3PLR – A-G ANAMBRA STATE V. ROBERT C. OKAFOR

POLICY, PRACTICE AND PUBLISHING,  LAW REPORTS – 3PLR

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A-G ANAMBRA STATE

V.

ROBERT C. OKAFOR

IN THE SUPREME COURT OF NIGERIA

APPEAL NO. SC. 172/1988

21ST FEBRUARY, 1992

3PLR/1992/8  (SC)

 

OTHER CITATIONS

1 NSCC 264

 

BEFORE THEIR LORDSHIPS  

UWAIS, J.S.C.

NNAEMEKA-AGU, J.S.C.

OLATAWURA, J.S.C.

OMO, J.S.C.

BABALAKIN, J.S.C.

 

BETWEEN

1. THE ATTORNEY-GENERAL AND COMMISSIONER FOR JUSTICE, ANAMBRA STATE
2. ANAMBRA STATE COMMISSIONER FOR LOCAL GOVERNMENT, RURAL DEVELOPMENT AND CHIEFTAINCY MATTERS
3. SOLE ADMINISTRATOR, AWKA LOCAL GOVERNMENT AREA, R.N. OKENVVA
4. OZO DR. S.E. ONEJEME 5. OZO A.C. NDIGWE

 

AND

1. ROBERT C. OKAFOR
2. OKAFOR EZE:KWEM
3. OZO ODILI OBIORAH
4. EZEANA NWOSU
5. CHIEF C. CHINWUKO
6. NNEBE AGUIAADU (Suing for themselves and on behalf of the Ozo’s, Ndichies and Ezeanas of Agulu and Amikwo Communities Awka)

 

REPRESENTATION

M.T.N. Onwugbufor, Director of Public Prosecutions, Anambra State, – for the appellants

F.R.A. Williams S.A.N., (with him, Messrs C.O. Anah, T.E. Williams, C.Z. Obuekwe, Mrs. J.N. Nwangwu) – for the respondents

 

MAIN ISSUES

ADMINISTRATION OF JUSTICE – Order and good government – Incidents of – Supervisory powers of the court – scope of

CUSTOMARY LAW – Chieftaincy -Sections 7 and 10 of the Traditional Rulers Law of Anambra State, 1981 – Constructions of – Recognition of a traditional ruler – Exercise of- When an action can lie against the exercise – Challenging recognition under section 10 – Procedure for – illegal recognition accorded a chief – Effect of court order thereon – Sections 6(6) (b) and 236 of the 1979 Constitution – Effect of

PRACTICE AND PROCEDURE – Judgments -Injunctions – Mandatory injunctions – Evolution of- Considerations applying to the grant of – Principle in Ojukwu’s case – Scope and applicability of – court granting a relief not asked for- propriety of-Incompetent order- Order, though erroneous, within the court’s jurisdiction – Distinction between – Courts.

PRACTICE AND PROCEDURE – Stay of execution – Import of – Whether operate to restore the unsuccessful party to his full rights – Successful party executing judgment when application for stay is pending – propriety of

PRACTICE AND PROCEDURE – Remedies -Injunction – Mandatory injunctions -Evolution of- Considerations applying to the grant of – Principle in Ojukwu’s case – Scope and applicability of –

PRACTICE AND PROCEDURE – Court granting a relief not asked far- Propriety of- Incompetent order-Order, though erroneous, within the court’s jurisdiction – Distinction between – Courts supervisory powers – Scope of Supervisory powers -Scope of – Interlocutory application -purport of – Whether would enure far act already carried out – interlocutory order – when terminable.

 

MAIN JUDGEMENT

OMO, J.S.C. (Delivering the Lead Judgment).

The defendants/appellants and the 4th and 5th respondents have been engaged in a tussle as to who has the right to select, install, and indeed present the traditional ruler of Awka (variously called the “Ichie,” “Eze Uzu” or the “Obi” of Awka). Whilst the 3rd defendant/appellant is involved in overseeing that process, the role of the 1st and 2nd appellants is mainly confined to the recognition or de-recognition of the person duly nominated, selected and presented to them for recognition, pursuant to the provisions of the Traditional Rulers Law, No.14 of 1981 of Anambra State.

 

It is admitted by all the parties concerned that the process of nomination to presentation was governed until disagreements arose by the 1976 chieftaincy Constitution for Awka Community. It is the contention of the plaintiffs/respondents that sometime in 1985 the 4th and 5th defendants/appellants “and their group” unilaterally amended that constitution, and proceeded to select, install and purported to present an “unpopular candidate” for recognition as the traditional ruler of Awka.

 

Incensed by this action the plaintiffs/respondents filed an action (suit No.AA/70/86) in the High Court of Anambra State (Awka Division) claiming:

 

“1.     A declaration that any constitution purported to be an amendment to the 1976 Chieftaincy Constitution for Awka Community and lodged with the Administrator for Awka or forwarded to the Anambra State Commissioner for Local Government, Rural Development and Chieftaincy Matters Enugu is null and void and of no effect;

2. A declaration that any action or decision based on the purported amendment of the Chieftaincy Constitution for Awka of 1976 is null and void and of no effect;

 

3. A declaration that the 4th defendant has no power either by custom tradition or any known law to act as the regent or Ichie of Awka and that the purported appointment of the 4th defendant as the regent or Ichie of Awka by the 3rd defendant or any other person or persons or body is null and void and is of no effect;

 

4. An injunction to restrain the 1st and 2nd defendants from acting on any decision based on the purported amendment of the 1976 Awka Constitution;

 

5. An injunction to restrain the 4th defendant from parading himself as the regent of Awka;

 

6. A further injunction to restrain the 5th defendant from presenting himself to the 1st and 2nd defendants as the person validly selected under the purported amended 1976 Awka Chieftaincy Constitution to represent the Awka Community.”

 

After the plaintiffs/respondents had filed their pleadings both the 1st to 3rd defendants/appellants and the 4th and 5th defendants/appellant thereafter separately filed motions in the same Division of the Anambra State High Court for an order of the High Court dismissing the action filed, on the ground that the plaintiffs/respondents had no locus standi to institute the action. The order sought was granted by the trial judge in a reserved judgment delivered on 15/12/86. On the same day the plaintiffs/respondents filed an appeal against the ruling to the Court of Appeal and a motion seeking a stay of execution of the judgment of the High Court appealed against. The stay sought was refused by the High Court in its considered ruling on 17/3/87.

 

On 6/2/87, before the High Court ruled on the application for a stay, the 1st to 3rd defendants/appellants, in exercise of their powers under Law No.14 of 1981 aforementioned, granted recognition to the 5th defendant/appellant as the Obi (Eze Uzu) of Awka is illegal, void and “is of no effect,” that the 5th defendant/appellant was not validly elected and an order of perpetual injunction restraining the 1st to 3rd defendants/appellants, their agents, servants, etc. from giving a certificate of recognition to the 5th defendant or “in any way treating him as the traditional ruler of Awka.” This action was transferred to the Awka Division for hearing.

 

As at the stage when the 1st to 3rd defendants/appellants recognised the 5th defendant/appellant as the Obi of Awka what was in the Courts by way of litigation was an appeal against the ruling/judgment that the plaintiffs/respondents had no locus standi to institute the original action (suit No.AA/70.86, the substantive action having been dismissed.

By another motion filed on 17/3/87 in the Court of Appeal (Enugu Division), and numbered CA/E/74M/87, the Court of Appeal (Enugu prayed for the following orders:

 

“(a)    a stay of the ruling/judgment or execution in the above narled suit pending the determination of the appeal.

