting the competence of the court which sat over the matter. Sken Consult Nig. Ltd V. Ukey (1981) 1 SC 6”.

 

The service of the motion for Interlocutory injunction is sine qua non to the hearing of the said motion against the Respondents. The 1st, 2nd, 3rd and 5th Respondents cannot be held to have breached the DOCRINE OF LIS PENDENS on 16/1/2010 when they carried out the alleged election/selection of one ZAKARIYA MALO MAFULUL as Galadiman Daffo and Ward Head Madung when it has been shown they were not served with the writ of summons and the Motion for Interlocutory Injunction filed in this action.

 

The doctrine of lis pendes is only applicable to parties to an action or suit when they have been properly served with all necessary court processes in the action. See MR. PETER OBI V. INEC & ORS (2007) 11 NWLR (PART 1046) 565 AT 645 F-G where ADEREMI JSC who delivered the lead Judgment held:-

“I only need to add that as at 14th April, 2007 when the 1st Respondent (INEC) was conducting gubernatorial election in Anambra State, the seat of the Governor of that State was not vacant. That election was a wasteful and unnecessary exercise. The 1st Respondent was aware at that time the appellant was in court pursuing his legal rights. A body that has respect for rule of law, which INEC ought to be, would have waited for the outcome of the proceedings; particularly when it was aware of it”

 

I am not unmindful of the Appellant’s submission that since the learned trial Judge discountenanced the counter Affidavits of the two sets of Respondents to their application to set aside the Election/Selection of Zakariya Malo Mafulul as Galadiman Daffo and ward Head of Madung the learned trial Judge ought to have granted the application.

 

It is not in all cases where there is no counter Affidavit that a party’s Affidavit in support would be taken as admitted or taken to have established the facts asserted therein where the facts deposed are self defeating and do not support the reliefs sought in the motion papers. The lower court evaluated the Affidavit and found that the motion was served on some of the Defendants when the writ had not been issued and held that the motion was defective. See. DR. N. E. OKOYE V. CENTRE POINT MERCHANT BANK LTD (2008) 15 NWLR (PART 1110) 335 AT 362 C-D where NIKI TOBI JSC said:-

“I should also say that affidavit evidence is not sacrosanct. It is not above the evaluation of the courts. Like oral evidence, a court of law is entitled to evaluate affidavit evidence in order to ensure its veracity and or authenticity. While uncontradicted affidavit evidence should be used by the court, there are instances when such affidavit evidence clearly tell a lie and courts cannot be blind to such a lie. One example would suffice. If a party deposes in an affidavit that 1st of April every year is Nigeria’s Independence Anniversary’s court of law will certainly no accept such a deposition as true, as the correct dated us 1st if October. I hope I have made myself clear.”

 

The trial Judge was right in his finding that the doctrine of lis pendens did not apply to this case on appeal.

 

ISSUE One is accordingly resolved against the Appellants.

 

ISSUE 2

WHETHER THE LEARNED TRIAL JUDGE WAS NOT IN BREACH OF THE DOCTRINE OF STARE DECISIS WHEN HE REFUSED TO FOLLOW THE SUPERIOR DECISIONS OF THE FINAL COURT OF THE LAND. SUCH AS VASWANI TRADING CO. VS SAVALAKH & CO 929 & 931: MILITARY GOVERNOR, LAGOS STATE 8 ORS V. CHIEF EMEKA ODUMEGWU OLUKWU (1986) ALL N.L.R 233 at 244 – 245: ABUBAKAR V. UNIPETROL PLC (2007) 8 NWLR PART 269) 242 at 251 – 252 AMONGST OTHERS ON THE GROUND THAT THE DECISIONS IN THOSE A CASES WERE DISTINGUISHABLE FROM THE ONE AT HAND. (GROUND 5)

 

The learned silk for the Appellants stated that issue two impugned the refusal of the learned trial Judge to follow decisions of Supreme vis-a-vis the doctrine of stare decisis having regard to the cases listed in issue 2. The Learned silk adopted the arguments canvassed in respect of issue 1 and submitted that from a careful examination of those cases they all dealt with impudent attempt by the parties in the case to prejudge the outcome of the cases by taking adverse steps during the pendency of the proceedings.

