Contempt of Court

Before Their Lordships

Between

AND

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OLABODE RHODES-VIVOUR, J.S.C. (Delivering the Leading Judgment): In 1958 there were no States in Nigeria. Nigeria was divided into three Regions. The North, West and East. The Government of Western Nigeria acquired a vast area of land measuring 5000 acres for public purposes. The land acquired was within Badagry, Ikeja and the Colony (i.e. Lagos). The acquisition was Gazetted in the Western Regional Notice of Nigeria Gazette No. 28 Vol. 17 of 24/4/1958.

Before Their Lordships

Between

AND

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MARY UKAEGO PETER-ODILI, J.S.C. (Delivering the Leading Judgment): The Appellant herein was the Defendant at the Federal High Court, Ilorin in Suit No. FHC/IL/53/2004 and the Appellant in the Court of Appeal in the appeal NO. CA/IL/53/2006.

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On the 29th day of April, 2014 date of hearing, the Appellant was absent and not represented even though there was proof of service and so the Appellant’s Brief of Argument settled by Chief Olatunji Arosanyin and filed 8th day of May, 2008; in the circumstances, the Brief of Argument and Reply Brief filed on 25/8/08 was taken argued. In it were crafted two issues which are as follows:-
1. Whether the Lower court did not wrongly evaluate the evidence of facts and the exhibits against the Appellant which thereby occasioned a miscarriage of justice, (Grounds two and three).
2. Whether the Lower court was not wrong holding that the judgment of the trial court did not infer from the letter of pardon that the Respondent need not satisfy other requirements. (Grounds one).
Adeyinka Olumide – Fusika Esq adopted the Brief of Argument he settled and which was filed on 25/6/08.
In the Brief of Argument was argued the Preliminary Objection raised by the Respondent. Learned counsel stated that in the event of the Court not upholding the Preliminary Objection, then two issues for determination should be utilized in the consideration of the appeal which are as follows:-
(a) Whether the Lower court misdirected itself when it said “That aside, there is nowhere in the judgment where the learned trial judge referred from Exhibit B2 “that the Respondent/Plaintiff was pardoned from taking all examinations and satisfying other requirements of the Appellant/Defendant. (Ground 1 of appeal).
(b) Whether the Lower court rightly affirmed the trial Court’s assumption and exercise of jurisdiction in the Plaintiff’s cause. (Grounds 2 & 3 appeal).
The Preliminary Objection having been abandoned, I shall proceed with the substantive appeal and in doing so make use of the issue as couched by the Appellant which I see as easy to follow.

ISSUE ONE:
Whether the Lower court did not wrongly evaluate the evidence of facts and the exhibits against the Appellant which thereby occasioned a miscarriage of justice.
For the Appellant was submitted that the Lower Court evaluated the evidence and the exhibit placed before the trial court, as the trial court did and as a result a miscarriage of justice was occasioned against the Appellant. That the letter of apology dated 22/6/2001 written by the Respondent was covered by a letter dated the same 22/6/2001 and written by Chief S. K. Babalona, Chairman and Special Adviser on Education to the President.
Learned counsel for the Appellant, Chief Arosanyin contended that on the 13th September, 2001, the Registrar of the Appellant who was the DW4 at the trial court wrote the letter titled “Review of DISCIPLINARY ACTION ON MR. AKINOLA OLANREWAJU in which the last paragraph states that “it is hoped that you will show appreciation for the University Administration’s kind gesture by keeping to your pledge that you will, henceforth, abide by the rules and regulations of the institution.” The letter is Exhibit “B2”. He said that by Exhibit “B2”, the Respondent was restored to his studentship status and he should obey all rules and regulations thereafter. That the said Exhibit “B2” only permitted the Respondent to be in school and continue his studentship and did not automatically graduate the Respondent nor did it order the Appellant to release the result of the Respondent to him.
For the Appellant was submitted that the respondent ought to have presented his grievance after the letter of pardon before the senate and the Governing Council of the University before filing his suit in Court. That Exhibits G, G1, G2, G3 and G4 were letters directed either to the Vice-Chancellor or the Registrar and not the Senate or Governing Council of the university. That when there was no favourable response to those Exhibits, the Respondent had ample opportunity of appealing to the Senate and Governing Council of the University Council of the University instead of filing the suit in Court.
That the trial court had no jurisdiction to enter into an internal matter of the Appellant.
Chief Arosanyin of counsel for the Appellant said the Respondent initiating the Court process did so prematurely as he ought to have first exhausted the University’s internal mechanism for settlement of such disputes after his studentship was restored by the Appellant and his result not released to him. He said that the release of examination results or certificates is within the province of the University and its governing council over which the court ought not to have exercised jurisdiction. He cited Magit v. University of Agriculture Makurdi (2005) 19 NWLR (Pt.959) 211; University of Calabar v. Esiaga (1997) 4 NWLR (Pt.502) 719.
He concluded for the Appellant by saying that the Chief S.K. Babalola’s Resolution Committee on Politically Victimized and Rusticated Students and Staff, resolved only the issue of the respondent’s studentship and not the specific issue of delay or failure to release Respondent’s result or certificate.
In reaction, learned counsel for the Respondent after going into snippets of the consideration and findings of the two Courts below urged the court to resolve the issue in favour of the respondent by holding that the lower Court did not misdirect itself when it said, “That aside, there is nowhere in the judgment where the learned trial judge inferred from Exhibit B2 “that the Respondent/Plaintiff was pardoned from taking all examinations and satisfying other requirements of the Appellant/Defendant.”
The Appellant’s Reply on Points on Law in this issue one was a mere recap of the main submissions from their Brief of argument and so, no need for its being repeated herein.
The divergent positions taken by either side may be briefly stated to be thus: In the view of the Appellant, the Lower court wrongly evaluated the facts and the exhibits placed before the trial court if it was rightly done by the Court of Appeal, it would have found that the trial court lacked the jurisdiction to try the case as it was purely an internal matter of the Appellant. Also that the Court of Appeal was wrong to hold that the judgment of the trial Court did not infer from the letter of pardon (Exhibit “B2”) that the Respondent need not satisfy other requirements after the Appellant gave the letter of pardon Exhibit “B2” to the respondent requirements and regulation such as clearance of the respondent by all the Heads of Department.
The stance of the Respondent on the other hand is that the Appellant had failed to fault any of the findings of fact and/or of law upon which the Lower Court upheld the trial Court’s assumption and exercise of judgment in this case and so this case does not present this Court with an occasion to interfere with the concurrent findings and decisions of the two Courts