 

(b)     an injunction to restrain the 1st and 2nd defendants/respondents, their servants/and or agents from acting on the said ruling to recognise the 5th defendant/respondent as the traditional ruler of Awka pending the determination of the appeal.”

 

On 2/12/87, nine months after, they followed this up with another application by way of motion filed in the same Division of the Court of Appeal and numbered CA/E/33/M/87 in which they now sought the Court’s order:

 

“setting aside and/or revoking the recognition granted to the 5th defendant Ozo A.C. Ndigwe as the Traditional Ruler of Awka while the issue touching and concerning the said recognition was still pending in Court.”

 

On 5/188, counsel for the 1st to 3rd defendants/appellants filed in the Court of Appeal a notice of preliminary objection against the hearing of the motion to set aside or revoke recognition of 5th defendant/appellant on the grounds that

 

“1.     The Court of Appeal has no jurisdiction to entertain by way of a motion a matter or issue which is not pending on appeal before the Court of Appeal but a matter pending at the High Court.

 

2. The Court of Appeal has no jurisdiction to determine by way of a motion a substantive issue or a matter which will be determined only on substantive appeal even where such a matter is pending on appeal before the Court of Appeal.

 

PARTICULARS

 

1. The same relief claimed in the Court of Appeal are pending in the Awka High Court in suit No.E/36/87 (copy of the writ is attached herewith) and suit No.E/36/87 is not subject of appeal before the Court of Appeal.

 

2. Suit No.AA/70/86 which is on appeal before the court does not contain any relief touching on the recognition or non-recognition of the 5th defendant.

 

This suit rather relates to the validity or otherwise of the Awka Chieftaincy Constitution.

 

Earlier on 18/12/87, counsel for the 4th and 5th defendants/appellants had filed a similar application objecting on the grounds that:

(a)     This court being a Court of Appeal has no jurisdiction to entertain their motion which seeks a primary order

 

(b)     Suit No.AA/70/86 which is on appeal before the court does not contain any relief touching on the recognition or non-recognition of the 5th defendant. This suit rather relates to the validity or otherwise of the Awka Chieftaincy Constitution.

 

Earlier on 18/12/87, counsel for the 4th and 5th defendants/appellants had filed a similar application objecting on the grounds that:-

 

(a)     This court being a Court of Appeal has no jurisdiction to entertain their motion which seeks a primary order.

 

(b)     The section of the Law and the rules under which the applicants have come do not support their application and the court has no jurisdiction to hear it.”

 

The Court of Appeal decided to hear both applications of the plaintiffs/respondents and the objection of counsel for the defendants/appellants together, and this it did on 19/1/88. On 29/2/88, the court delivered its considered ruling in which it held that the recognition of the 5th defendant/respondent is null and void and of no effect and proceeded to set it aside. It also made an order “restraining the 1st and 2nd respondent as the traditional ruler of Awka pending the determination of this appeal” (i.e. the appeal against the dismissal of the plaintiffs/respondents’ suit by the Awka High Court). It is against this decision of the Court of Appeal that the 1st to 3rd defendants/appellants (hereinafter called “appellants” only) have appealed to this court.

 

Six grounds of appeal filed and argued by the appellants are set out as follows:

 

1. The Court of Appeal erred in law in setting aside the recognition of the 5th defendant when the issue of recognition or non-recognition of the 5th defendant is not a “res” requiring protection in the substantive appeal before the Court of Appeal more so when the “res” or the claim touching on the recognition or non-recognition of the 5th defendant is pending at the Awka High Court and not yet on appeal before the court of Appeal.

 

2. The Court of Appeal erred in law in setting aside the recognition of the 5th defendant in an application by way of a motion when the court can only deal with the proprietary (six) or otherwise of a recognition of the 5th defendant by way of declaratory relief.

 

3. The Court of Appeal erred in law in setting aside the recognition of the 5th defendant when the power to suspend or withdraw the recognition is vested it the Governor pursuant to section 10 of the Traditional Rulers Law, 1981.
4. The Court of Appeal erred in law in making an order for interim injunction restraining the respondents from recognizing the 5th defendant when

 

(a)     the court has no power to make such order on interlocutory application except after a declaratory judgment has been pronounced.

 

(b)     the applicants did not satisfy the conditions required by law for the grant of such injunction.

 

5. The Court of Appeal erred in law in holding as follows – The act of the 1st and 2nd defendants/respondents in recognising the 5th defendant/respondent when they are aware an appeal is still pending and while application for stay of execution was pending before the lower court is null and void and of no effect whatsoever.”

 

The Court of Appeal erred in law when it held as follows:

 

“It is therefore my view that having regard to the nature of the substratum of this appeal and the grounds of appeal filed, the plaintiffs/ applicants should have been granted a stay of execution by the lower court. It does not matter how that relief was described. The clear intention was to protect the res in the action and suspend the rights of the respondents that would naturally flow from the dismissal of the plaintiffs/applicants rights.”

 

Five issues for determination were formulated from these grounds thus:

 

1. Whether the Court of Appeal can, pursuant to section 16 of the Court of Appeal Act 1976 and or Order 3 rule 23 of the Court of Appeal Rules or any other law or rule of Court set aside the recognition of the 5th defendant and grant an injunction restraining the 1 st-2nd defendants from recognising the 5th defendant when the issue of recognition or otherwise of the 5th defendant is not an issue before the Court of Appeal in the substantive appeal before the Court of Appeal and when the issue of recognition was subject of another suit pending in the lower court.

 

2. Whether, if the answer to (1) above is positive, the Court of Appeal can set aside a recognition which order is in the form of a declaratory relief and grant an injunction when the application before the court is by way of motion and does not relate to the substantive appeal before the Court of Appeal.

 

3. Whether the Court of Appeal can primarily exercise the powers of disrecognition conferred on the Governor by section 10 of the Traditional Rulers’ Law 1981 in view of sections 4, 5 and 6 of the Constitution of the Federal Republic of Nigeria 1979 which provided for separation of powers between the judiciary the Executive and the Legislature.
4. Whether the doctrine of lis pendens operates to nullify an act done during the pendency of a suit particularly when such act is intangible and incapable of changing the character and the nature of the res.

 

5. Whether the Court of Appeal was right in granting a stay of execution merely on the ground of the nature of substratum and the grounds of appeal when the plaintiffs/applicants did not disclose any special circum stances in their affidavit to warrant a stay of execution and no order positive or otherwise was made by the lower court.

 

The plaintiffs/respondents (hereinafter referred to as “respondents” simpliciter) also formulated five issues for determination differently as follows:

 

“(1)   When there are (sic) an appeal over a decision of the court and a motion for a stay of execution of the judgment appealed against whether a party to the appeal can take any step which will frustrate the hearing of both the appeal and the motion or foist upon the court a situation of complete helplessness.

 

(2)     If the answer in issue No. 1 is in the negative and the party takes the step whether the Court or the Court of Appeal in its inherent power can set aside the step so taken in order that the appeal may not be rendered nugatory or the jurisdiction of the court hampered in determining the motion before it.

 

Whether in invoking the powers of the Court under issue No.2 above the party aggrieved by the act should do so by a declaration action only or can come by way of a motion.

 

(4)     Whether the issue of the recognition of the 5th defendant by the 1st and 2nd defendants/appellants did not fall within the ambit of the plaintiffs’/respondents’ claims before the trial court and the Court of Appeal.