 

According to him the decisions in those cases hold good in the instant case where the respondents purported to conduct an election in respect of the subject matter before the lower court. That those cases settled principles regarding lis Pendens.

 

The learned senior counsel submitted that by the doctrine of stare decisis the decision of the Supreme Court on any given matter is not only superior to but binds all other courts (including the Court of Appeal) subordinate thereto just as the decisions of Court of Appeal binds all other courts subordinate thereto including the trial court. He relied on the following cases:

(1)     KERENI V. ABRAHAM (2010) 1 NWLR (PART 1176) 443 AT 461.

(2)     ABACHA V. FAWEHINMI (2000) 6 NWLR (PART 660) 228 AT 317 F – G.

(3)     MAJEKODUNMI V.R. (1952) 14 WACA 54 at 66 – 57.

(4)     ISIBOR v. THE STATE (1970) 1 ALL NLR 248,

(5)     OGBUNYIYA V. OKUDO (1979) 3 LRN 318 at 322 – 324. AND

(6)     SULEIMAN V. C.O.P PLATEAU STATE (2008) 8 NWLR (PART 1089) 298 at 330, 337 AND 332 Per NIKI TOBI JSC.

 

That the learned trial Judge was patently in breach of the doctrine of stare decisis when he refused to follow superior decisions of the court regarding the doctrines of lis pendens. The learned silk concluded his argument on this issue thus:-

“Indeed, the distinction made by the learned trial judge as justification for not following the decisions of the superior court in question, is with all due respect, imaginary and inexcusable”

 

He urged this court to resolve issue two in favour of the Appellants. The 1st, 2nd, 3rd and 5th Respondents did not make any specific response to the submissions of Appellants on issue 2.

 

The 4th, 6th – 10th Respondents in response to issue 2 formulated by the Appellant conceded that the decisions of the superior courts are binding on all the lower courts. The learned counsel to them G. B. Fwomyon Esq., however submitted that the trial court did not violate the doctrine of stare decisis when it held that the cases relied upon by the Appellants were not applicable to the instant case in that by the ratio decedendi in those cases the appellants failed to establish that lis pendens rule was breached in this case. That the learned trial Judge rightly found on page 295 of the record that there was no merit in the Appellants application hence its dismissal.

 

That the trial court did not arrive at its decision on any mistaken belief that the doctrine of lis pendens is limited to real property as the subject matter of a pending suit but that the appellants did not prove the alleged breach of the doctrine by the Respondents.

 

The learned counsel to the 4th, 6th – 10th Respondent said the cases cited by the learned silk to the Appellants are distinguishable for the following reasons:-

(a)     The present case is not on all fours with the cases cited.

(b)     There was only one set of Respondent’s in each of the cases cited whereas there are two sets of Respondents herein this case.

(c)     The Respondent(s) in each of those cases were served with either writ of summons or motion on notice before the act complained of was done that the Respondents in those cases were aware of the suits.

 

The learned counsel to the 2nd sets of Respondents stated that in this case the 1st sets of Respondents (1st, 2nd, 3rd and 5th) that conducted the act complained of were not served any court processes before the election.

 

They were not therefore, according to learned counsel, aware of the pendency of the suit herein before the conducted the election of Galadiman Daffo and Ward Head of Mandung Village on 16th day of January, 2010

 

That the higher courts have stipulated some conditions for departure from doctrine of precedent and that is, where the facts of the case decided by the Higher Court, can be distinguished from that of the lower court or when cases are not on all forms with each other like in the present case and situation.
The 2nd sets of Respondents drew the attention of this court to page 294 of the Record paragraph 1 wherein the learned trial Judge held that the cases of VASINANI TRADING CO. V. SAVALAKH & CO (1972) ALL NLR 922 AT 931; MILITARY GOVERNOR, LAGOS STATE V. CHIEF EMEKA ODUMEGWU OLUKWU (1985) ALL NLR 233 at 244 – 245 among others are cases decided on facts quite distinguishable from the instant case.

