HELD:

(1)     In the light of previous Supreme Court decisions, the trial was a nullity as the High Court of the East Central State was devoid of power to take over and complete proceedings in a case commenced, illegally, in a court not known to the Constitution of Nigeria; and

(2)     As the whole suit was a nullity the Court cannot make any order to salvage any part of the proceedings.

Uttah v. Independence Brewery Ltd. (now Golden Guinea Breweries Ltd.) (1974) 2. S.C. 7; (1974) 1 ALL N.L.R. (Part 1) 397.

Okwuosa v. Okwuosa (1974) 2 S.C. 13; (1974) 1 ALL N.L.R. (Part 1) 497.

Ike & Ors. v. Nzekwe and ors. (1975) 2 S.C. 1; (1975) 1 ALL N.L.R. (Part 1) 17.

Ifegbu & Ors. v. Ukaefu & Ors. (1971) 1 E.C.S.L.R. 184.

Appeal allowed.

E.A. Molajo for the appellant.

Respondent absent and unrepresented.

Nasir, J.S.C. (delivering the judgment of the Court)-This is an appeal from the judgment of Egbuna J. sitting at the Onitsha High Court given on the 22nd October, 1971. When the appeal came up for hearing on the 17th November, 1975, the case was adjourned to enable service of the motion on notice filed by the appellants to be made on the respondents. On the 13th January, 1976, when the appeal came up again for hearing, learned Counsel for the appellants, Mr Molajo, was in court. Neither the respondents nor their counsel were in court. There was proof of service of the hearing notice on the respondents' solicitor and on the respondents. This court therefore allowed learned Counsel for the appellants to move his motion on notice which was.

"(a) To substitute Enesha Nzonwanne for Anicho Nzonwanne who died on the 11th July, 1974.

(b)     To file additional grounds of appeal as per attached.

The said additional ground of appeal read as follows:-

"(1)    The proceedings are a nullity because the action was commenced by a writ of summons not issuing from the High Court of any territory in Nigeria but from the High Court of the Republic of "BIAFRA" and the High Court of Onitsha in purporting to take over the proceedings from the "Biafran" High Court was incompetent to do so.

(2)     The proceedings are a nullity because the statement of claim with plan was filed not in the High Court of any territory in Nigeria but in the High Court of the Republic of Biafra holden at Ihiala and the High Court of Onitsha has no power to take cognisance of such statement of claim much less to make an interlocutory order under it as if it were a pending case."

The court granted leave to the appellants as prayed. Whereupon the appellants abandoned the four original grounds of appeal. The facts as relevant to this appeal are that on the 27th January, 1969, Egbuna J. sitting in the so called "High Court of the Republic of Biafra" issued a writ of summons for service on the defendants. On the 10th day of February, 1969, the same learned trial Judge made an order for pleadings. On the 27th day of October, 1969 the plaintiffs filed their statement of claim in the same "High Court of the Republic of Biafra". Subsequently there were filed in the same "High Court of Biafra" a number of documents including a motion on notice for interim injunction. The civil war ended on or about the 15th January, 1970. All other matters in respect of this case, including the filing of the statement of defence were filed in the High Court of the East Central State of Nigeria in the Onitsha Judicial Division. The trial and judgment were all continued in the said High Court of the East Central State.

Learned Counsel for the appellants argued the two grounds of appeal together. He referred us to various steps in the records of proceedings which were taken in the so called "High Court of the Republic of Biafra" in respect of this case. He argued that in the light of the decisions of this Court, the "High Court of the Republic of Biafra" is unknown to the law of the land. The so called "Republic of Biafra" was not a state in the federation of Nigeria according to the constitution of the federation as amended by the constitutional decrees. Learned Counsel further argued that any proceeding in the unconstitutional Court of the Republic of Biafra is null and void and neither the Onitsha High Court of the East Central State nor any other court in Nigeria could have power to adopt or continue any of the proceedings of the "Biafran Court". The present case is null and void and no party can derive any benefit therefrom.