 

Whether the issue of who had the right to select and present the 5th defendant for recognition was not before the court and if the answer is in the affirmative whether that right is not a res even though intangible capable of being preserved by the court.

 

Only the 3rd and 5th issues raised by the appellants and the 5th issue raised by the respondents do not dovetail and will be therefore considered separately, if necessary. All the other issues can be disposed of by reference to the appellants’ formulation.

 

It is convenient to begin a consideration of the several issues raised in this appeal by disposing of the fifth issue formulated by the appellant. This is because although an application (CA/E/74M/87) for a stay of execution of the ruling/judgment of the Awka Division of the Anambra High Court in suit No.AA/70/86, was duly filed and argued at the Court of Appeal (Enugu Division), considered by it and commented upcn, no order of stay was in fact made by the court. The highest it went was to state in its ruling (vide p.104 of the records of proceedings) thus:

 

“It is therefore my view that having regard to the nature of the substratum of this appeal and the grounds of appeal filed, the plaintiffs/applicants should have been granted a stay of execution by the lower court. It does not matter how that relief was described. The clear intention was to protect the res in the action and suspend the rights of the respondents that would naturally flow from the dismissal of plaintiffs/applicants’ action.”

 

Thereafter, very much irked by the granting of recognition by the list to 3rd appellants it proceeded to consider same at length, concentrating thereby on the second motion fled before it – CA/E/331M/S7; and after castigating the 1st to 3rd appellants, made its orders at the end of its ruling on the issue of recognition (vide p.108 lines 6-11;,. On the attention of appellants’ counsel being drawn to this, in the course of his reply, he withdrew the appeal of his clients against a non-existent order. The many sub-issues canvassed by the Court of Appeal as to whether there was any action/order to stay before it, having regard to the dismissal by the High Court (Awka) of the respondents’ action on the ground that they have no locus standi to institute same, to wit, (a) whether special circumstances have been shown to justify the granting of stay of execution, (b) whether the res in the action will be destroyed by a refusal to grant a stay or (c) whether the substratum of the case on appeal before it is the same as that on the application for a stay before it and that a refusal of the application will “in consequence denude the action of its substance,” are therefore regrettably no longer necessary for a determination of this appeal, and will therefore not be considered in the judgment. Suffice it to observe that the well-known decisions of this court in Kigo (Nigeria) Ltd. v. Holman Bros (Nigeria) Ltd. & Ors (1980) 5/7 S.C.60; Sodeinde & Ors. v. Ahmadiya Movement in Islam (1980) 1/2 S.C. 163 (175); Vaswani Trading Co. v. Savalakh & Co. (1972) 12 S.C.77; Balogun v. Balogun (1969) 1 All N.L.R. 389; were fully canvassed.

 

What is left of appellants’ issues 1, 2, and 3 may now be succinctly reformulated to ask whether the Court of Appeal can make an order setting aside the recognition of the 5th appellant by the 1st to 3rd appellants in any circumstances or in the particular circumstances of this case. If it can do so in either event, whether it can be done on the basis of the motion before it and/or make the specific orders which it finally made.

 

It is conceded by appellants’ counsel that the courts can in exercise of their supervisory power, but only by way of a declaratory relief, declare a recognition granted by the Executive to any chief or traditional ruler as contrary to the law and/or otherwise void and of no effect. It is however the strong submission of appellants counsel has referred to the provision of the Traditional Rulers Law 1981 of Anambra State. Section 7 of that Law provides that:

 

“Where a traditional ruler of a town or community is presented to the Government under the provisions of “section 5 or section 6 of this Law the Government may, in accordance with the provisions of this Law, recognise such a person as a traditional ruler of the town or community.”

 

If, in exercise of its secondary/supervisory function, the Curt, on proper application made before it, declares the recognition void, the Law also gives the Executive the powers to carry out the order of the court and de-recognising (sic) such a traditional ruler under the provisions of section 10 of the aforementioned Law which states that:

 

“10.   Notwithstanding anything contained in this Law, the Government may suspend or withdraw the recognition of a recognised chief or traditional ruler if the Government is satisfied that such suspension or withdrawal is:

 

(a)     necessary having regard to ………………..

 

(b)     necessary in the interest of peace, order and good government.”

 

Order and good government demands that the declarations of the courts as to what the law is, should be carried out by the Executive, over which the superior courts of this country can exercise judicial powers having regard to the provisions of section 6 of the Constitution of the Federal Republic of Nigeria (Enactment) Act, 1979. In support of these submissions counsel has also cited and relied on Governor of Imo State v. Anosike (1987) 3 N.W.L. R. (part 666) 663 (671). So far so good.

 

It is however the further submission of appellants’ counsel that the courts cannot exercise any powers with respect to the withdrawing or revoking of recognition until after the Governor has exercised his powers under section 10 because this would mean the infringement of the powers of the Governor under the Constitution and lead to a conflict between the Judiciary and the Executive. At pages 21 and 22 of his brief appellants’ counsel concludes on his further submission thus:

 

“It is submitted that section 6(6) (b) and section 236 of the Constitution shall not come into effect until the Governor has exercise his power under section 10 of the Traditional Rulers Law 1981. For it is only by the exercise by the Governor of his power under section 10 that a dispute will wise conferring jurisdiction on the courts.

 

Since the Governor has not exercised his primary function of withdrawing revoking the recognition of the 5th defendant it is the appellant: contention that the Court of Appeal or indeed any court is without jurisdiction to interfere to revoke the recognition of the 5th defendant or to set it aside.” (Note: italics mine)

 

If by this submission appellants” counsel is saying that no action to declare an act of recognition by the Governor illegal can be taken in court until and after he has on his own suspended or de-recognised the traditional ruler recognised, then he is entirely mistaken. This is certainly not the position of the law. Once the Governor has exercised his executive powers of recognition under section 5 of the aforementioned law, any person who feels his rights are infringed thereby can take action In the High Court which in exercise of its jurisdiction under section 236 of the Constitution is empowered to entertain same. There Is nothing in the provisions of section 6(6)(b) and section 236 of the Constitution which prevents or delays the right to litigation UNTIL the Governor further exercises his undoubted prerogative to suspend or de-recognise under section 10. Section 6(6)(b) of the Constitution on which appellants’ counsel is relying specifically provides that:-

 

“6.     The judicial powers vested in accordance with the foregoing provisions of this section

 

(b)     shall extend to all matters between persons or between government or authority and any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person” (Note: italics mine)

 

I see nothing but a confirmation of the right of an aggrieved citizen to go to court against a fellow citizen and or government after his right has been infringed in this provision. It certainly does not justify any view that after having been aggrieved by a violation of his rights under section 5 of the Traditional Rulers Law, any person, assuming of course he has the necessary locus standi, cannot take his grievance to court until after the exercise by the Executive of its powers under section 10 of the afore-mentioned Law.