 

I agree with the submission of the learned Senior Counsel to the Appellants in paragraph 5.03 of the Appellants’ Brief Argument that it is beyond argument that under the doctrine of judicial precedent known as stare decisis the decision of the Supreme Court as the apex court in the land on any given matter binds other courts in the land including this court. The doctrine has always enjoyed constitutional backing in this country. It is therefore constitutionally mandatory for all courts to follow and apply Supreme Court decision standing on all fours with the facts and law emanating in any case before court below the Supreme Court. See ALHAJI M. M. DINGYADI & ANOR V. INEC & ORS (2011) 10 N.W.L.R (PART 1255) 347 at 401 F – E per ADEKEYE JSC who held as follows:-
“Section 287(1) OF THE Constitution of the Federal Republic of Nigeria 1999 stipulates that:

1. The decisions of the Supreme Court shall be enforced in any port of the Federation by all authorities and persons and by courts with subordinate jurisdiction to that of the Supreme Court.
2. The decision of the Court of Appeal shall be enforced in any part of the Federation by all authorities and persons and by courts with subordinate jurisdiction to that of the Court of Appeal.
3. The decisions of the Federal High Court, a High Court and of all other courts established by this Constitution shall be enforced in any part of the Federation by all authorities and persons and by other courts of law with subordinate jurisdiction to that of the Federal High Court, a High Court and those other courts respectively.

 

This is the doctrine of stare decisisi et non quieta movere or judicial precedent. The meaning and import is to abide by former precedents where same points come again in litigation. It presupposes that the law has been solemnly declared and determined in a previous case. It does preclude the judge of subordinate courts from changing what has been determined. Under the doctrine of stare decisis, lower courts are bound by the theory of precedent. It is in effect a doctrine which enjoins judges to stand by their decisions and the decisions of their predecessor however wrong they are and what ever injustice they inflict. All courts established under the constitution derive their powers and authority from the constitution. The hierarchy of courts shows the limit and powers of each court. It is to ensure that hierarchy of the court is never in issue.
Mohammed v. Olawunmi (1993) 4 NWLR (Pt. 287) pg. 254.
7up Bottling Co. Ltd V. Abiola & Sons (Nig.) Ltd. (1995) 3 NWLR (PT. 383) Pg. 254.

 

Osho V. Foreign Finance Corporation (1991) 4 NWLR (pt. 184) pg. 157.
Dalhatu V Turaki (2003) 15 NWLR (PT. 843) PG.310.  University of Lagos V. Olaniyan (1985) 1 NWLR (PT. 1) pg. 156.

 

The doctrine of judicial precedent does not involve an exercise of judicial discretion at all – it is mandatory.”

 

See also: CYRIL O. OSAKWE V. F.C.E. (TECHNICAL) ASABA (2010) 10 NWLR (PART 1201) 1 at 34 D-F per OGBUAGU JSC.

 

It is necessary for me to examine the facts of the three cases relied upon which the Appellants accused the trial Judge of refusal to follow and apply them to the case herein upon doctrine of lis pendens invoked by the Appellants’ learned Senior Counsel.

 

In the case of the MILITARY GOVERNOR OF LAGOS STATE & IRS VS CHIEF EMEKA ODUMEGWU OJUKWU (1986) 1 ALL NLR (PART 1) 194 (PUBLISHED BY Ministry of Justice) the following facts emerge on page 196 – 197:

“On 10th October 1985 an ex-parte application made by Emeka Ojukwu Respondent in this Court came before the High Court of Lagos State (Omotosho J) seeking interim injunction restraining the Military Governor of Lagos State, the Commissioner of Police Lagos State, and the Attorney-General Lagos State from ejecting the said Emeka Ojukwu, who hereafter will be referred to simply as Ojukwu in these Reasons for Ruling, and members of his family from No. 29 Queen’s Drive, Ikoyi, which he referred to in his application as his house. The interim order sought from the High Court was meant to operate only until there was reasonable opportunity to have the matters in issue before the High Court dealt with. Ojukwu swore to an affidavit before the High Court that the house belonged to his father after whose death he, Ojukwu, became the owner of the house.