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other than to affirm and refuse the invitation to set aside the judgment of the Court of Appeal.
On this question of whether there was proper evaluation of the facts and exhibits by the Court of Appeal, I shall quote excerpts from that court’s judgment for a clearer vision and that is to be found at page 215 of the Record of Appeal and thus:-
“On Ground No.4 of the Notice of Appeal, the appellant complained that the trial judge drew the wrong inference from Exhibit “B2” by interpreting it to mean that the Respondent/Plaintiff was; pardoned from taking all examinations and satisfying other requirements of the Appellant/Defendant.
Learned counsel (for the Respondent) submitted that there is nowhere in the Exhibits tendered at the trial and considered in the judgment of the learned trial Judge was any “letter of invitation to appear before the SDC (student Disciplinary Committed) mentioned as…… particular in support of his ground (iv) of the Appeal under consideration.
A careful perusal of the exhibits tendered and considered in the judgment tends to support the submission of the learned counsel on this point. I am of the opinion that if the document was never in evidence, then it could not have contributed to the weight of evidence against which the Appellant has alleged the judgment to the learned trial judge went.
TheCourt below further held as follows:-
“On whether the Presidential Committee gave any directive that the Plaintiff should not retake examinations of invalidated result (particularly NO. ii on Ground III of appeal, after careful perusal of the Record of the Trial Judge, I must agree with the learned Counsel for the respondent that this particular is an expression of the fertile imagination of the Appellant and its Counsel. The evidence from Defendant’s own witnesses (as explicit on the Record of Appeal) shows that the Plaintiffs results were never invalidated, only withheld, So the Presidential Committee could not have deliberated upon or made any decision on a situation (“invalidation of result”) that never existed.”
On the grouse of the Appellant on a lack of proper evaluation by the Court of Appeal, I shall refer to the reference to Exhibit B2″, the pivotal exhibit in this matter and I will quote as follows:-
“… EXHIBIT “B2” being acceptance letter of Apology by the defendant dated 13/9/01 buttresses the point that the Plaintiff’s travails may have resulted from his indiscipline, Excerpts from Exhibit B2 states thus:
“Following the intervention of the Resolution Committee of Politically Victimized and Rusticated Students who visited the University and made an appeal to the University on your behalf, with retards to the disciplinary action(underlining mine) meted to you as a result of your participation in the students rampage (underlining mine) of 1998, lam pleased to inform you that the University Administration has decided that: “Your apology ….be accepted.”
“However, Exhibit A2 being memo submission of (defendant) to the Resolution Committee on Politically Rusticated Students in respect of the Plaintiff admitted the Plaintiff was referred to Students Disciplinary Committee (SDC) and (which) had not taken any action before the Plaintiff obtained relief from the Federal High Court, Ilorin. The defendant’s reason for the withholding of the Plaintiff’s result could be found at in Page 2 of the said Exhibit A2. It stated thus:-
“Meanwhile, Mr. Akinola has applied for the release of his final examination results to enable him proceed on NYSC programme. This could not be entertained as Senate cannot consider his result until the Appeal pending against his case is decided one way or the other by the Court of Appeal, Ilorin.”
“Exhibit A2 also denies any disciplinary measures meted out to the Plaintiff as he was never suspended, rusticated or expelled. It is pertinent to note that Exhibit A2 is contrasting to Exhibit B2. Exhibit B2 states in clear terms that the disciplinary action meted to the Plaintiff as a result of his participation in the student’s rampage of 1998 is being waived because of the intervention of the Resolution Committee and Plaintiffs apology being accepted by the Defendant. The question now becomes what was the disciplinary measure meted out to the plaintiff under Exhibit B2 before the intervention of Resolution Committee since (by) Exhibit A2 and even Exhibit H, the Plaintiff was never suspended, rusticated or expelled?
“I presume, logically and rightly too that the disciplinary measure meted out to the Plaintiff in the absence of suspension, rustication or expulsion, was the withholding of his result which the resolution Committee by its intervention ordered the release to the plaintiff.
The Court is of the firm view that the issue of academic or discipline sought to be introduced through the backdoor is an afterthought aimed at ousting the jurisdiction of the Court. Exhibit A2 clearly stated that Plaintiffs result cannot be considered by the Senate because of pending Appeal at the Court of Appeal, Ilorin. It went further to say that the Plaintiff merely has not met the conditions for the award of a Degree of the University of Ilorin without saying what the conditions are….”
Clearly within that evaluation by the Court below is found the evaluation, assessment and consideration of the said Exhibit B2 and other related exhibits. Also to be said is the painstaking effort made by the Court of Appeal per Tijani Abdullahi – JCA in reviewing the evidence of witnesses and conceptualizing them with exhibits and circumstances. The Court below had found out that they had searched the Record of proceedings and cannot find where the: Defendant adduced any credible evidence in proof of the allegation in their pleading that the second semester 1997/98 academic session’s examination was invalidated and the plaintiff had been so informed by the Plaintiff’s H.O.D. and had also pleaded a letter dated 27th March, 2002 which would be relied upon at the trial.
From what the Court below found and stated too, that the Appellant as defendant did not lay evidence in proof of their averment in pleading, which translates to the averment going to no issue or taken as abandoned.
Parties are bound by their pleadings and the case they present in those pleadings in the case to be considered by the Courts. Also in so far as pleadings do not contain admissions then the matters alleged must be proved in evidence. See Onyia v Oniah & Ors (1989) 1 NSCC 319; National investment & Properties Co. Ltd v The Thompson Organization Ltd & Ors (1969) All NLR 134.
To be stated is the concurrent finding by the two Courts below on what transpired with the Respondent’s examination, the withholding of the results and the punitive actions taken by the Defendant/Appellant. I will quote pages 212 – 215 of the Record of appeal to buttress. It is thus:- “administrative and not a disciplinary case as it is being misconstrued by you;”….

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On whether the Presidential Committee gave any directive that the Plaintiff should not retake examinations of invalidated resulted (Particulars No. II of Ground III of Appeal, after careful perusal of the Record of the trial Judge, I must agree with the Learned Counsel for the respondent that this particular is an expression of the fertile imagination of the Appellant and its counsel. The evidence from Defendant’s own witnesses, (as explicit on the Record of appeal), shows that the Plaintiff’s results were never invalidated, only withheld. So the Presidential Committee could not have deliberated upon or made any decision on a situation (“invalidation of result”) that never existed.
On the alleged misconstruing by the trial Court of the involvement of the Presidential Committee. Particular No. III of Ground III, the Learned Trial Judge made a detailed and a very comprehensive finding which in my opinion cannot be faulted in any way. The Learned Trial judge held thus:-
“I think and rightly too that the Plaintiff is entitled to know why his result is being withheld especially after the wading in or intervention of Presidential Committee on politically victimized and rusticated students. A very close look at EXHIBIT B…EXHIBIT B2…, EXHIBIT A2… AND EXHIBIT H…. reveals an incoherent, insincere, vague, evasive, confusing and contradicting statements regarding what the true offence or reason for the withholding of the Plaintiff’s result is…Certain relevant portions of the aforementioned exhibits buttresses these points. For instance in Exhibit B, part of its states – As agreed during our discussion with your management(underlining mine) my Committee invited the two students (one of them, the Plaintiff in this case) to Abuja and counselled them on the need to behave responsibly in all their dealings. (Underlining mine) similarly, they voluntarily wrote apology letters through my committee in line with our procedural rules. I therefore wish to forward to you the letters of Apology of (1) Akinola Stephen. Olarewaju – 95/043061 (2) Adesina Aderike Rasheedat – 95/043569. As earlier on discussed (Underlining mine) you would be duly informed as soon as the date for the proposed seminar for all recalled students is fixed.” From the above excerpts from Exhibit B written by Resolution Committee on politically victimized and rusticated students and signed by its Chairman, Chief S.K. Babalola, Special Adviser on Education to the president, addressed to the vice Chancellor University of Ilorin (defendant) it can be deciphered that the committee and the University (defendant) had had common fruitful discussions that led to mutual understanding of the resolution. It is also not in doubt that the theme on the agenda of the discussion was… the Plaintiff and one other student….
Again, Exhibit B2 being acceptance letter of Apology by the defendant dated 13/9/01 buttresses the point that Plaintiff’s travails may have resulted from his indiscipline. Excerpt from Exhibit B2 states thus: Following the intervention of the resolution Committee of Politically Victimized and Rusticated Students who visited the University and made an appeal to the university on your behalf, with regards to the disciplinary action (underlining mine) meted to you as a result of your participation in the students rampage (underlining mine) of 1998, I am pleased to inform you that the University Administration has decided that: “(1) Your apology….. be accepted.”
However, Exhibit A2 being memo submission of (defendant) to the Resolution Committee on Politically rusticated students in respect of the Plaintiff admitted the Plaintiff was referred to students Disciplinary Committee ISDC) and had not taken any action before the Plaintiff obtained relief from the federal High Court Ilorin. The defendant’s reason for the withholding of the plaintiffs result could be found in page 2 of the said Exhibit A2. It stated thus: “Meanwhile, Mr. Akinola has applied for the release of his final examination results to enable him proceed on NYSC programme, This could not be entertained as Senate cannot consider his result until the Appeal pending against his case is decided one way or the other by the Court of Appeal, Ilorin. Exhibit A2 also denies any disciplinary measures meted out to the Plaintiff as he was never suspended, rusticated or expelled. It is pertinent to note here that Exhibit A2 is contrasting to Exhibit B2. Exhibit B2 stated in clear terms that the disciplinary action meted to the Plaintiff as a result of his participation in the student’s rampage of 1998 is being waived because of the intervention of the resolution committee and plaintiffs apology being accepted by defendant. The question now becomes what was the disciplinary measure meted out to the Plaintiff under Exhibit B2 before the intervention of Resolution Committee since by Exhibit A2 and even Exhibit H, the Plaintiff was never suspended, rusticated or expelled.
I presume, logically and rightly too that the disciplinary measure meted out to Plaintiff in the absence of suspension, rustication or expulsion was the withholding of his result which the Resolution Committee by its intervention ordered the release to the Plaintiff…”
“It is instructive to note that based on the detailed and comprehensive assessment of the facts, the learned trial Judge applied the law and held that the said committee can be treated either as agent of the Visitor of the Defendant who by statute has overriding authority over the affairs of the defendant, or as an arbitral body whose decision is binding on both parties in so far as they have voluntarily submitted to its jurisdiction. This was how the learned trial Judge put it from P.151 – 158 of the Record.
On Ground No. 4 of the Notice of Appeal, the Appellant Complained that the trial Judge drew the wrong inference from Exhibit 2 by interpreting it to mean that the Respondent/Plaintiff was pardoned from taking all examinations and satisfying other requirements of the Appellant/Defendant.
Learned Counsel submitted that there is nowhere in the Exhibits tendered at the trial and considered in the judgment of the learned trial Judge was any “letter of invitation to appeal before the SDC” mentioned as basis of the first particular in support of this ground (iv) of the Appeal under consideration.
A careful perusal of the Exhibits tendered and considered in the judgment tends to support the submission of the learned counsel on this point. I am of the opinion that if the document was never in evidence, then, it could not have contributed to the weight of evidence against which the Appellant has alleged the judgment of the learned trial Judge went.
That aside, there is nowhere in the judgment where the learned trial Judge inferred from Exhibit B2 “that the respondent/Plaintiff was pardoned from taking all examinations and satisfying other requirements of the Appellant/Defendant. This I agree with the learned counsel for the respondent when he submitted thus:”
“This is another invention from the Appellant’s unbridled imagination.”
From the thorough work done by the two court’s below, there is not much to add except to go along with their findings which are concurrent and emanating from concrete findings based on the evaluation of what was before them resulting in the