 

The authorities cited and relied on by appellants’ counsel, to wit, (a) Merchant Bank v. Federal Ministry of Finance (1961) All N.L.R. 598 and (b) James Egbuson v. Joseph Ikechukwu (1977) 6 S.C. 7 (34) do not support his submission. In those cases the courts were called upon to interfere with powers given exclusively to the Minister to be exercised after satisfying himself of certain conditions, before he had even exercised such powers. They in fact support the submission that there cannot be any challenge of the Governors action either under section 5 or section 10 of the Traditional Rulers Law 1981 of Anambra State until he has exercised his power I repeat that there is nothing to prevent a dissatisfied citizen from challenging that decision. The statement of Unsworth, F.J., in Merchant Bank Ltd. v. Federal Minister of Finance (supra) which counsel relied on, that

 

“In matters involving the exercise of statutory power the function of the courts begin only if and when it is alleged that the power has not been exercised in accordance with law” (Note italics ours) is fully satisfied in such circumstances. The courts in conclusion, can therefore in proper circumstances declare a recognition illegal after the Governor has exercised his primary powers of recognition. The Governor in the absence of a successful appeal against such a decision, will then be expected to exercise his power of de-recognition under section 10 of the law aforementioned without being called upon so to do. In Chief Eze Orisakwe v. Governor of Imo State & Ors. (1982)3 N.C.L.R. 743 relied on by appellant’s counsel, it was clearly decided that the power of the Governor to withdraw recognition is not absolute. Where it is exercised arbitrarily and without recourse to procedure provided by enabling statute, his exercise of power can be challenged. It was successfully challenged in that action and the withdrawal of recognition declared null and void and of no effect.”

 

An ancillary question for consideration here is whether, in any action challenging recognition, the plaintiff (s) should seek setting aside of recognition simpliciter or a declaratory order to the effect that the recognition is null and void. The better view seems to be that such a challenge should be made by way of declaratory action vide Chief Orisakwe v. Governor of Imo State and Ors. (supra); Governor of Imo State v. Anosike (supra); Onuzulike v. Nwokedi (1989)2 N.N.L.R. (part 101) 229 (236); Llwegba v. Attorney-General of Bendel State (1986)1 N.W.L.R. (part 16) 303 (304). Thereafter the Governor will be obliged in obedience to the courts order to de-recognise the traditional ruler where the challenge is successful.

 

I will now proceed to consider whether even if the Court of Appeal can make an order setting aside the recognition of the 5th appellant it can do so pursuant to an application by way of an interlocutory application. Furthermore, even if a motion is appropriate, whether the orders made by the Court of Appeal Eire proper. Normally an interlocutory application such as the one now being considered (CA/E/331M/S7), is made to maintain the status quo pending the determination of the substantive action (appeal). In the present case however the order sought is to set aside an action that has already taken place. It has been held many times by the courts that such interlocutory application (usually for grant of injunction) is not perceived as a proper remedy for an act which has already been carried out, and will not be granted where even the act complained of is irregular vide John Holt Nigeria Ltd. v. Holt African Workers Union (1963) 1 All N.L.R. 379; Uwegba v. Attorney-General of Bendel State (1986) 1 N.W.L.R. 303 (309-ratio 27); Governor of Imo State v. Anosike ii Ors. (1987) 4 N.W.L.R. (part 66) 663 (ratios 12 and 13). The last two cases are Chieftaincy matters where actions of the Executive de-recognitions were being challenged. The Courts refused interlocutory applications on the ground, inter alia, that the acts complained of have already been performed.

 

The reason however why the Court of Appeal in the instant case granted the application sought and made the orders complained of is that the 1st to 3rd appellant’s before the Court of Appeal considered the appeal filed against the decision of the High Court (Awka) on the issue of locus standi, recognized the 5th appellant as the Obi or traditional ruler of Awka. The Court of Appeal (per Oguntade, J.C.A.) expressed its displeasure in the following words:

 

“I am unable to agree that the respondents acted properly. They pulled the carpet from under the feet of the lower court by doing those very things which the applicants were praying the court at the time to restrain. By the same token, they sought to put this court into a position of helplessness so that even if we decide the appeal in favour of applicants, such decision will be rendered nugatory. They have sought to confront us with a faith accompli and usurp in addition the function of the court.” (Note: italics mine)

 

Whether the Court of Appeal was right in holding that the 1st to 3rd appellants put in a position of helplessness and/or whether the issue of recognition of 5th appellant was properly before it may be considered briefly, if necessary, later in this judgment. For the moment, the question that has to be answered is whether Motion No.CA/E/331M/87 could be properly entertained by the Court of Appeal. Appellant’s counsel has argued that it cannot because inter alia it raises a substantive issue which can only be considered by way of substantive action, and that the very issue being canvassed by the motion is the subject matter of a pending action in the High Court at Awka – Suit No.E/36/87. Counsel for the appellants did filed (sic) preliminary objections to that effect before the Court of Appeal as set out earlier. The main reason for this submission as to the need for a substantive action being, as canvassed earlier, that the power of sought to be set aside being primarily that of the Governor can only be properly controlled by way of seeking declaratory reliefs or by way of application for administrative review, to wit, applying for mandamus, certiorari or prohibition, as the case may be. An ordinary motion it is submitted is inappropriate for this purpose. The answer of the respondents in their brief is to recount the history of the contentions between the parties, and to submit that the Court of Appeal acted correctly the way it did because the appellants were trying to overreach the court by the 1st to 3rd respondents granting recognition to the 5th respondent, which it submitted (and the Court of Appeal agreed) was an issue before ft. Counsel cited in support the “Self-help” cases of Emeshie v. Abiose (1991) 2 N.WL.R. (part 172) 192 (200); Ojukwu v. Governor of Lagos State (supra), Vaswani v. Savalakh (1972) 12 S.C.77.

 

Counsel for the respondents, F.R.A. Williams, S.A.N., in oral argument before us, has submitted that the court has the power to undo an act which a party does, where there is pending before the court a prayer that such an act should not be done. This power covers not only real property but all matters, and is intended to uphold the rule of law. He cited and relied on Governor of Lagos State v. Ojukwu (1986) 1 N.W.L.R.621 (637 paragraphs G to H); Saraki v. Kotoye (1990) 4.N.W.L.R. (part 143) 144 (174 paragraph F and 185 paras F to H).

 

I entirely agree with respondents counsel that the Courts must jealously guard their powers to supervise and where necessary discipline the Executive if it errs. The courageous stand of the courts in the Ojukwu v. Governor of Lagos State case (supra) is what is expected of the courts. There is therefore no doubt whatsoever that in a proper case, where the other side is guilty of “executive lawlessness” or have acted in such a way as to put the Court of Appeal in a real “state of helplessness” or by its action rendered its decision nugatory,” it can grant a mandatory (but interlocutory injunction), even by way of a motion, to force the executive to retrace its steps vide Ojukwu’scase (supra). But is this a proper case? I do not think so for a number of reasons. Firstly, because the issue of recognition or non-recognition of the 5th defendant was not clearly before the Court of Appeal. The appeal before it dealt rather with whether there was locus standi in respect of an action concerning the validity or otherwise of the Awka Chieftaincy Constitution and at best the selection as opposed to recognition of the 5th respondent. But even if the issue could be deduced from the affidavits filed by the parties, as the Court of appeal seemed to have concluded, the Second reason why it should not have considered this application is that there was pending before a court of competent jurisdiction (the High Court at Awka), a suit (E/36/87) in which the issue of recognition of the 5th appellant was categorically challenged; and was not one to be deduced from the claims/pleadings/affidavits. The first head of claim in that action reads:

 

“A declaration that the purported recognition by the 1st defendant of the 5th defendant as the traditional ruler of or Eze Uzu or Obi of Awka is illegal, unconstitutional null and void, and of no effect.”