 

He went on further and deposed on oath that during the period of the Civil War which lasted from 1967 to 1970, and which he led against Nigeria from an enclave he termed Biafra, the house remained unoccupied. After the Civil War, Ojukwu resided in the Ivory Coast and though that war ended in 1970, Ojukwu came back to Nigeria, only in 1982, after he had been granted a full pardon by the Government of the Federal Republic of Nigeria.

 

Ojukwu then said he moved to the house having paid the sum of N90, 000.00 to the Lagos State Government for “expenses incurred by the said Government in keeping the house.” And that all the members of his family had been residing in the house before the present trouble.

 

The learned Judge granted the interim order for injunction on the grounds of his ownership of the house and impending threat to evict him.

 

The matter then moved to one of notice of the Lagos State.

 

Ojukwu would appear, at that stage, to have changed front. He now said the property belonged to Ojukwu Transport company owned by his late father and that the N90,000.00 which he paid was paid to Agents in charge of the property for the purpose of securing a lease of the property.

 

The learned trial Judge refused equitable relief of injunction against the Lagos State Government on the ground that the property is an abandoned property and that Ojukwu had failed to show that he had a legal right to or interest in the property.

 

The learned Judge also said that Ojukwu had not come to equity with clean hands:

 

What followed was an application by Ojukwu Transport Limited (thereinafter referred to in this ruling as Ojukwu Transport) as a Party interested before the Court of Appeal, asking for leave to appeal against the ruling of the High Court and an application by Ojukwu seeking that he be “reinstated in his residence at No. 29 Queen’s Drive Ikoyi.” The Court of Appeal went thoroughly through both prayers. One serious point brought before the Court of Appeal was that since the notice of leave to appeal was filed and served on the Lagos State government, the Government resorted into what they termed self help and evicted Ojukwu notwithstanding the fact that his application was pending before the Court of Appeal.

 

The Lagos State Government used “some one hundred and fifth armed men” to evict Ojukwu, even when his suit was pending in the high Court and his application was before the Court of Appeal, Nnaemeka Agu, J.C.A., delivering the ruling of the Court Appeal traced the history of such forcible eviction from the time of Richard II in England and dealt with the position of the law in this country. And after a thorough investigation of the law, in regard to which I would respectfully commend the learned Justice for his industry, he came to the conclusion that the right of self-help ended when the issues were turned over to the court. The court then ordered that Ojukwu be reinstated into the property, following the forcible election which the Lagos State Government termed self-help.

 

Now, and this is important. That Lagos State Government refused to comply with this order of the Court of Appeal or to put it mildly, did not comply with the order. The order was held on 13th November 1985 and was in the following terms-

(ii)     Pending the determination of the appeal of the applicant against the said decision, against the respondents and in favour of the applicant to his residence at No. 29, Queen’s Drive, Ikoyi, Lagos, and restraining the respondents and all their officers, servants, agents, and functionaries from evicting or taking any steps to evict the applicant from his residence at No, 29 Queen’s Drive Ikoyi, Lagos.”

 

Rather than comply with this simple but positive order, the Lagos State Government appealed on 22nd November to this Court on the ground inter alia that:

“the remedy of interlocutory injunction is not available for an act which has been carried out and concluded.”

 

And while ruling against Appellant on page 199 of the report lines 5 – 13 that very eminent jurist fate KAYODE ESO JSC of blessed memory said:-

“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. It is more serious when the act of flouting the order of the court, the contempt of the court, is by the executive under the constitution of the Federal Republic of Nigeria, 1979, the Executive, the Legislature (when it lasts) and the Judiciary are equal partners in the running of a successful government.”