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conclusion that the Appellant set out to ensure the respondent had no respite whatever was the outcome of the Visitation Panel, the agreements they were party to and even the pardon Exhibit B2 which they created. The situation akin to sending the Respondent on a mission to buy salt and on getting the salt, finds himself drenched by rain which the Appellant sent. That is give with the right hand and take back with the left, a visitation on a student which ought not to be associated with the University or Ivory Tower as colloquially called or citadel of learning and character formation.
No doubt this issue cannot but be resolved except against the Appellant and in favour of the Respondent.

ISSUE TWO:
Whether the Lower Court was not wrong in holding that the judgment of the trial Court did not infer from the letter of pardon that the Respondent need not satisfy other requirements.
Chief Arosanyin of counsel submitted that the Lower Court was wrong to have held that the trial Court did not infer from Exhibit “B2” that the Respondent was pardoned from taking all examinations and satisfying other requirements of the appellant. That the pardon was not of finality but only to restore the studentship of the Respondent. That the payment of N1000.00 was common to all the students of the University before they could be re-admitted as student of the institution and that Exhibit “B2” could not be conclusive as it only spelt out what the Respondent must do.
Learned counsel for the Appellant submitted that after the letter of pardon, the Respondent must still obey the rules before graduation and it is on record that the Respondent was not cleared by all his departments as required by the regulation of the Appellant. That Exhibit F2 shows that the Respondent was not cleared by some heads of certain departments such as Accountancy and the Faulty Officer. That it is the duty of the court as happened in this case to give effect to Exhibit “B2” and not make a new agreement for the parties. He cited Baker Marina Nigeria Ltd v Chevron Nigeria Ltd (2006) SCNJ 124 at 133.
That Exhibit “B2” cannot be used to usurp the function of the senate on the selection of their fit and proper candidate for passing and for the award of certificate, degree and diploma. He referred to Akintemi & Ors. v. Onwumechili & Ors. (1985) 1 NWLR (Pt.1) 68 at 85; Patroci D. Magit v. University of Makurdi (2000) All FWLR (Pt.289) 1313.
For the Respondent was submitted that the concurrent findings of the two Courts below should be upheld as they were reached without error and from proper evaluation and no miscarriage of justice was occasioned. He cited Ibodo v Anorofia (1980) 5 -7 SC 42; George Onobruchere & Anor v. Esegine & Anor (1986) 1 NWLR (Pt.19) 799; Umeojiako v Ezenamuo (1990) 1 NWLR (Pt.126) 253 at 274; Ogbokwelu & Ors v Umeanafunkwa (1994) 4 NWLR (Pt.341) 676 at 697; Kossen (Nig.) Ltd v Savannah Bank (Nig.) Ltd. (1995) 9 NWLR (Pt.420) page 439 at 454.
At this point, I need to bring in the visitorial powers of the Visitor being the president/Head of State of the Federal Republic of Nigeria in relation to the University of Ilorin under Section 14(2) and Sections 6 and 7 Cap U7 University of Ilorin Act LFN Vol.15, 2004 which powers include the following:
(1) Appointing other persons to act on his behalf.
(2) To deal with any affairs of the University.
(3) To overrule any decision of the Council of the University.
(4) To overrule any decision of the Senate of the University.
The powers of the Head of State and Commander of the Armed Forces are overriding when the occasion warrants it, and I must say the circumstances in this case called for the exhibition of those: powers as this Court also held in the earlier cases of similar presentations in Anya v Iyayi (1993) 7 NWLR (Pt.305) 290 and Shitta v A.G. Federation (1998) 7 SCNJ 264.
Again, to be pointed out is that the Head of State did not need to write or at personally in these intervention scenarios but can do so through those he had appointed to so act even if those appointments were made on his behalf either by the Secretary to the Government or any minister or aid so acting. Therefore, when the Resolution Committee appointed and empowered as stated above, their resolution of the impasse between the Respondent and the University was final and the University in council or through its Senate or whatever body had no option than to comply as the Resolution Committee was merely the face of the Visitor or Head of State and there would be no question as to whether there should be compliance or not. For further clarity, I shall quote the provisions of the university of Ilorin Act and that as follows:-
Section 14 Cap U7 University of Ilorin Act LFN Vol. 15, 2004 establishes the office of the VISITOR.
“Section 14(1) stipulates that the president shall be the Visitor of the University.
Section 14(2) The Visitor shall often as the circumstances may require Not being less than once every five years conduct a visitation of the University or direct that such a visitation be conducted by such persons as The Visitor may deem fit and in respect of any of the affairs of the University (underlining mine).
Also of great interest is that both Sections 6 & 7 of the University of Ilorin Act dealing with functions of the Council of the University and functions of the Senate respectively did subject those functions to the overall power and jurisdiction of the VISITOR.
6. Functions of the Council:
(1) Subject to the provisions of this Act relating to the Visitor, the Council shall be the governing body of the University and shall be charged with the general control and superintendence of the policy, finances and property of the University, including its public relations.
7. Functions of the Senate:
(1) Subject to Section 6 of this Act and subsections (3) and (a) of this section, and to the provisions of this Act relating to the Visitor, it shall be the general function of the Senate to organize and control the teaching of the University, the admission (where no other enactment provides to the contrary) of students and the discipline of students, and to promote research at the University.
The conclusion derivable from the above stated provisions is that after the full deliberation of the Resolution Committee and the pardon granted by the University that became the end of the matter.