 

What is more, that action was filed ten months, before the motion it entertained was filed in the Court of Appeal. Counsel for the appellants (respondents in the application before it) drew the court’s attention to this action, yet it proceeded nonetheless to dispose of the subject matter of that pending action in a lower court on the basis of an interlocutory application brought before it. The court below by its action condemned what was in effect an abuse of process because the respondent here, with a substantive action in the High Court, should not have been allowed, without withdrawing that action, to litigate by way of a motion or otherwise, the same subject matter. If the court below in its anger at the action of the appellants permitted such action, it should not have forgotten that the pending case in the High Court, Awka, after being heard, may be the subject matter of an appeal to it, and that it should therefore not place itself in a position of judicial embarrassment. Finally, was the Court of Appeal really put in a position of helplessness by the action of the 1st to 3rd appellants? Whilst the Court frowns on attempts by parties to overreach it in the course of a pending action, the recognition of the 5th appellant cannot be said to have had that effect on the Court. As Jacks, J.C.A. correctly observed in Governor of Imo State v. Anosike (supra) in setting aside an interim order of injunction granted by the High Court to restrain a Chief recognised by the Government of Imo State from parading himself as or being recognised by the Government of Imo State and its agencies as traditional ruler of his autonomous community;

 

A-G. ANAMBRA STATE & ORS V. OKAFOR & ORS.    281

 

“Paragraphs 8 and 12 deposed to the effect that it is the turn of Umuanwawa who have selected and presented their candidate, One Mazi Abel H.O. Nwosu who is entitled to succeed to the stool.

 

It is clear therefore that if the respondent could establish the at over contentions at the trial the Military Governor may suspend or withdraw the recognition of the appellant by virtue of Section 10(a) of the relevant law. Recognition of traditional ruler by the Military is not a perishable commodity.”

He then proceeded to observe further in that case that pleadings having been ordered, the best course of action would be to accelerate the hearing of the suit. I entirely agree with him. The position in these chieftaincy cases is that if the person recognised is found to have been illegally or improperly recognised, the recognising party will have to withdraw such recognition, and with that action the installation is automatically set aside, unless the illegality attaches only to the act of recognition. Even if the final act of a presentation of a certificate of recognition. Even if the final act of a presentation of a certificate of recognition or a staff of office has been embarked upon, this must be withdrawn if the final judgment of the court so requires. Whilst the continued act of some members of the Executive in seeking to overreach the court must continue to be deplored in the strongest terms, the court must not declare itself into a state of helplessness when it has abundant armoury to decide the fray.

 

Respondents’ counsel has drawn the attention of this court to my ruling in Adetona v. Attorney-General of Ogun State and Ors. FCA/1/110/82, delivered on 21/8/83, in which I deprecated in strong terms the practice of governments and/or their agencies treating the court’s orders or injunctions with levity (if not outright contempt). There was before the Court of Appeal on that occasion, an application to set aside “the purported deposition of the plaintiff -the Awujale of Ijebu Ode by order of the Governor of Ogun state,” which order was made after submission of the Report of a Commission of Inquiry which the Court of Appeal had ordered to stop further proceedings and not to submit any report to the Governor pending the determination of the application for interim injunction. All these and other actions taken to prevent the Governor acting arbitrarily notwithstanding, he proceeded to receive the report and immediately announced the deposition of the Awujale. These facts and my chastisement notwithstanding, I stated thus

 

“in the present case, I do not think any useful purpose will be Served by setting aside any actions of a State Government which has already been carried out, where these do not dispose of the matter. A different situation may have arisen has a new Awujale been appointed. I wish to emphasis that this court will not hesitate to set aside any offending order in an appropriate case.”

 

Similarly in this case, since the order sought does not dispose of the matter, and for the other reasons set out by me earlier, I am of the view that the issue of recognition should not have been decided on the basis of the interlocutory application entertained by the court below.

 

The most serious fault however in the proceedings of the Court of Appeal are the orders that it finally made.

 

They are set out in full thus:

 

“The act of 1st and 2nd defendants/respondents in recognizing the 5th defendant/respondent when they are aware an appeal is still pending and while application for stay of execution was pending before the lamer courts is null and void and of no effect whatsoever. I ought to set aside the recognition. It is accordingly set aside.

 

I also make an order restraining the 1st and 2nd respondents, their servants and or agents from recognising the 5th defendant/respondent as the traditional ruler of Awka pending the determination of this appeal.”

 

Appellants counsel has submitted that the court’s order setting aside the order of recognition is a final order, when the application before it was interlocutory. As counsel has rightly pointed out, the order remains valid unless set aside on appeal and continues to subsist even after the appeal in the course of which it was filed and argued has been determined vide Okafor v. Attorney-General of Anambra State (1991) 6 N.W.L.R.(part 200) 659 (679). What is more serious, this order persist even though the appeal in question was disposed of, according to appellants counsel, on 11/z~/88. The law is that every interlocutory order must terminate with the determination of the substantive case or appeal vide Adefulu v. Oyesile (1989) 5 N.W.L.R. (part 122) 377 (407). The making of an order in an Interlocutory application which persists beyond the substantive case is a grave error in law which cannot be allowed to continue. This appeal must succeed therefore on this issue.

 

The appellants having succeeded on most of the issues determined, this appeal hereby succeeds. The ruling of the Court of Appeal appealed against, including its order setting aside the recognition accorded the 5th appellant, is hereby set aside.

 

The appellants are entitled to the costs of which I assess at N1,000.00 only.

 

UWAIS, J.S.C. I have had the opportunity of reading in draft the judgment read by my learned brother, Uche Omo, J.S.C. The Court of Appeal acted in a rash manner in dealing with the issue of recognition granted by the 1st, 2nd and 3rd appellants to the 5th appellant as the Obi of Awka, since the issue was not properly before the Court of Appeal. I, therefore agree with the aforesaid judgment and I too will allow the appeal and set aside the ruling of the Court of appeal in its entirety with N1,000.00 costs to the appellants.

 

NNAEMEKA-AGU, J.S.C. This is an appeal by the defendants against the judgment of the Court of Appeal, Enugu Division in this suit. The claims in an Awka High Court in suit No.AA/70386 was for various declaratory reliefs relating to the amendment of, and any actions based on the “purported amendment” of, the Awka Chieftaincy Constitution of 1976. It further claims for injunction restraining the 1st and 2nd defendants from acting on any “purported amendment” of the said constitution and also restraining the 4th defendant from parading himself as the regent of the Ichie of Awka and the 5th defendant from presenting himself to the 1st and 2nd defendants as the person validly selected under the purported amendment to the said constitution. After filing the statement of claim, the 4th and 5th defendants applied under order 29 rule 1 of the High Court Rules of Eastern Nigeria applicable in Anambra State, for the suit to be summarily dismissed because, the plaintiffs have no locus standi, the pleadings does not disclose any justiciable issue and the statement of claim is fishing (sic) and an abuse of the process of the court.

 

After listening to the arguments of counsel on both sides and considering the pleading in the statement of claim, the learned trial judge, Obiesie, J. held that the plaintiffs had not disclosed any right personal to themselves that had been infringed or threatened with infringement, and so had not shown that they had a locus standi entitling them to sue. There was no lis between the parties, he concluded. So, he dismissed the action on 15/12/86.

 

The plaintiffs appealed to the Court of Appeal. While the appeal was pending the 1st and 2nd defendants went ahead and recognised the 5th defendant. Then on 17/12/86 the defendants filed a motion for

 

(a)     a stay of execution of the High Court judgment; and

 

(b)     an injunction restraining the 1st and 2nd defendants from acting on the ruling or to recognise the 5th defendant/respondent.