We consider that the arguments and submissions of learned Counsel are based on sound principles of law. There are a number of decisions of this Court on what may be called, the "Biafran cases". Suffice to refer to a few only for the purposes of this judgment. In M.N. Uttah v. Independence Brewery Ltd. (now Golden Guinea Breweries Ltd.) 1974, 2 S.C. 7 an action in respect of the balance of trading account was commenced in the High Court at Umuahia in July 1966 in the former Eastern Nigeria. The rebellion supervened in May 1967. The action nevertheless continued in the "High Court of Biafra" and in November 1968 the said "Biafran Court" appointed an arbitrator. After the Civil War, the same trial Judge continued with the matter and using the arbitrator's report gave final judgment in the case against the defendant. Elias, C.J.N. delivering the judgment of this Court said at page 10:-

"It seems clear to us that the action was properly commenced within time and according to the Rules of the High Court of Eastern Nigeria as there existed up to and including May 26, 1967, but that, subsequently to that date, all the proceedings in the case before the High Court of the illegal regime must also be declared a nullity."

Then in the case of Okwuosa v. Okwuosa, 1974 2 S.C. 13 a divorce petition originated in the so called "High Court of the Republic of Biafra" in June 1967, in consequence of which the court in September 1967 made an order granting an alimony of £20 a month. The civil war ended on or about January 15, 1970. The petition was nevertheless continued by the same judge in the court of Umuahia in the East Central State of Nigeria. An order allowing the petitioner to amend her petition was made in July 1971 under the then new Matrimonial Causes Decree 1970. The respondent appealed to this Court. In giving the judgment of this Court, Elias C.J.N. said at page 20:

"We are, therefore, of the opinion that the proceedings of the Onitsha High Court in the East Central State of Nigeria in SUIT No. 0/4D/1967 delivered in July 1971 were a nullity and that the judgment of Egbuna J. must be set aside."

We would like to refer to one other case which came before this Court and in which two important enactments were discussed, namely, the Judicial Acts Validation Edict, 1970 (Edict No. 3 of 1970) and the Federal Military Government (Supremacy and Enforcement of Powers) Decree 1970 (Decree No. 28 of 1970). This is the case of Job Ike and others v. Patrick Nzekwe and others (1975) 2 S.C.1. The brief facts are that the plaintiffs in a writ of summons issued on July 21, 1969 "in the High Court of the Republic of Biafra" claimed for a declaration of title to land, damages and injunction. The statement of claim was also filed in the same "High Court of the Republic of Biafra". The civil war in Nigeria ended about the middle of January 1970. This case was continued in March 1971 in the High Court of Onitsha in the East Central State of Nigeria and judgment was given by Egbuna J. in favour of the defendants. The plaintiffs appealed. In arguing the appeal, the appellants submitted that the judgment of Egbuna J. was a nullity. The respondents however argued that the decision of this Court given on 18th November, 1971 in Suit NO. SC/225/71: Ifegbu and others v. Ukaefu and others declaring the East Central State Judicial Acts Validation Edict 1970 (Edict No. 3 of 1970) as invalid was itself invalid in view of the provisions of the Federal Military Government (Supremacy and Enforcement of Powers) Decree 1970 (Decree No. 28 of 1970) and that Ifegbu's case and Okwuosa's case were decided per incuriam. This court rejected the arguments of learned Counsel for the respondents and in giving the judgment of the court Elias C.J.N. said on page 7:-

"In the result, we are of the view that the proceedings in the High Court of Onitsha and the judgment of Egbuna J. delivered therein in Suit NO. 0/106/69 on May 26, 1973 are a nullity in that the Onitsha High Court purportedly took-over and completed the proceedings in a case commenced in a court not known to the Constitution of Nigeria, to wit, the High Court of Biafra."

So much for the law relevant to this appeal. We now consider the relevant facts in this case and the order to be made by us.