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In fact, with the powers of the Visitor even without the pardon by the University, once the Resolution Committee pronounced the restoration of Respondents, full entitlements those would be like words made in granite, immutable and unquestionable and the effect being the graduation of the Respondent as a degree holder, however, bitter the pill may be on the University Authorities or staff and whatever the extent of the bruising to their egos may be.
To be exact, what the Appellant and its agents were doing was without the necessary vires and in fact was an affront on the authority and powers of the Head of State. These were the findings of the two Courts below which are unassailable and there being no leg on which an interference by this Court on those findings of fact not to talk of the fact that no miscarriage of justice or perverse findings can be alluded to, this court in line with its policy has to go along with those findings emanating from sound evaluation by the two Courts on the facts available, the operative law and the evidence including the documentary evidence.
Indeed, I am at one with the findings and conclusion of the two Courts below and so those concurrent findings are upheld. I place reliance on Kossen (Nig.) Ltd. v. Savannah Bank (Nig.) Ltd. (1995) 9 NWLR (Pt.420) 439 at 454;Ibodo v. Enarofia (1980) 5 – 7 SC 42; Onobruchere v. Esegine & Anor (1986) 1 NWLR (Pt.19) 799.
Having stated the above and getting to the question as to whether the Court of Appeal was not wrong in holding that the trial Court did not infer from the letter of pardon that the Respondent need not satisfy other requirements. To put it bluntly and once again, whether the University gave a pardon to the Respondent or not, once the Visitor acting by himself or through appointees had held that the Respondent be placed back in good standing, that was final. To seek as the Appellant had done in this instance to pock and attempt by ways and means to find a route or channel to keep the Respondent down only delayed the matter but they cannot have the final say or act as the Respondent had been restored to his position. I cannot conclude without admonishing those in authority to desist from the insubordination that would carry it into disobeying the orders of the Head of State and worst still in an Educational Institution of the Highest Level, the University. It is anomalies such as has taken place therein that have given room for the breakdown of law and order for which the society has become the victim. The Vice-Chancellor, the Governing Council and the Senate of the University are well advised to keep within the ambit or boundaries of respective powers granted them by the University of Ilorin Act. In that wise, none of them should venture within the powers or authorities only available to the Visitor and Head of State. It is indeed unfortunate to do otherwise.
The two issues raised having been without difficulty resolved in favour of the Respondent and against the Appellant, this appeal lacks merit and is hereby dismissed. I affirm the judgment of the Court of Appeal which upheld the decision and orders of the trial High Court.
I award N200,000.00 costs to the Respondent to be paid by the Appellant.

MAHMUD MOHAMMED, J.S.C.: I have had the privilege of reading the Judgment of my learned brother Mary Ukaego Peter-Odili, JSC, which has just been delivered, before today. I entirely agree with the reasons leading to the conclusion arrived at that this appeal is devoid of merit and therefore ought to be dismissed.
The facts leading to the circumstances giving rise to the present appeal have been comprehensively narrated in the lead Judgment. The two issues the Appellant had placed before this Court in its Appellant’s brief of argument for the determination of this appeal are:-
“1. Whether the lower Court did not wrongly evaluate the evidence of facts and the exhibits against the Appellant which thereby occasioned a miscarriage of justice.
2. Whether the lower Court was not wrong holding that the Judgment of the trial Court did not infer from the letter of pardon that the Respondent need not satisfy other requirements.”
It is quite plain from these two issues that the main complaint of the Appellant in this appeal rests with the evaluation of the oral and documentary evidence placed by the Parties before the trial Court for consideration in arriving at its final decision. The Court below in its Judgment delivered on 8/6/2007, which is now on appeal, had extensively dealt with the complaint on the evaluation of the evidence on record also raised in the appeal at that Court below before coming to the conclusion that there was no substance at all in that complaint. Looking into some of the documentary exhibits particularly Exhibits ‘B2’ and ‘A2’, it is clear that in its letter accepting the apology of the Respondent following the advice of the Resolution Committee of the Politically Victimized and Rusticated Students which visited the Appellant’s University, the Appellant had this to say in its letter ‘EXHIBIT ‘B2’:-
“Following the intervention of the Resolution Committee of Politically Victimized and Rusticated Students who visited the University and made an appeal to the University on your behalf, with regards to the disciplinary action meted to you as a result of your participation in the Students rampage of 1998. I am pleased to inform you that the University Administration has decided that your apology…be accepted.”
However, in the memorandum submitted by the same Appellant to the Resolution Committee on Politically Victimized and Rusticated Students in the respect of the Respondent’s case in Exhibit ‘A2’, the Appellant had admitted that although the case of the Respondent was referred to the Students Disciplinary Committee (SDC) of the Appellant, no action was taken by that Committee before the reliefs sought by the Respondent in his action against the Appellant were granted by the Federal High Court Ilorin in its Judgment against the Appellant delivered on 21/6/2006.
It is also observed that in the same Memorandum Exhibit ‘A2’ the Appellant gave its reasons for failure to release the Respondent’s final examination results as follows:-
“Meanwhile, Mr. Akinola has applied for the release of his final examination results to enable him proceeds on NYSC programme. This could not be entertained as Senate cannot consider his result until the Appeal pending against his case is decided one way or the other by the Court of Appeal, Ilorin.”
Having regard to the above condition stated by the Appellant for it’s Senate to consider the Respondent’s application for the release of his examination Results, one would have expected that having accepted the resolution of the dispute between the Appellant and the Respondent on the intervention of the Resolution Committee, the Senate of the Appellant ought to have considered the Respondent’s application for the release of his examination Results as soon as the Court of Appeal

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had delivered its Judgment against the Appellant in favour of the Respondent on 8/6/2007. The need for the Appellant to have done so was quite obvious on the evidence on record especially Exhibit ‘A2’ where the Appellant asserted that, there was no disciplinary action taken against the Respondent as he was never suspended, Rusticated nor expelled from the University.
Following the concurrent findings of fact by the trial Court and the Court below justifying the granting of the reliefs sought by the Respondent at the trial Court, the complaint of the Appellant in its first issue that the wrong evaluation of evidence by the Court below has resulted in miscarriage of justice to the Appellant, has no basis whatsoever. The Law is well settled that what constitutes miscarriage of justice varies from case to case depending on the facts and circumstances. To reach the conclusion that a miscarriage of justice occurred, it does not require a finding that a different result necessarily would have been reached in the proceedings. It is enough if what happened is not justice according to law. See State Vs Ajie (2000) 11 NWLR. (P.678) 434 and Ojo Vs Anibire(2004) 10 NWLR (Pt.882) 571 at 583.
In the instant case therefore where the Appellant as defendant at the trial Court pleaded its defence to the claims of the Respondent/Plaintiff against it but failed to lead credible evidence in support of the facts pleaded, the trial Court was justified in finding for the Respondent for the reliefs claimed and the Court below was justified in affirming the Judgment of the trial Court on appeal. See Onyia Vs Oniah & Ors (1989) 1 NSCC 319. There was nothing in the evaluation of evidence by the Court below that resulted in any miscarriage of Justice.
In the result, I also find no merit at all in this appeal which is hereby dismissed. I abide by the order on costs in the lead Judgment.