 

The learned trial judge in his reserved ruling dated 17th day of March, 1987, dismissed the application.

 

Before this ruling, a rather parallel suit (E/36/87) had been filed on the 23rd of February, 1987, in Enugu, in another judicial division of the same State seeking a declaration that the recognition of the 5th defendant by the 1st and 2nd defendants was unconstitutional, null and void, that the 5th defendant was not duly and validly selected; and also for an injunction restraining the 1st and 2nd defendants from presenting him with a certificate of recognition. It is noteworthy that this Substantive suit was still pending between the same parties at the time the Court of Appeal made the order the subject of this appeal. Indeed, before the Court of Appeal made the order, the subject of this appeal, the learned counsel for the 1st to 3rd defendants on 5/1/88 filed in that court a preliminary objection in the following terms:

 

“NOTICE OF PRELIMINARY OBJECTION BY THE IST-3RD DEFENDANTS

 

“TAKE NOTICE that the 1st – 3rd defendants/respondents will object in limine against the hearing of this motion.

 

And further take notice that the grounds of objection are as follows:

 

1. The Court of Appeal has no jurisdiction to entertain by way of a motion a matter or issue which is not pending on appeal before the Court of Appeal but a matter pending at the High Court which has not been determined by the High Court.

 

2. The Court of Appeal has no jurisdiction to determine byway of a motion a substantive issue or a matter which will be determined only on substantive issue or matter which will be determined only on substantive appeal even where such a matter is pending on appeal before the Court of Appeal.

PARTICULARS

 

1. The same relief claimed in the Court of Appeal are pending in the Awka High Court in suit No.E/36/87 (Copy of the Writ is attached herewith) and suit No.E/36/87 is not subject of appeal before the Court of Appeal.

 

2. Suit No.AA/70/86 which is on appeal before the court does not contain any relief touching on the recognition or non-recognition of the 5th defendant. This suit rather relates to the validity or otherwise of the Awka Chieftaincy Constitution. M.T.N. ONWUGBUFOR Counsel to the 1st – 3rd defendants, Ministry of Local Government Rural Development and Chieftaincy Matters, Enugu.”

 

Thus the pendency of the parallel suit dealing with the recognition of the 5th defendant as a substantive issue was duly brought to the notice of the Court of Appeal, they reasoned thus:

 

“Notwithstanding that plaintiffs/applicants had filed notice of appeal and brought an application for stay of execution which was not disposed of until 17/3/87, and in spite of the letter referred to above which was sent to the Military Governor of Anambra State, the 1st and 2nd respondents by letter dated 6th February, 1987 purported to recognise the 5th defendant/ respondent as the traditional ru er of Awka.”

 

I must pause here to make some observations, as it does appear to me that herein lie some assumptions, in my respectful opinion, erroneous, which led to the wrong decision of the Court of Appeal in the appeal under consideration. It is manifest that tho learned justices of Appeal were influenced by the fact that once an appeal had been filed against the order dismissing the plaintiffs’ case, the defendants should not have gone ahead with the act of recognition of the 5th appellant. This assumption, in my view, has ignored the fact that by provisions of statute, to wit: section 18 of the Court of Appeal Act, 1976, an appeal shall not operate as a stay of execution – a provision that was probably an offspring of the maxim: interest republica ut finis litium (it is the public interest that there be an end to litigation). Once a party has had a final judgment entered in his favour, the law presumes the judgment to be correct until it is set aside in an appeal. The correct way to stay the hand of the court or the party is by an order of stay of execution. The Court of Appeal, however, rightly I hold, pointed out that by the decision of this court in Vaswani Trading Company v. Savalakh & Co. (1972) 12 S.C.77, at p.85, this court made it clear that although an appeal does not operate as a stay of execution within the meaning of a section of the Supreme Court Act in pari materia with section 18 of the Court of Appeal Act (supra), it is an abuse of process for a respondent who knows that an appeal has been filed against a judgment in his favour and that a motion for stay of execution thereof is pending, to go ahead and execute the judgment until the motion for a stay of execution has been disposed of.

So, far, the above is a correct statement of the law. But the question is: does the fact that the act was an abuse of process entitle the court below to order a reversal of the step taken on the nature of the proceedings before the court and on the facts and circumstances of this case? Learned and respected Senior Advocate submitted that on the authority of Governor of Lagos State v. Ojukwu (1986) 1 N.WL.R. 621, at p.637, once there is a suit and an application pending against a party in a court of law, his right to self help or to do anything that may prejudice the decision of the court one way or the other ought not to be tolerated. The courts ought to protect their authority, he submitted.

 

In my respectful opinion, this submission, though correct on general principle, does not quite meet the peculiar problems in the instant case. It only stays action or execution. For one thing, in Ojukwu’s case the rights of the parties had not been adjudicated upon by any court. In the instant case the High Court had already dismissed the plaintiffs’ action. In the circumstances, I am of the view that the principle in Ojuukwu’s case (supra) cannot be applied hook, line, and sinker to a case where there is already a final and subsisting judgment. To do so will be contrary to principle in that it will have the effect of depriving a successful litigant of the fruits of a judgment in his favour. It is my view that the only way to give proper meaning to the provisions of section 18 of the Court of Appeal Act, 1976, and this court’s decision in Vaswani’s case (supra) is to hold that if the unsuccessful party files an appeal followed by an application for stay of execution, it is an abuse of process for the successful party to go ahead to execute the judgment during the pendency of the application for a stay of execution. If he should do so, the unsuccessful party could take any proper proceedings for dealing with the abuse of process. In this case, the defendants were probably within their rights when they decided to attack the recognition of the 5th defendant, in the circumstances I have stated by another action, to wit; suit No.E/36/87. They can then rely on the abuse of process as part of their case. This is a different thing from saying that on merely filing the appeal and the application for a stay of execution, the Court of Appeal would be entitled to set aside the recognition or declare it invalid.

 

The procedure upheld by the Court of Appeal in this case brings into focus the evolution of equity jurisprudence in the development of injunctions. Originally, all injunctions were negative in form and restrictive in content. see Smith v. Smith (1875) 20 Eq. 500, p.504. Mandatory injunctions, which were positive in form were complete new comers in the concept of injunctions, and did not really get issued until late 19th century to deal with such a situation as where a defendant had surreptitiously put up a building during the pendency of a suit claiming an injunction in order to steal a match on his adversary. In Daniel v. Ferguson (1891) 2 Ch.27, he was ordered to pull down the structure. See also Mathias v. Davies (1970) 114 S.J.268. But since their evolution, courts have always been and are still, reluctant to issue orders for mandatory injunctions except in very clear cases. They have always required the clearest evidence as well as very high standard of proof so as to make sure that at the trial it will still appear that the order of mandatory injunction was rightly made, as grave consequences could follow such an order. In practice, therefore, there must be either a trial of a claim for mandatory injunction or at least a substantive prayer in an application for it in clear terms, followed by irrefutable evidence of the infringement that entitles the applicant to the order. It is helpful to refer to the opinion of Megarry, J., in Shepherd Homes.’ td. v. Sandham (1971) 1 Ch.340, at p.351 where he quoted with approval the ratio of Buckley, J., Carrington v. Simons & Co Ltd. (1970) 1 W.L.R.725, at p.730, where he stated:

 

“Different considerations may, I think, arise in a case where the court has to consider whether a defendant should be compelled by a mandatory order to remedy a breach of contract which he has committed from those which would arise if the question were whether the court should restrain a threatened breach of contract. To the later case the principle enunciated by Lord Cairns, L.C., in Doherty v. Allman, 3 App. Cas 709, 710, 720, may apply in its full vigour. Where a mandatory order is sought the court must consider whether in the circumstances as they exist after the breach a mandatory order, and, if so, what kind of mandatory order, will produce a fair result. In this connection the court must, in my judgment, take into consideration amongst other relevant circumstances the benefit which the order will confer on the plaintiff and the detriment which it will cause the defendant. A plaintiff should not, of course, be deprived of relief to which he is justly entitled merely because it would be disadvantageous to the defendant. On the other hand, he should not be permitted to insist on a form of relief which will confer no appreciable benefit on himself and will be materially detrimental to the defendant.”