 

The case of VASNANI TRADING CO. V. SAVALAKH & CO. (1972) ALL NLR 922 received a place of pride in the said case of MILITARY GOVERNOR LAGOS STATE OJUKWU supra as both the decision and facts of the case were crisply brought out by OPUTA JSC on pages 209 line 40 – 53 and 210 lines 1-13 as follows:-

“what is the meaning of “nugatory” as used above? I cannot do better than quote the memorable words of Coker, J.S.C. in Vaswani Trading Company V Savalakh 7 Co. (1972) 12 S.C. 77 of p. 82 :-

“when it is stated that the circumstances or conditions for granting a stay should be special or strong, we take it as involving a consideration of some collateral circumstances and perhaps in some cases inherent matter which may, unless the order for stay is granted destroy the subject matter or the proceedings or foist upon the court, especially the Court of Appeal a situation of complete helplessness or render nugatory any order or orders of the Court of Appeal or paralyze, in one way or the other, the exercise by the litigant of his constitutional right of appeal or generally provide a situation in which whatever happens to the case, and in particular even if the appellant succeeded in the Court of Appeal, there could be no return to the status quo. All rules governing stay of actions or proceedings, stay of executions of judgments or orders and the like, are but corollaries of this general principle and seek to establish no other criteria than that the Court, and in particular the Court of Appeal should at all times be master of the situation and that at no state of the entire proceeding is one litigant allowed at the expense of the other or of the court to assume that role.”

In Vaswani’s case supra there was an order for possession, an appeal against that order, and an application for a stay which was refused. The High Court although it was well aware of the pending appeal, nonetheless granted the Order for possession.

An appeal against that order, and an application for a stay which was refused. It was in the circumstances such as these that this court made the observation I quoted above. In Vaswani’s case supra the grant of possession had the effect of rendering any Order on appeal nugatory even if the appellant won.”

 

The facts of ABUBAKAR V. UNIPETROL PLC (2002) 8 NWLR (PART 769) 242 which are very unique are contained on pages 249 E-F to 250 A-D where Kutigi JSC said:-

“Before delving into the issues, the brief, simple and undisputed facts of the case must first of all be stated. The 1st respondent/appellant had obtained judgment against the applicant/respondent at the Kano High Court on 11th March, 1996 in the sum of N1,275,259.20. The respondent appealed against the judgment on 3rd April, 1996. In the meantime the respondent deposited the judgment debt with the Chief Registrar of the High Court (the 4th respondent). He then filed an application for stay of execution and also to set aside the writ of execution filed by the appellant. On 6th May, 1996, the High Court granted the application in part to the effect that the appellant should provide a person of means to guarantee that he would pay the judgment debt should the respondent’s appeal succeed.

The respondent again dissatisfied with the ruling of the High Court then filed a motion in the Court of Appeal, for an order for variation of the order of the High Court. The application was filed on 7th May, 1991. All the respondents including the appellant herein, were aware of this motion at least by the 18th of May, 1996.

In spite of the fact that the application to vary the order of the trial High Court was pending before the Court of Appeal, and that all the parties were aware of the application, the 1st and 2rd respondents brought an ex-parte motion on 6th June, 1995 before the Trial High Court to release the money, Judgment debt, which was the subject matter of the application in the Court of Appeal to them. The trial Judge granted the motion and personally instructed the 4th respondent and ensured that the money was released to the 1st and 2nd respondents.
At the hearing of the motion in the Court of Appeal the record shows that learned counsel to the 1st and 2nd respondents conceded having received notice of respondent’s motion for variation on 18th May, 1996. The learned Director of Civil Litigation, Kano State, who appeared for the 3rd and 4th respondent’s also, said that the 3rd and 4th respondents although aware of the application, had no choice in the matter, because they were faced with the ex-parte order (exhibit C) of the trial Judge to release the money to the 1st respondent.

This in short were the facts and circumstances under which the Court of Appeal made the orders complained of above.”