SULEIMAN GALADIMA, J.S.C.: I had a preview of the lead judgment delivered by my learned brother M.U. PETER-ODILI JSC. I completely agree with his reasons leading to the conclusion that this appeal is devoid of merit and should be dismissed. By way of emphasis however, I would like to comment on the mindboggling decision of the appellant to withhold the respondent’s result of his B.SC Degree in Statistics, without any reasonable official explanation other than, that it was “for administrative and not disciplinary case” for 14years, The respondent has finally found respite. I cannot interfere with the thorough findings of the two courts below based on the evaluation of evidence placed before them.
The courts will not readily and cannot in any disguise, usurp what is appropriately the functions and powers of the Senate , the Council and the Visitor of the University in the selection of their proper candidates for awards of Degrees, Diplomas and Certificates. See SS.6, 7 and 14(2) Caps 117, University of Ilorin Act. LFN Vol, 15, 2004. See also ANYA v. IYAJI (1993) 7 NWLR (Pt.502) 719, MAGIT v. UNIVERSITY OF AGRICULTURE MAKURDI (2005) 19 NWLR (Pt.959) 211. Generally the consideration for an award of such accolades as aforementioned are considered the domestic domain of the Universities. These are elasticated powers that can change or be changed depending on the facts and circumstances of each case. There are, no doubt, some exceptions and this court has made it clear in a plethora of its decisions. In the instant case such exceptions exist. It is clear that the Appellant herein has exhausted all avenues and entreaties to the appellant to release his academic records including the Degree Certificate to which his completed course of study entitles him. Yet the appellant remains adamant in neither releasing his result nor proffering any good and substantial reason for withholding of the Respondent’s academic records since 1998. In the circumstance the courts below could not abdicate their responsibility in ensuring that the appellant abides by the law setting it up. The respondent to my mind, had no choice, but to approach the trial court to seek for redress. He did and he got it.
The learned trial judge made a detailed and comprehensive findings, which cannot be faulted. Consequently, I too affirm the judgment of the court below which upheld the decision and orders of the trial Federal High Court, Ilorin. I abide by the order made on costs, in the leading judgment.

MUSA DATTIJO MUHAMMAD, J.S.C.: I had a preview of the lead judgment of my learned brother Mary Ukaego Peter-Odili JSC just delivered. I imbibe the reasoning and conclusion ably marshalled therein to dismiss the unmeritorious appeal. I abide by the order on costs made by my lord as well.

JOHN INYANG OKORO, J.S.C.: I read in draft the illuminating judgment of my learned brother, Mary Ukaego Peter-Odili, JSC just delivered with which I am in full agreement with both the reasons advanced and the conclusion that this appeal lacks merit and ought to be dismissed. My learned brother has quite efficiently set out the facts and issues in this appeal which he has also resolved admirably. I do not intend to repeat the exercise. I adopt them as mine. I however propose to make a few comments in support of the judgment only.
I am aware that the courts cannot and will not usurp the functions of the Senate, the Council and the Visitor of the University in the selection of their fit and proper candidates for passing and for the award of certificates, degrees and diplomas. See Akintemi V Onwumechili (1985) 1 NWLR (Pt 1) 68, University of Calabar V Esiaga (1997) 4 NWLR (Pt 502) 719, Magit V University of Agriculture Makurdi (2005) 19 NWLR (Pt 959) 211.
However, although the general rule is that consideration for an award of degrees and certificates are in the domestic domain or jurisdiction of the universities, there are however, exceptions. Such exception is as happened in this case. That is to say, where the student has exhausted all avenues and entreaties, and the university is adamant, intransigent, as in neither releasing the result of the student nor giving good, substantial and verifiable reasons for withholding the result, even after the intervention by the visitor of the university, the student is entitled to approach the court for redress. In such circumstance, the court should not shy away from ensuring that the university authority abides by the Law setting up the Institution. Award of degrees and certificates should be done in accordance with the Instrument setting up the university and they should abide by international best practices on the issue. Certainly, it ought not to be on the whims and caprices of the personnel saddled with the responsibility.
The argument by the learned counsel for the appellant that the respondent did not exhaust all avenues of redress before approaching the court did not fly at all. The refusal of the appellant to comply with the directive of its Visitor shows
clearly the level of bias and malice which it exhibited against the respondent. This ought not to be so.
Based on the above comments of mine and the more elaborate reasons adumbrated in the lead judgment, I agree that this appeal is devoid of any scintilla of merit. I also agree that it be, and is hereby dismissed. I abide by the order as to costs.

Appearances

AND

Before Their Lordships

Between

AND

order is drawn up, and in any other case, on the application of the judgment creditor, issue a copy of the order endorsed with a notice in Form 48, and the copy so endorsed shall be served on the judgment debtor in like manner as a judgment summons.
(2) If the judgment debtor fails to obey the order the registrar on the application of the judgment creditor shall issue a notice in Form 49 not less than two clear days after service of the endorsed copy of the order, and the notice shall be served on the judgment debtor in like manner as a judgment summons.”
Order 42 of Cross River State High Court (Civil Procedure) Rules stipulates:-
“2. (1) An application for an order of committal shall be made to the court by motion on notice supported by an affidavit and shall state the grounds of the application.
(2) The notice of motion, affidavit and ground shall be served personally on the person sought to be committed:
Provided that the court may dispense with personal service where the justice of the case so demands.”
At page 20 of the record of proceedings, the affidavit of service shows that the appellant was served through his wife. This no doubt runs counter to the provisions of Order 9 Rule 13 of the Judgment (Enforcement) Rules, Sheriff and Civil Process Law and Order 42 rule 2(2) of the Cross River State High Court (Civil Procedure) Rules which clearly and unequivocally prescribed that service must be personal.

This is not all because the affidavit of service of the hearing notice at page 21 of the records shows that the hearing notice was served on the appellant through his son.
The vital and fundamental nature of service of a court process on an adverse party cannot be over emphasized, as it confers jurisdiction on the court to entertain the matter and failure to serve the process on the party vitiate subsequent proceeding and render them void and gives a right to the party who was served to have the order or judgment subsequently made set aside:-
See Alhaji J. A. Odutola v. Inspector Kayode (1994) 2 SCNJ 21, (1994) 2 NWLR (Pt. 324) 1; National Bank of Nigeria Ltd. v. Guthrie Nigeria Ltd. &Â Â Anor. (1993) 4 SCNJ 1, (1993) 3 NWLR (Pt. 284) 643; Leedo Presidential Motel Ltd. v. B.O.N. Ltd. (1998) 10 NWLR (Pt. 570) 353 SC.

It has been shown that the appellant was not in court when the trial court made the order against him because he was not aware of the proceedings and that there was not a proper service of the court processes on him. This no doubt vitiates the proceedings and renders the whole thing a nullity.
As to the question whether the sentence of one year imprisonment for contempt of court is not unconstitutional and void, section 133(9) of the Criminal Code of Cross River State Cap. 31 prescribes that any person who commits any act of intentional disrespect to any judicial proceeding or to any person before whom such proceeding is being heard or taken is guilty of a simple offence and liable to imprisonment for three months. Section 36(8) of the Constitution of the Federal Republic of Nigeria stipulates that no penalty shall be imposed for a criminal offence heavier than that in force at the time that the offence was committed.
It can be seen that the maximum penalty prescribed by section 133(9) of Criminal Code of Cross River State is three months while the learned trial Judge sentenced the appellant to a term of one year imprisonment which is clearly in total disregard of section 36(8) of the 1999 Constitution which is supreme law of our country. This sentence is therefore unlawful and can not therefore be allowed to stand.

In the final result, I am fully of the view that the appeal is meritorious and ought to be allowed and it is accordingly allowed by me.
I set aside the judgment of Uke J., delivered on 22/11/99 and strike out the contempt proceedings.
The appellant is entitled to costs which I assess and fix at the sum of N3,500.00.

EDOZIE, J.C.A.: The draft of the lead judgment of my learned brother Opene, JCA was made available to me before now. I agree with his reasoning and conclusion for allowing the appeal.
The appeal turns on the execution of the judgment of the court below. It is manifest that after judgment was entered against the appellant, he lodged on appeal thereto and by a motion prayed the court below for a stay of execution pending the determination of the appeal. Until that motion is disposed of, the judgment creditor cannot set in motion the machinery for the execution of the judgment in any form. It was therefore wrong for the court below to have entertained the respondent’s motion for committal without a decision one way or the other of the application for stay of execution and worse still for the motion for committal to have been heard without personal service thereof on the appellant as required by Order 42 of the Cross River State High Court (Civil Procedure) Rules. It is trite law that failure to serve process where service of process is required

is a fundamental vice and a person affected by an order made without service is entitled ex debito justitiae to have the order set aside as a nullity: See Mbadinuju v. Ezuka (1994) 8 NWLR (Pt. 364) 535 at 556; Skenconsult (Nig.) Ltd. v. Ukey (1981) 1 SC 6; Scott-Emuakpor v. Ukavbe (1975) NSCC 435; Food and Commodities Production Group Ltd. v. Aremu (1990) 2 NWLR (Pt. 134) at 563; Obimonure v. Erinosho (1966) 1 All NLR 250 at 252; Leedo Presidential Motel v. B.O.N Limited (998) 10 NWLR (Pt. 570) 353 at 391.