 

In the instant case, the respondents in their application merely filed a motion for a stay of execution and for an interlocutory injunction. There was no prayer for a mandatory injunction. So, there was no room for a consideration whether the above principle applied and whether on the quality of the evidence the applicants were entitled to it. Clearly it was an order not prayed for and, so which ought not to have been made.

 

I must emphasize the fact that although a mandatory injunction is sometimes classified as an interlocutory order of injunction in that it may be granted upon an interlocutory application, it is a different type of in junction, with its own features, and requiring a consideration of its own distinct principles. It is noteworthy in this respect that it is usually targeted upon a completed act and the order therefore may be made, for an example, to order a building which had been erected to be pulled down if it is established that the defendant erected it stealthily in order to steal a match on the plaintiff on having noticed that an injunction was to be taken out against him See Daniel v. Ferguson (1891) 2 Ch.27; also Van Joel v. Hornsey (1895) 2 Ch. 774, C.A. An order of interlocutory injunction is, on the other hand, negative and restrictive in nature and, so, is made to preserve the res pending litigation or to prevent a breach. Also there is difference in the quality of evidence necessary to entitle an applicant to relief in the two types of injunctions. In an application for an interlocutory injunction, all that the applicant needs to show are that there is a serious issue to be tried, that the balance of convenience is on his side, that his Injury, If the defendant is not restrained, cannot be adequately compensated with damages and that he is ready to enter into an undertaking as to damages: See Obeya Memorial Hospital v. Attorney-General of the Federation (1987) 1 l (PART 98) 383. But in an application for a mandatory injunction, the courts have usually shown more reluctance to make the order. See Blakemore v. The Glamorganshire Canal Navigation (1832) 1 My. & K 155. Before it is granted, the courts require a higher degree of assurance that at the trial it would still appear that the order of mandatory injunction was rightly made:

 

Furthermore, the court must consider the fairness of the order, bearing in mind the fact that such an order is usually irreversible. A house pulled down cannot be easily rebuilt, for example. In this case, the learned justices of Appeal, faced as they were with an application for a stay of execution and for an order of interlocutory injunction without adverting to the higher standard of proof required of the applicant if he wanted what was in essence a mandatory order. This was in error, as a mandatory injunction was neither claimed in any action before the court, nor applied for in the application and there was not the type and quality of evidence required to support an order therefore. It was therefore not properly considered and was wrongly granted.

 

Learned Senior advocate for the respondents sought to justify the grant of the order by invoking the principle in the case of Governor of Lagos State v. Ojukwu (1986) 1 N.W.L.R. 621 at p. 637. He submitted that the principle is not limited to land cases and is applicable in this case. In his submission, the recognition of the 5th defendant during the pendency of the appeal and an application for injunction smacked of executive lawlessness. So, the Court of Appeal was right to have set aside the recognition.

 

Learned counsel for the appellant, on the other hand, pointed out that the order made was final in nature and determined the issue in the pending suit (E/36/87), whereas the issue in the suit appealed from i.e. AA/70/86 does not raise the question of the recognition of the 5th defendant at all. The order made was in breach of the doctrine of lis pendens, he submitted.

 

I wish to state that I agree with the learned Senior Advocate for the respondents that the principle in Ojukwu’s case (supra) is not limited to land cases or dispute over property. Cases in which the principle has been applied in the United State show affirmatively that it is not so limited. See J. Edward Jones v. Securities & Exchange Commission 80 L.Ed.298 U.S. 1-33 and Turney v. Shriver 269111.164, 172, 109 N.E.708; All that the principle comes to is this: in a country where the rule of law is the vogue and both sides to a dispute decide and turn their dispute over to the courts, then while the suit is pending and the defendant has been notified of the pendency of the suit and an application seeking an injunction against him, he acts at his peril and subject to the power of the court to restore the status quo ante, if he takes any step with respect to the subject-matter in litigation which tends to show that he has resorted to extra-judicial self-help or is intent upon stealing a match on his adversary. I believe the principle is broad enough to encompass cases other than those relating to property but relating to other rights. I do not see why it could not have applied to the present dispute over a chieftaincy stool, if all the steps and proceedings had been duly taken, subject, of course to the fact that in this case the respondents had a final judgment in their favour. But, as I have shown, the order was made in suit No.AA/70/86 in which the only injunction against the 1st and 2nd defendants sought to restrain them from acting in accordance with the amended constitution. There was no prayer restraining them from recognizing the 5th defendant. The case in suit No.AA/70/86 had terminated in favour of the defendants. The motion filed by the 4th to 6th plaintiffs in the Court of Appeal was one praying for stay of the ruling and for:

 

“(b)    An injunction to restrain the 1st and 2nd defendants/respondents, their servants and/or agents from acting on the said ruling to recognise the 5th defendant/respondent as the traditional ruler of Awka.

 

This motion, as the learned counsel for the appellants has pointed out, rightly in my view, was an original motion. By no stretch of the imagination could it be said to be interlocutory. In the case of Chief Imam Shodeinde & Ors. v. Registered Trustees of the Ahmadiyya Movement-in-Islam & Ors. (19 BO) 1-2 S. C.163, this court made it clear that an application by unsuccessful plaintiffs to restrain successful defendants from dealing with property in dispute pending the determination of the plaintiffs’ appeal was wrongly made in the first instance to the Federal Court of Appeal instead of the High Court. The Court of Appeal had no jurisdiction to hear and determine such an application, as the proper forum for such an original motion was the High Court. I feel entitled to take notice of the fact that the jurisdiction of the Court of Appeal is entirely appellate (see section 219 of the 1979 Constitution). So, there was really no valid proceeding for injunction before the Court of Appeal at the time the mandatory order of injunction was made. There is a distinction in principle between an order or judgment which a court is not competent to make and an order or judgment which even if erroneous in point or in fact is within the court’s jurisdiction and competence. Where there is no jurisdiction the decision is void. But where the decision is merely erroneous, the point is a matter for appeal. Where a proceeding is incompetent or without jurisdiction or a judgment or order is void for want of jurisdiction no right can be hoisted on it. Indeed any court before the judgment or proceeding is produced can take notice of its nullity: Timitimi & Ors v. Amabebe & Anor (1953) 14 WA.C.A. 374, although, as cautioned by Denning, L.J., in Mcfoy v. U.A.C. Ltd. (1963) 3 W.L.R. 1405 at p.1409, it is often better, at least ex abundantia cautela to apply to the court to have a void judgment or order set aside. Additionally, as I have said, there was neither a claim nor an application for the mandatory relief. So, no matter how one looks at it, there is no room for an invocation of the principle in Ojukwu’s case (supra).