 

On page 251 4 to 252 A KUTIGI JSC (later CJN Rtd) who read the lead Judgment held:-

“I believe the Court of Appeal was right. The action of the appellant in using an ex-parte order to obtain the release of the Judgment debt to him while the application to vary the High Court order in respect of the same Judgment debt was still pending the Court of Appeal was only intended to effectively render the Court of Appeal helpless and present it with a fait accompli. This must not be allowed to happen. In Vaswani Trading Com. V. Savalakh & Co (1972) 12 SC 77 this court set aside a writ of possession executed during the pendency for disposal of an application for a stay of execution.”

 

I agree with the learned counsel to the 4th, 6th – 10th Respondents, Fwomyon Esq. that the Defendants or Respondents in the three cases were fully aware of the pendency of the suits and applications therein before they took the illegal steps taken in those cases. I am also of the firm view that before a case could be said to apply the facts and the law decided upon in the case must be similar or an all fours with the situation in the case being adjudicated upon by the trial court. It is trite law that cases are decided on their peculiar facts and in the light of applicable law. See ALHAJI M.M. DINGYADI & ANOR V. INEC & ORS (2011) 10 NWLR (PART 1255) 347 AT 391 A-B per ADEKEYE JSC who said:-

“However, since the cases are decided on their peculiar facts in the light of the enabling statute there is no gainsaying that every case is an authority for the facts which it decides”

 

The same position was reiterated by Supreme Court in the case of PRINCE JOHN O EMEKA V. LADY MARGERY OKADIGBO & ORS (2012) 12 SCM 67 AT 95 per BODE RHODES-VIVOUR JSC who delivered the leading Judgment thus:-

“The position of the law is that a Judgment is authority for what it actually decides. See Yusuf V. Obasanjo (2004) 5 SC (pt 1) p. 27, 2004 5 SCM 152; Adegoke Motors Ltd V. Adesanjo (1989) NWLR PT 109 P. 250.”

See further OKOYE V. CPMB LTD (2008) 15 NWLR PART 1110 335 AT 361 H – 362 A-B Per NIKI TOBI, JSC.

 

I agree with the learned trial Judge that the facts in the aforementioned cases relied upon by the learned silk are not on all fours with the facts and circumstance of the suit here. The facts remained that at the time the motion on Notice was served on 4th, 6th, 7th, 8th, 9th and 10th Respondents the writ commencing this action was not yet issued from the Registry of the Court below. Most importantly the motion on Notice for Interlocutory Injunction was not served on the 1st, 2nd, 3rd and 5th Respondents until after the 16th day of January, 2010. The trial Judge could not have in the circumstances of the application before him relied on those authorities to accede to the requests in the motion dated 10th May, 2010 and filed the same date. See the case of: –

 

PRINCE JOHN OKECHUKWU EMEKA V. LADY MARCERY OKADIGBO & ORS (2012) 12 SCM 67 AT 96 A-B per BODE RHODES-VIVOUR JSC who said:-

“Facts have no views, A Judgment should always be read in the light of the facts on which the case was decided.

The rules of stare decisis do not allow courts to apply ration of a case across the board and with little regard to the facts, of the case before them. See Albion Construction Ltd V. Rao. Inc & Pro Ltd (1992) 1 NWLR pt 219 P 585.”

 

Consequently issue two is hereby resolved against the Appellants.

 

ISSUE 3

WHETHER THE ISSUANCE OF THE WRIT OF SUMMONS ON 18-01-2010 WAS IN ISSUE BEFORE THE LOWER COURT SO AS TO JUSTIFY THE QUESTION POSED BY THE LEARNED PRESIDING JUDGE IN THAT REGARD AS WELL AS HIS INTERPRETATION AND APPLICATION OF ORDER 5 RULE 1 OF THE RULES OF THE HIGH COURT OF PLATEAU STATE, 1988 (As Amended) RESULTING IN CONCLUSION THAT THE ACTION ONLY CAME ALIVE UPON THE ISSUANCE OF THE WRIT ON 18-01-10 TWO DAYS AFTER THE ACT SOUGHT TO BE RESTRAINED HAD BEEN COMPLETED THEREBY EXCUSING THE RESPONDENTS FROM BEING HELD ACCOUNTABLE FOR ANY ACT (Grounds 2, 3 and 4).