It is also the law that in an appropriate case where it is sought to commit the judgment debtor for disobedience of court order, Order 9 rule 13 of the Judgment (Enforcement) Rules of the Sheriff and Civil Process Act prescribes the procedure to be followed. Under the rule, the registrar of court, on the application of the judgment creditor issues a copy of the order of the court endorsed with a motion in Form 48 and this is served on the judgment debtor and if he fails to obey the order, the registrar on the application of the judgment creditor issues a notice in Form 49 not less than two clear days after service of the endorsed copy of the order and this is also served on the judgment debtor. It is after these procedural requirements have been complied with that a motion for committal can be brought against the contemnor.

These requirements were not complied with in the instant case. Another glaring and serious error in the judgment appealed against is that the appellant was sentenced to one year imprisonment for contempt of court, a term which is far in excess of 3 months imprisonment prescribed by section 133(9) of the Criminal Code of Cross River State Cap. 31. This is in violation of section 36(8) of the 1999 Constitution which provides that no penalty shall be imposed for any criminal offence heavier than the penalty in force at the time the offence was committed.
For the foregoing reasons and those more elaborately discussed in the lead judgment, I allow the appeal with all the consequential orders in the lead judgment.

EKPE, J.C.A.: I agree.

Appeal allowed.

Appearances

AND

Judgment

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C. (Delivering the Leading Judgment): The appellants were plaintiffs at the trial Customary Court (CC) Akwuzu, Anambra State in Suit No.

CCA/2/92: Alexander Umeano & Ors Vs Albert Anaekwe & Anor wherein they sought the following reliefs: (a) Defendant to remove the Iyi-Oji Juju, which was planted by the defendants’ great-great-grandfathers on Obinuno Land of the Plaintiffs. (b) Defendants to release the ownership of Obinuno Land of the Plaintiffs. (c) An order of Court restraining the Defendants, their servants, privies and agents from further trespass into the said land of Obinuno situate at Ifite Village, Akwuzu.

​Before the trial commenced, the respondents raised an objection to the participation of the president of the Court in the proceedings on grounds of bias. The objection was overruled and the Court proceeded to hear and determine the case. Judgment was entered in the appellants’ favour in terms of reliefs (b) and (c). Relief (a) was refused. Despite the order restraining them from further trespass on the land, the respondents again trespassed into the land in dispute. The appellants therefore brought contempt proceedings against them before the same Customary Court.

Notwithstanding, the earlier objection seeking the President’s disqualification from the panel, he presided over the contempt proceedings. The application seeking the respondents’ committal for contempt was refused. In the course of ruling on the contempt proceedings, the president made certain orders that materially altered the judgment it had earlier given. In its ruling, the Court held that the respondents were prohibited from entering Iyi-Oji Juju bush to harvest any trees with the exception of the juju priest.

The Court further held that “the applicants (appellants herein) may enter the juju bush, which is on their land to take anything but with the consultation of the juju priest – Court did not give anybody authority to enter and clear the Iyi-Oji bush.” This was clearly an about-turn from the refusal of relief (a) in the original judgment.

​Being seriously aggrieved by the decision of the Customary Court, the appellants applied to the High Court of Anambra State, sitting at Otuocha for an order of certiorari to remove into the Court for the purpose of being quashed, the judgment, orders and all subsequent post judgment proceedings in respect of Suit No. CCA/2/92, on the ground of bias and/or real likelihood of bias.

The High Court found that the allegation of bias or likelihood of bias as regards the judgment of the Customary Court delivered on 17/3/92 was unfounded and therefore declined the invitation to tamper with it. However, the Court held that the contempt proceedings and the ruling delivered therein on 6/5/92 were null and void and of no effect. The said proceedings and ruling were accordingly quashed.

The present respondents were dissatisfied with the order of certiorari granted by the High Court and appealed to the lower Court. On 21/7/97, the Court allowed the appeal and set aside the judgment of the High Court on the grounds, inter alia, of breach of the rules of fair hearing in that the respondents were not heard before the judgment was entered. The Court did not make any consequential order.

​The appellants therefore, applied to the Court to make a consequential order, to wit, that the application for an order of certiorari be re-heard by the High Court. The appellants were granted leave to bring a fresh application for certiorari. The respondents raised a preliminary objection challenging the fresh certiorari proceedings on the ground that the proceedings were incompetent, having been filed out of time, contrary to the provisions of Order 37 Rule 4 (2) of the 1988 High Court Rules of Anambra State. The preliminary objection was dismissed.

The application for an order of certiorari was granted in part, to the effect that the Customary Court exceeded its jurisdiction when it purported to vary or review its earlier final judgment.

The respondents were again dissatisfied with the decision of the High Court and appealed against it to the Court below. Both parties formulated three issues for determination. The first issue on either side was whether the High Court had jurisdiction to entertain an application for an order of certiorari after the six-month limitation period provided for in Order 37 Rule 4 (2) of the High Court Rules Cap. 66 Laws of Anambra State, 1988, had lapsed.

​The Court, in a considered judgment, delivered on 22/4/2008, resolved the appeal in the respondents’ favour on issue 1. The Court held that Order 37 Rule 4 (2) provides for a limitation period of six months within which to apply for an order of certiorari and that the appellants’ fresh application having been filed outside the six-month period was incompetent and could not confer jurisdiction on the High Court. The appeal was allowed. The ruling of the High Court in Suit No. OT/MISC/4/97 delivered on 23/6/2004 was set aside.

The appellants are aggrieved by this decision and have appealed to this Court in a bid to finally lay this matter to rest vide their notice of appeal filed on 22/9/2008 containing two grounds of appeal. The extant notice of appeal is the Amended Notice of Appeal filed on 29/10/21 and deemed filed on 2/11/21, the day the appeal was heard. It also contains two grounds of appeal.

At the hearing of the appeal, G.B. Obi Esq., adopted and relied on the appellants’ brief filed on 16/12/2009 and Reply Brief filed on 9/6/2017 in urging the Court to allow the appeal. Sir Ejike Ezenwa, SAN, adopted and relied on the Respondents’ Amended Brief of Argument filed on 27/2/2016 in urging the Court to dismiss the appeal.

​The appellants identified a single issue for determination thus: “Whether the Court of Appeal was right when it held that in view of the provisions of Order 37 Rule 4 (2) of the High Court Rules 1988 of Anambra State, the High Court lacked the jurisdictional competence to have granted the application for leave for certiorari which was filed after six months from the date of the proceedings of the Customary Court, Akwuzu.”

Interestingly, the respondents have formulated four issues from the two grounds of appeal contained in the Amended Notice of Appeal. As far back as 1990, this Court in Egbe vs Alhaji & Ors (1990) 3 SC (Pt. III) 63 @ 109, per Karibi-Whyte, JSC stated what is required when formulating issues for determination. His Lordship stated, inter alia: “I think it is now well understood in the appellate Courts that the formulation of issues for determination in the appeal must be consistent and fall within the scope of the grounds of appeal filed.

The issues cannot be formulated to be wider than the grounds of appeal from which they derive their existence.”(Emphasis mine) In Leedo Presidential Hotel Ltd. Vs B.O.N. (Nig) Ltd. (1993) 1 NWLR (Pt. 269) 334 @ 347 A – C it was held thus: “The essence of formulation of issues is to narrow the relevant points in issue. Since the issues must arise from grounds of appeal, they are meant to encompass all the grounds of appeal, thus a single issue should contain the points raised in one or more grounds of appeal.