 

The last point I wish to comment upon is in relation to the order of the Court of Appeal setting aside the recognition of the 5th defendants while a substantive claim for that relief was pending in the High Court as suit No.E/36/87. That fact was brought to the notice of the Court of Appeal before the order was made. This cuts at the very roots of our appellate system. Every appellate court is a creature of statute. In the case of the Court of Appeal, It Is a creature of the Constitution which prescribes and circumscribes its jurisdiction and powers (see sections 219 to 225 of tile 1979 constitution). In sum, it can only adjudicate or make orders over causes and matters and issues in any particular case which have been decided by the courts and tribunals from which appeals lie to the Court of Appeal. It has absolutely no powers to make any orders or pronouncements over other matters and issues outside the issues on the causes and matters and Issues outside the issues on the causes or matters which have been decided upon by those lower courts or tribunals in any particular case. In the instant cease, there was no lis between the parties on the recognition of the 5th defendant by the tat and 2nd defendants. That issue was not raised in suit No.AA/70/86 but was still pending in another suit (E/36/87). With respect, the manner whereby the Court of Appeal in the order under appeal took away the jurisdiction of the High Court in suit No.E/36/87 while adjudicating in an appeal in suit No.AA/70/86 and made a final order on the matter still pending before the High Court is unconstitutional, absolutely void and of no effect. May the day never come when the Court of Appeal is vested with such wide powers that it can validly act like a universal Ombudsman and fish out and pronounce upon and make orders on issues not properly raised before it, no matter how wrong the matter might appear to be. Fortunately, in our present appellate system that day may never arrive. The order revoking the recognition of the 5th defendant was without jurisdiction and invalid.

 

For the above reasons and the fuller reasons contained in the lead judgment of my learned brother, Uche Omo, J.S.C., with which I agree I allow the appeal and subscribe to the orders made in the lead judgment.

 

OLATAWURA, J.S.C. I had a preview of the judgment of my learned brother, Uche Omo, J.S.C. just delivered; I agree with his reasoning and conclusions. The gist of the appellant counsel’s submission in this appeal is that the lower court had gone too far in the order made which will virtually tie the hands of the court of trial in the case still pending in Awka High Court (i.e. Suit No.E/36/87). In any interlocutory application or interlocutory appeal there must be a cautious approach to the order being sought or already granted so that when the substantive case or appeal is heard the court is not placed in an invidious position whereby It will undermine an existing order not limited in its scope and operation. Where a case is pending in court any arm of the Executive is a party, the effect of any decision made during the pendency of such action by the Executive must be such that will not ridicule the courts’ decision. It is also for this reason that respect be accorded the separation of powers in our Constitution. No arm of a democratic governments should take over or usurp the functions of the other arms of government. Apart from mutual respect due to each arm, It i s unwise to disregard the Constitution more so when the result of such disregard may lead to a social disorder.

 

Interlocutory order pending the determination of a suit or an appeal must relate to the issue before the court of trial or the appeal yet to be heard. It is wrong in law to stay an action not before the court. The order so made hangs in the air. The basis of the order sought is to prevent the other side from pursuing the action contemplated by the relief sought. I therefore agree with the lower court (per Oguntade, J.C.A.) when it properly observed thus:

“In determining whether or not the recognition accorded to the 5th respondent by the 1st and 2nd respondent ought to be allowed to stand, the necessary starting point is a critical examination of the claims which the plaintiffs/applicants submitted to the court for adjudication.”

 

If one considers claim 6 to wit:

 

“A further injunction to restrain the 5th defendant from presenting himself to the 1st and 2nd defendants as the person validly selected under the purported amended 1976 Awka Chieftaincy Constitution to represent the Awka Community.”

 

The respondents to this appeal anticipated a situation where there might have been an action based on a purported amendment. It is when the court has ruled that such an appointment has been made that the court can stay the action. That issue is still to be decided. It is therefore premature in my view at that stage of the application to interfere.

 

A plaintiff without a cause of action cannot by any ingenuity sustain the action. The facts relied on must of necessity be facts which relate to the claim or relief. The cause of action is the foundation for the writ issued. If there is none the action must fail.

 

A careful reading of section 16 of the Court of Appeal Act which deals with general powers of the court is only limited to the claims or reliefs before the court of trial, otherwise, the court will then be tempted to grant a relief not claimed. Section 16 of the Court of Appeal Act offers no sanctuary for a writ which discloses no cause of action. Chief Williams has submitted that when an application is pending, the court has power to set aside what the respondent has done and relied on Government of Lagos State v. Ojukwu (1986) 1 N.W.L.R. (part 18) 621/637 lines G.H and that it applies to all cases. I understand Ojukwu’s case to be applicable where there is a relief claimed. The ruling of the court in respect of a stay of execution is to ensure that any application in respect of a stay must relate to the claims. It is for this reason that a plaintiff filing a writ must show positively and not by implication the reliefs. It is not in dispute that no litigant has the power to frustrate the court. Although Chief Williams submitted that what the lower court did was an exercise of discretion in making the order, I don’t think the order made was based on exercise of discretion. Even if it was a discretion; it was not exercised judiciously. The order made by the lower court appears to me too wide and intact it is nothing short of a final order in respect of a matter still pending in another court. The lower court in its ruling (per Oguntade, J.C.A.) said:

 

“The act of 1st and 2nd defendants/respondents in recognising the 5th defendant/respondent when they are aware an appeal is still pending and while application for stay of execution was pending before the lower court is null and void and of no effect whatsoever. I ought to set aside the recognition. It is accordingly set aside.”

This certainly cannot arise in an interlocutory application. There is nothing more to decide, more so in another pending action: Suit No.E,136/87 Ozo Odili Obiorah & Ors. v. Governor Anambra State & 4 Ors. different from the one now on appeal before us; the claims in the pending action are for:

 

1. A declaration that the purported recognition by the 1st defendant of the 5th defendant as traditional ruler or Eze Uzu or Obi of Awka is illegal, unconstitutional, null and void, and is of no effect.

 

2. A further declaration that the 5th defendant was no validly selected in accordance with the town’s Chieftaincy Constitution and the recognition based on this invalid selection is illegal, null and void and is of no effect.

 

3. A perpetual injunction restraining the 1st defendant, his servants, agents, and/or privies including the 2nd, 3rd and 4th defendants, who advise the 1st defendant, from giving to the 5th defendant a certificate of recognition or in any manner whatsoever treating the 5th defendant as the traditional ruler or Eze Uzu or Obi of Awka.”

 

The order made by the lower court amounts to a judgment by an appellate court in respect of a matter yet to be heard by the trial court.

 

It is for these reasons and the fuller reasons given by my learned brother, Uche Omo, J.S.C. that I will also allow the appeal, set aside the ruling of the lower court to the effect that the recognition accorded the 5th appellant is null and void. l abide by the order for costs in favour of the appellants.

 

BABALAKIN, J.S.C. I have had a preview of the judgment just delivered by my learned brother Omo, J.S.C. I agree with the reasoning and conclusions reached in the judgment.

 

The judgment has extensively and effectively treated all the relevant issues for determination raised in the appeal.

 

I too allow the appeal. I set aside the ruling of the Court of appeal appealed against, including its order setting aside the recognition accorded the 5th appellant, is hereby set aside.

 

I award N1,000.00 costs in favour of the appellants.

 

Appeal allowed.