 

The Appellants in arguing this issue adopted their arguments on issues 1 and 2. The appellant argued that there was no dispute that the action of the Appellants was filed on 14th January 2010. That it was also not disputed that the motion or Interlocutory Injunction was also filed on 14/1/2010.

 

They also contended that the issue before the lower court for consideration was not on when the Writ of Summons was issued. The learned senior Counsel to the Appellants then referred to what the appellants believed was a wrong question posed by the trial Judge on page 294 – 295 of the Record and the answer given by the lower court.

 

The learned silk submitted that the finding of the learned trial Judge that issuance of a writ takes place upon its being signed by authorized Officer was wrong and has nothing to do with the issue before the court which according to appellants whether the Respondents were justified in purporting to have elected a new Galadiman on 16/1/2010 two days after the Application was filed and when several Respondents have been served.

 

That under the law the plaintiffs were only obliged to take their processes to the Registry and pay requisite filing fees. Reliance was placed on ORDER 1 Rules 1(2), (2); order 5 Rule 8 and Order 54 Rule 1(1) of the Plateau State Rules of Court. That the issuance of the writ is not within the competence of the litigants. He sought for definition of “pending” in Black’s Law Dictionary 6th Edition page 134 to contend that the case became “pending” at the court Registry upon payments of filing fees. He submitted that service of the specially indorsed writ of summons was not necessary precondition for proper consideration and determination of the motion on Notice dated 10th day of May, 2010 seeking to set aside the purported election. That the learned trial Judge instead of holding the Respondent accountable now excused them on ground that their act was not an affront to the court since it was carried out before the writ was issue. He relied on the admonition of this court in the case of MUOMA SAN V. HON. JUSTICE DENTON-WEST (2008) 6 NWLR (PART 1083) 418 AT 451 – 452– that it is important that no one is allowed to disrespect the Court of Law in whatever ramifications. He also cited BAKER V. CARR SUPREME COURT USA (1962) 369 US 186 per SAULAWA, JCA.

 

In conclusion the learned Senior Counsel relied on the case of KERENI v. ABRAHAM supra page 465 where SAULAWA JCA said:-

“The main purport and essence of the trite principle of lis pendens (pendent lite) is that parties to proceedings pending in court do any thing which may have the effect of rendering nugatory the ultimate judgment of the court therein”

 

He urged the, court to resolve all issues in favour of Appellants, allow the appeal and set aside part of the Ruling of the lower court delivered on 9th July 2010 dismissing Appellants’ motion dated and filed on 10th May 2010.

 

The Appellants complained under the issue 3 that the trial Judge was wrong in holding that a writ takes effect upon its being issued.

 

Now ORDER 5 RULE 15 of the Plateau State High Court provides:-

“OR 5 RULE 15 issue of a writ takes place upon its being signed by a Judge or an officer of the court duly authorized to sign the writ.”

 

Thus by Order 5 Rule 15 the trial Judge perfectly right when he said issuance of writ only that writ takes place upon its being issued. Appellants’ motion for Injunction can only take root in a writ of summons that was formally issued on 18th January, 2010. The issuance of a writ coupled with the imprint of the seal of court on the writ of summons makes it validly issued and becomes the fountain or the foundation of the action instituted.

 

The issuance of a writ authenticates it as emanating from the Registry of the court. It is true that in commencing an action the prospective plaintiff goes to the proper court for the filing of his writ and pays the necessary fees as assessed by the Registry of the court. It is also correct that it is the responsibility of the court officials or the Judge designated for the purpose to sign or issue the writ of summons. The fact remains that unless and until a writ is issued it will not acquire any validity that can command the appearance of a defendant in court. See OBIANWUNA OGBUANYINYA & ORS v. OBI OKUDO 1990) 4 NWLR (PART 146) 551 AT 559 where BELGORE JSC had this to say:-

“All a Plaintiff had to do was to apply for a writ of summons in accordance with Rule 2 Order 1 and pay the prescribed fee. This, the respondent did. Unless a writ of Summons was issued the other side could not appear for it is the writ that invites the defendant to court.”