In other words, it is the grounds of appeal that should be contracted to form the issues for determination. The rule is that a number of grounds may raise a single issue and not the reverse.”

The appellant’s lone issue is distilled from the two grounds of appeal in the Amended Notice of Appeal. The respondents’ Issue (a) is in pari materia with the appellants’ issue, also distilled from the two grounds of appeal. In the absence of a cross appeal, the respondents’ issues (b), (c) and (d), not having been derived from any ground of appeal, are incompetent and hereby struck out. The appeal shall therefore be determined on the appellants’ lone issue.

Appellants’ Submissions It is argued on behalf of the appellants that the lower Court in construing the effect of Order 37 Rule 4 (2) of the High Court Rules, read the provision in isolation without considering the provisions of Rule 4 (1). It is contended that, had the Court read the two Rules together, it would have reached a different conclusion. The provisions of Order 37 Rule 4(1) and (2) were set out in full in paragraph 4.03 at page 9 of the Appellants’ brief.

Learned counsel submitted that upon a literal reading of the provisions of Order 37 Rule 4 (2), it is clear that the six months period prescribed therein is directly related to and complementary to the provisions of Rule 4 (1). He submitted that the six months period in the words of Sub-rule 4 (2) is “for the purpose of Rule 1” i.e. Sub-rule 4(1). He submitted further that both sub-rules must be read together to determine whether the six-month period provided for in Sub-rule 4(2) was intended to be a statutory limitation of the time for bringing an application.

He submitted that in the interpretation of statutes, the Court is concerned with the intendment of the lawmaker. He argued that a piecemeal approach to the interpretation of a statute is bound to lead to absurdity, therefore, the provisions must be considered as a whole and broadly, in order to ascertain the object it was intended to serve and in order not to defeat that intention. He referred to Mobil Oil Nig. Plc Vs IAL 36 INC. (2000) 6 NWLR (Pt. 659) 146 @ 168 D – E.

He submitted that upon a composite reading of both sub-rules, Sub-rule (2) does not provide for a limitation of time for bringing an application for judicial review. He submitted that upon a literal interpretation of Sub-rule (1), rather than prohibiting the making of an application for judicial review, it gives the Court the discretion to refuse to grant the application, where there is undue delay, depending on the facts and circumstances of the particular case.

He argued that the provision merely imposes an additional burden on the applicant to satisfy the Court why its discretion should be exercised in its favour. He submitted that in the instant case, the appellants duly explained the reason for the delay in paragraphs 20 – 26 of the affidavit in support of the application for leave at pages 2 – 6 of the record. He submitted that if the lawmakers intended the provision to have a limiting effect, it would have been so stated in clear terms.

He argued that the use of the word “may” in Sub-rule 4 (1) shows that the intention is to give the Court a discretion where the period stated in Sub-rule 4 (2) has elapsed. On the interpretation of the word “may,” he referred to Edewor Vs Uwegba & Ors (1987) 2 SC 49 @ 102 – 103.

On the need to construe statutory provisions broadly, he referred to: Minister of Internal Affairs Vs Shugaba (1982) 2 NCLR 915 @ 972. He submitted that a strict interpretation as that given by the Court below would have the effect of depriving or restricting a citizen’s access to Court. He referred to: Utih vs Onoyivwe (1991) 1 SCNJ 25 @ 63. On the principles to guide the Court in the interpretation of statutes and avoiding a narrow or strict interpretation, he referred to Nwosu Vs Imo State Environmental Sanitation Authority & Ors (1990) 4 SCNJ 97 @ 120 – 121, per Nnaemeka-Agu, JSC.

He urged the Court to allow the appeal.

Respondents’ Submissions The respondents’ submissions in respect of the sole issue for determination in this appeal can be found in paragraphs 4.01 to paragraph 4.19 at Pages 6 – 12 of the Amended Respondents’ Brief. In view of my earlier finding that issues (b), (c) and (d) do not arise from the Amended Notice of Appeal, the submissions in respect thereof in paragraphs 4.20 to 4.39 at Pages 12 – 21 of the briefs are discountenanced.

Learned counsel submitted that Order 37 Rule 4 (2) provides for a six-month limitation period, after which any application for leave to appeal for judicial review would be incompetent and the Court would lack jurisdiction to entertain it. He argued that the Court ought to have considered the competence of the Court to assume jurisdiction as a preliminary issue before delving into the merit of the application. He submitted that the issue of jurisdiction was raised before the trial High Court.

He contended further that there is no provision for extension of time within which to commence certiorari proceedings outside the six-month statutory period and that it is immaterial whether or not the appellants mentioned the cause of the delay in their affidavit in support of the application for leave.

​He interpreted the provision of Order 37 Rule 4 (1) of the High Court Rules to mean that, leave to commence certiorari proceedings will not be granted outside the stipulated time, as it would cause substantial hardship. In other words, that the Court has no discretion to exercise once the prescribed period has lapsed. He also argued that the trial Court ought to have declined jurisdiction, having become aware that the matter had been determined by the Court of Appeal.

Relying on Okafor Vs Ukadike (2009) 1 NWLR (Pt. 1122) 259, he submitted that in the absence of jurisdiction, there was a defect in the Court’s competence to adjudicate and that in the circumstances, the proceedings are a nullity, no matter how well conducted.

Appellants’ Reply on Points of Law In their reply on points of law, it is argued on behalf of the appellants that effect of the judgment of the Court of Appeal setting aside the first application for an order of certiorari on the ground that there was a breach of the appellants’ right to fair hearing, is that the entire proceedings and the judgment of the High Court thereon, is a nullity, and therefore, as if it never existed. Learned Counsel referred to Omoniyi Vs Alabi (2015) 4 NWLR (Pt. 1456) 572 @ 593 – 595.

It is further argued that in the circumstances, the proceedings and ruling in respect of the application for certiorari arising from Suit No. CCA/2/92, which is the subject of this appeal is the only application, properly so called. It is also submitted that there was no earlier decision on the merits, thus the trial Court could not be said to have sat on appeal over a decision of the Court of Appeal.

Resolution I deem it appropriate to commence by considering the contention of learned counsel for the appellants that the trial Court sat on appeal over the decision of the Court of Appeal. There can be nothing further from the truth. I had earlier in this judgment summarised the salient facts that gave rise to the instant appeal. The ruling of the learned trial Judge in respect of the contempt proceedings delivered on 6/5/92, was set aside by the lower Court on 21/7/97 for breach of the rules of fair hearing.

There is a plethora of authorities of this Court on the effect of a breach of the right to fair hearing. It is fundamental. It is a breach of one of the twin pillars of natural justice, “audi alteram partem,” meaning, “let the other side be heard”, the other being “nemo judex in causa sua” meaning “a person should not be a judge in his own cause.” A denial of fair hearing renders the affected proceedings and any order, ruling or judgment therein, null and void. See: Adigun Vs A.G.

Oyo State (1987) 1 NWLR (Pt. 53) 678; Salu Vs Egeibon (1994) 6 NWLR (Pt. 348) 23 @ 44; Bamgboye Vs Unilorin (1999) 10 NWLR (Pt. 622) 290 @ 333; NUT, Taraba State & Ors Vs Habu & Ors (2018) LPELR – 44057 (SC) @ 13 – 14 D – A; Zenith Plastics Industries Ltd. Vs Samotech Ltd. (2018) LPELR 44056(SC) @ 13 – 14 D – F.

On the legal effect of an act being declared null and void, it was held in Ladoja Vs INEC (2007) 12 NWLR (Pt. 1047) 115; (2007) LPELR – 1738 (SC) @ 39 F -G: “Much consideration was given by the trial Judge to the fact that the 1st defendant/appellant “occupied the throne of Odofin of Ilishan-Remo de facto from March 1981 up to 7 December 1989.” With profound respect to the learned trial Judge, I think he was, without realizing it, swimming in a deep sea.

