IKE AND ORS (APPELLANT)

v.

NZEKWE & ORS (RESPONDENT)

(1975) All N.L.R. 17

Division: Supreme Court 

Date of Judgment: 4th February, 1975

Case Number: SUIT NO. S.C. 253/74

Before: Elias, C.J.N., Sowemimo and Ibekwe, JJ.S.C.

Appeal from the High Court, Onitsha.

The plaintiffs/appellants sued for declaration of title to land in Onitsha, damages for trespass and injunction. The writ of summons was issued in 1969 "in the High Court of the Republic of Biafra", and so was the Statement of Claim. When the proceedings were resumed in 1971, the Onitsha High Court granted an extension of time in which plaintiffs could file an Amended Statement of Claim, followed by Statement of Defence. The Onitsha High Court found for defendants.

The plaintiffs on appeal to the Supreme Court, submitted inter alia that the proceedings and the judgment were a nullity in that the court took over and completed proceedings in a case which was commenced in a court unknown to the Constitution of Nigeria. Respondents' Counsel tabled a paper having neither title nor reference to any relevant Rule of Court, which sought to question the validity of the Supreme Court decision in an earlier case, declaring the East-Central State Judicial Acts (Validation) Edict No. 3 of 1970 invalid in view of the provisions of the Federal Military Government (Supremacy and Enforcement of Powers) Decree No. 28 of 1970.

The Supreme Court held this paper was neither a notice of preliminary objection, nor a cross-appeal by respondents. Furthermore, respondents' Counsel argued that all previous decisions of this Court, should be regarded as having being reached per incuriam in that this Court's attention was not drawn in those cases to the Federal Military Government (Supremacy and Enforcement of Powers) Decree No. 28 of 1970 under which courts of law in the Federation were forbidden to declare Decrees and Edicts invalid.

HELD:

(1)     that the authorities cited by respondents' Counsel to support his submissions must be regarded as subject to the overriding consideration of State Policy as declared by the Supreme Military Council which has the force of law in Nigeria, and that this policy declaration is that, so far as the judges and the courts that operated within the rebel enclave are concerned, they should be regarded as on leave without pay for entire duration of the civil war, and that this period of rebellion should not count for seniority and pension purposes;

(2)     that to the extent that Edict No. 3 of 1970 purports to validate certain judgments given during that period, it must be deemed to be contrary to the Supreme Military Council declaration;

(3)     that, in any case the Supreme Court cannot entertain an appeal from the so-called "High Court of Biafra", because it is not one of the 12 State High Courts in existence in the country since May 27, 1967 from which alone appeals lie thereto; and

(4)     that, contrary to the contention of Counsel for the respondents that the fact that the Statement of Claim had been filed in a non-existent High Court of Biafra should be treated as a mere procedural irregularity which was cured by the Amended Statement of Claim filed before the proper High Court of the East-Central State, the claim in this case was rooted in the illegality of the court which cannot be cured by mere procedural amendments and correction.

Appeal allowed.

Cases referred to:

Uttah v. Independence Brewery Ltd. (1974) 2 S.C. 7

Okwuosa v. Okwuosa (1974) 2 S.C. 13, 19

Ogbuagu and Ifegbu & ors v. Ota Ukaefi (1971) 1 E.C.S.L.R. 184

Adebiyi Adejumo v. H.E. Col. Mobalaji Johnson, Military

Governor of Lagos State (1972) 1 All N.L.R. (Part 1) 159

Adenrele Adejumo v. Col. Mobalaji Johnson (1974) 5 S.C. 101

Statutes referred to:

Constitution of the Federation 1963

Federal Military Government (Supremacy and Enforcement of Powers) Decree No. 28 of 1970

East-Central State Judicial Acts (Validation) Edict No 3 of 1970

APPEAL from the High Court, Onitsha

SUIT NO. S.C. 253/74

Mr N.N. Anah, with him Mr Zanda IZundu, for the Appellants.

Mr G. O. K. Ajayi, with him Mr Funmi Jibowu, for the Respondents.

ELIAS C.J.N. (Delivering the Judgment of the court)

In Suit No. 0/106/69 before the high Court of Onitsha, Ebguna, J., gave judgment in favour of the defendants and dismissed the claim of the plaintiffs who claimed as follows:-

"1.     Title to a piece and parcel of land known as and called 'Ani Ofia Udo Okwuefi' as delineated and verged 'pink' in Plan No. L/D. 289 filed with the Statement of Claim.

2.      £100 damages for trespass against the defendants jointly and severally.

3.      A perpetual injunction to restrain the defendants their servants and/or agents from further acts of trespass on the said land."

The real problem which arose for determination in this appeal brought by the plaintiffs was the fact the Writ of Summons had been issued on July 21, 1969 "in the High Court of the Republic of Biafra", and so had been the Statement of Claim. The Nigerian civil war came to an end about the middle of January, 1970, but the proceedings in the instant case were not resumed until Monday, March 15, 1971, when the High Court of Onitsha granted a motion for the extension of time in which the plaintiffs could file an Amended Statement of Claim, followed by the Statement of Defence, The proceedings came to an end with the judgment of Egbuna, J., at the Onitsha High Court, from which the present appeal has been brought before the Supreme Court on the following grounds:-

"1.     The proceedings in the High Court of Onitsha and the judgment delivered thereof are a nullity in that the High Court took over and completed the proceedings in a case which was commenced in a Court not known to the Constitution of Nigeria, to wit, the High Court of Biafra.

2.      The learned trial Judge erred in law by assuming jurisdiction to hear and determine an action which was instituted in a Court not known to the Laws of Nigeria, namely, the High Court of Biafra.

3.      The learned trial Judge erred in law by awarding cost against the appellants in that he had no jurisdiction to hear and determine the case."