 

Rule 16(1) of Order 5 of Plateau State High Court (Civil Procedure) is also relevant. It says:

“For the purpose of service, a writ (other than a concurrent writ) is valid in the first instance for twelve months beginning with the date of its issue, and concurrent writ is valid in the first instance for the period of validity of the original wait which is unexpired at the date of issue of the concurrent writ.”

The motion for Interlocutory injunction is intertwined with the issuance of the writ of summons because by order 33 Rule 3 of the Plateau State High Court Rules:-

“The Plaintiff may not make such application before the issue of the process by which the action is to be begun, except where the case is one of urgency, and in that case the injunction applied for may be granted on terms providing for the issue of the process and such other terms, if any, as the court thinks fit.”

 

A duty was cast on the Appellants to have taken extra steps under the Rules of Court so that the motion for interlocutory injunction could be urgently attended and the court registry or the Judge concerned would have seen the urgent need to issue the writ of summons immediately upon filing as no motion can be made without previous notice to the parties to be affected. See CIVIL PROCEDURE IN NIGERIA BY FIDELIS NWADIALO SAN OF BLESSED MEMORY (2000) page 228 where he said:-

“The next important step to be taken is to “issue” the writ, that is, to make it an official document emanating from the court. It is on being so issued that the writ acquired the legal force whereby a defendant is commanded by it to appear to answer the Plaintiff’s case”.

 

See also ORDER 8 RULE 7 (1) & (2) of the Plateau State High Court Rules which provide:-

“OR 8 R 7 (1)        No motion shall be made without previous notice to the Parties affected.

(2)     Notwithstanding paragraph (1) the court, if satisfied that to delay the motion till after notice is given to the parties affected would entail irreparable damage or serious mischief to the party moving, may make an order ex parte upon such terms as to costs or otherwise and subject to such undertakings if any, as the justice of the case demands.”

 

A community reading of the Rules already referred to glaringly show that without the issuance of the writ of summons the motion for Interlocutory Injunction could not be served or moved.

 

In any event the trial Judge could not have heard the motion for Interlocutory Injunction without evidence of proper service of the processes (i.e. Writ of Summons and the Motion for Interlocutory Injunction filed on 14-1-2010) on all the Respondents. See. DR N. E. OKOYE VS C.P. MERCHANT BANK LTD (2008) 15 NWLR (PART 1110) 335 AT 351 H per TABAI and page 356 F -G per NIKI TOBI JSC.

 

Therefore issue three is also hereby resolved against the Appellants.
In the end this Interlocutory appeal has no merit. It is hereby dismissed. The Ruling of the lower court dated and filed on 10th May, 2010 is hereby affirmed. The Respondents are entitled to costs. The 1st, 2nd, 3rd and 5th Respondents are awarded the costs of N30,000 against the Appellants and the 4th, 6th, 7th, 8th, 9th and 10th Respondents are also awarded costs assessed at N30,000.00.

 

 

OYEBISI FOLAYEMI OMOLEYE, J.C.A.:

I have had a preview of the leading judgment just delivered by my learned brother, Ige, JCA.

 

I agree with His Lordship’s line of reasoning and conclusion that this appeal is lacking in merit and ill-fated for dismissal. I also dismiss the appeal and abide by the consequential orders contained in the said leading judgment, including that for costs.

 

 

JUMMAI HANNATU SANKEY, J.C.A.:

I have had the advantage of reading, in draft, the Judgment of my learned brother, Ige, J.C.A., in this Appeal. I agree with it and, for the reasons he gives, I also dismiss the Appeal. I endorse the order as to costs.