The court had before it two documents, one being a motion by Counsel for the appellants for accelerated hearing of the appeal, the other being a paper filed by Counsel for the respondents which carried not title or reference to any relevant Rule of Court. The motion for accelerated hearing, learned Counsel for the appellants conceded, had been overtaken by the listing of the appeal for hearing. With regard to the document filed by the respondents' Counsel, it seems necessary to reproduce it here. It reads as follows:-

"Take Notice that the respondents intend to raise, at the hearing of this appeal, the following Constitutional Question, viz:-

Whether or not the decision of this Honourable Court given on the 18th day of November 1971 in Suit No. SC/225/71: Ifegbu & ors. v. Ukaefi & ors. declaring the East-Central State Judicial Acts (Validation) Edict No. 3 of 1967 invalid, is void having regards to the provisions of the Federal Military Government (Supremacy and Enforcement of Powers) Decree No. 28 of 1970.

Dated this 29th day of January, 1975." The court pointed out that this strange document cannot be regarded either as a notice of preliminary objection to the appeal being brought, nor as a cross-appeal on the part of the respondents. Learned Counsel agreed that it is no more than an advance notice of what might be urged as part of the reply that would be given in the course of argument.

We accordingly invited learned Counsel for the appellants to argue his grounds of appeal. Mr Anah asked and was granted leave to argue grounds 1 and 2 together first. He submitted that the judgment obtained by the defendants in Suit No.0/106/69 delivered by Egbuna, J., on May 26, 1973, was a nullity and that the learned trial Judge ought to have refused to assume jurisdiction over the hearing of the claim. His reason is that the claim originated in a so-called "Biafran High Court" and the consequential order that the plaintiffs were given 120 days within which to file their Statement of Claim and plan and serve the same on the defendants who were also given 150 days after such service to file their Statement of Defence and plan, was that of the self-same court. Learned Counsel, therefore, submitted that the trial Judge was wrong to have taken over the proceedings which originated in a non-existent court because it was not one of the 12 State High Courts existing within the Federation of Nigeria since May 27, 1967. He referred to the decision of this Court in Uttah v. Independence Brewery Ltd. (1974) 2 S.C. 7, in which it was held that the proceedings before Aniagolu, J., at the High Court, Umuahia, delivered on April 17, 1972, in consequence of an action that had been commenced in the so-called High Court of "Biafra" on December 28, 1967, were a nullity, since they were "based on the report of a referee appointed by Aniagolu, J., in his capacity as a judge of a non-existent High Court of the so-called Biafra, and that no appeal could lie from such an entity to the Supreme Court of Nigeria." Learned Counsel also referred to our decision in Okwuosa v. Okwuosa (1974) 2 S.C. 13, at p. 19 of which we observed as follows:

"We also find ourselves in agreement with the submission of learned Counsel for the appellant that the Judicial Acts Validation Edict 1970, to the extent to which it declared in Section 3 that the decisions of the High Court of 'Biafra" were to be held as valid, is not valid and has been declared invalid by the Supreme Court in some recent decisions, of which it is sufficient to refer to Ogbuagu and Ifegbu and others v. Ota Ukaefi (1971) 1 E.C.S.L.R. 184."

In the Okwuosa Case, we also held that "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, including the order as to costs." We were asked by the learned Counsel for the appellants to hold that his ground 3 was sufficiently covered by our observations regarding costs in the Okwuosa Case.

Mr Ajayi learned Counsel for the respondents, in his reply, referred to the paper which he had filed and which we have quoted above, and submitted that Okuwosa v. Okwuosa and other related cases should be regarded as having been decided by us per incuriam in that the court's attention was not drawn in those cases to "The Federal Military Government (Supremacy and Enforcement of Powers) Decree No. 28 of 1970" under which courts of law in the Federation were forbidden to declare Decrees and Edicts invalid. It was his submission that this 1970 Decree renders invalid and decision of the Supreme Court declaring the East-Central State Judicial Acts (Validation) Edict No. 3 of 1970 invalid. In support of his contention, learned Counsel cited Adebiyi Adejumo v. H.E. Col. Mobalaji Johnson, Military Governor of Lagos State (1972) 1 All N.L.R. (Part 1) 159, in which it was held that once an instrument is stated to have been made under a Decree or an Edict so that the validity of the instrument cannot be attacked except on the sole ground that it was made under an Edict which is inconsistent with a Decree. Learned Counsel also cited Adenrele Adejumo v. Col. Mobalaji Johnson (1974) 5 S.C. 101, in which the earlier case was referred to in support of the view that Decree No. 28 of 1970 precludes the courts from testing or inquiring as to whether an Edict conflicts with or is inconsistent with the Constitution. It is sufficient for us to observe that both these cases must surely be subject to the over-riding consideration of State policy as declared by the Supreme Military Council having the force of law in Nigeria. The series of decisions, beginning with that in Ifegbu & ors., v. Ukaefi & ors., Suit No. SC/225/71, up to and subsequent to Okwuosa v. Okwuosa, far from having been arrived at by this Court per incuriam, have in fact been based upon the premise that judicial notice should be taken of the Supreme Military Council declaration and ruling to the effect that, so far as the judges and the courts that operated within the rebel enclave are concerned, they should be regarded as on leave without pay for the entire duration of the civil war, and that this period, of rebellion should not count for seniority and pension purposes. To the extent, therefore, that Edict No. 3 of 1970 purports to validate certain judgments given during that period, it must be deemed to be contrary to the Supreme Military Council declaration. There is, of course, the further fact that the Supreme Court cannot entertain an appeal from the so-called "High Court of Biafra" because it is not one of the 12 State High Courts in existence in the country since May 27, 1967, from which alone appeals lie to the Supreme Court of Nigeria.