When an appointment is declared null and void, all it means is that the appointment was never made and all acts of the purported appointee when he de facto held the appointment are unlawful, null and void and of no effect. “The result of a decree of nullity of marriage is that not only are the parties not now married but they never were.” – per Russel, J in Re Wombwell’s Settlement (1922) 2 CD 298 at P. 305…”

In effect, what I am trying to say, is that the appellant’s learned counsel was quite correct when he argued that the issue of the trial Court sitting on appeal over a decision of the Court of Appeal, or that it ought to have declined jurisdiction upon becoming aware that the Court of Appeal had given a decision in the matter, did not arise. The proceedings and decision having been declared null and void, there was no subsisting judgment on the merit in respect of the matter.

I now proceed to consider the merit of the appeal. The issue in contention is the correct interpretation of Order 37 Rule 4 (1) & (2) of the High Court Rules of Anambra State, 1988.

​There are certain settled principles that guide the Court in the interpretation of statutes. Generally, statutory provisions must be interpreted in the context of the whole statute and not in isolation. They must be interpreted in a manner that is most harmonious with its scheme and general purpose. Furthermore, where the subject matter being construed relates to other sections (or subsections) of the same statute, they must be read, considered and construed together as forming a composite whole. See: General Cotton Mill Ltd. Vs Travellers Palace Hotel (2018) 12 SC (Pt.

II) 106 @ 130 lines 14 -35; 168 lines 20 – 31. See also: Obi Vs INEC (2007) 7 SC 268; Akpamgbo-Okadigbo & Ors. Vs Chidi & Ors. (2015) 3 – 4 SC (Pt. III) 25; Nobis-Elendu Vs INEC (2015) 6 – 7 SC (Pt. IV) 1.

Specifically, there are three main rules of statutory interpretation: (a) the Literal Rule: where the words are plain and unambiguous, they must be given their natural and ordinary meaning, unless to do so would lead to absurdity. The plain words used by the legislature provide the best guide to their intention. See:Adewumi & Anor. Vs A.G. Ekiti State (2002) 2 NWLR (Pt.751) 474; A.G.

Lagos State Vs Eko Hotels & Anor. (2006) 18 NWLR (Pt.1011) 378; Ojokolobo Vs Alamu (1987) 3 NWLR (Pt.61) 377; Sani Vs The President FRN & Anor (2020) LPELR – 50990 (SC) @ 22 – 23 D -A. (b) The Golden Rule: Where the use of the Literal Rule would lead to absurdity, repugnance or inconsistency with the rest of the statute, the ordinary sense of the words may be modified so as to avoid the absurdity or inconsistency, but no further. See: General Cotton Mill Ltd. Vs Travellers Palace Hotel (supra); Grey Vs Pearson (1857) 6 HLC 61 @ 106; PDP & Anor Vs INEC (1999) 7 SC (Pt.

II) 30; Saraki Vs FRN (2016) 1 – 2 SC (Pt. V) 59. (c) The Mischief Rule: Formulated and laid down in Heydon’s Case 3 Co. Rep. 7a @ 7b as follows: (i) “What was the common law before the making of the Act? (ji) What was the mischief and defect for which the common law did not provide? (iii) What remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth? and (iv) The true reason of the remedy; and then the office of all the judges is always to make such construction as shall suppress the mischief and advance the remedy …”

The issue in contention is the proper interpretation of Order 37 Rules 4 (1) and (2) of the High Court Rules, which provide: “4 (1) Subject to the provisions of this rule, where in any case the Court considers that there has been undue delay in making an application for judicial review or, in a case to which Rule 2 applies, the application for leave under Rule 3 is made after the relevant period has expired, the Court may refuse to grant- (a) leave for the making of the application or (b) any relief sought on the application, if in the opinion of the Court the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration. (2) In the case of any application for an order of certiorari to remove any judgment, order, conviction or other proceedings for the purpose of granting it, the relevant period for the purpose of Rule 1 is six months after the date of the proceedings.” (Emphasis mine).

The appellants’ contention is that the above provisions provide for a limitation period after which no application for judicial review can be made or granted. The effect of a statute limiting the period within which certain actions can be brought to Court is that failure to bring the action within the time stipulated by the statute renders the action invalid and the Court without jurisdiction to hear the action or claim. An action or application filed outside the prescribed period is said to be statute-barred.

See: Abubakar Vs Michelin Motor Services Ltd. (2020) LPELR-50837 (SC) @ 6 E – G; Egbe Vs Adefarasin (1987) 1 NWLR (Pt.47) 1; Hassan Vs Aliyu (2010) 17 NWLR (Pt.1223) 547. I adopt the literal rule in interpreting the provisions.

The first part of Sub-rule 1 above, provides for two scenarios in which the Court MAY refuse to grant leave to make the application for judicial review or any relief on the application: (a) where the Court considers that there has been undue delay in making the application; and (b) in a case to which Rule 2 applies, where the application is made after the relevant period has expired. The relevant period referred to is six months. Whether or not the use of the word “may” in a statute should be construed as being mandatory or discretionary depends on the context in which it is used.

It was held in: Adesola Vs Abidoye (1999) 14 NWLR (Pt.637) 28 @ 56 C – E, per Karibi-Whyte, JSC: “The construction of the word “may” in provisions of statutes has always raised difficulties … because the word “may” assumes a technical meaning depending on the intendment of the statutory provision in which it is used.

Although the etymological meaning of “may” is permissive and facultative, and seldom can be “must” and imperative, where there is anything in the provision that makes it [a] duty on the person whom it is given to exercise it, then it is imperative.” Having carefully examined the provisions of Rule 4 (1) above, I am of the considered view that the use of the word “may” therein gives the Court the discretion to grant or refuse an application for leave to apply for judicial review or to grant any relief sought on the application.

The basis for my reasoning is that Rule 4 (1) (b) provides that where the application is made after the expiration of the stipulated period, the Court, in deciding whether or not to grant leave or any relief sought, must consider whether granting the relief would be likely to cause substantial hardship to or substantially prejudice the rights of any person or would be detrimental to good administration. ​Sub-rule (2) provides that in an application for an order of certiorari to remove any judgment, order, conviction or other proceeding into the Court for the purpose of quashing it, the relevant period for the purpose of Rule 1 is six months.

In other words, as rightly submitted by learned counsel for the appellants, where an application is brought after six months, the Court has the discretion to grant or refuse the application, taking the factors in Rule 4 (1) (b) into consideration.

At page 147 of the record, the Court below considered Sub-rule (2) in isolation and held, inter alia: “The effect of this provision is that leave shall not be granted to apply for an order of certiorari to remove any judgment, order, conviction or other proceedings for the purpose of it being quashed, unless the application for leave is made not later than six months after the date of proceedings or such later period … It could be seen that the application leading to this appeal was no doubt made well outside the six months period allowed by the Rules for applying [for] such relief.

The relief was nonetheless granted by the lower Court. The respondents did not seek extension of time. The lower Court, in view of Order 37 Rule 4 (2) above, could not therefore grant the prayer. Failure on the part of the applicants to show that the granting of the leave has caused substantial hardship to them or in any way prejudiced their rights, could not confer on the lower Court a power which was no longer its to invoke.” Contrary to the finding of the lower Court above, Order 37 Rule 4 is not expressed in absolute terms as found in most limitation statutes.

In keeping with the general object of statutory interpretation, both subsections of the Rule must be read together to ascertain the intention of the legislature. It is quite evident that their Lordships read Rule 4 (2) in isolation without considering it alongside Sub-rule 1 and particularly, Sub-rule 1 (b). Had they done so, I have no doubt that they would have come to a different conclusion. Having regard to the peculiar circumstances of this case, in which the earlier proceedings were declared a nullity, it was within the trial Court’s discretion to grant the application.

Furthermore, as rightly pointed out by the appellants at the Court below, the respondents failed to show that the Court’s discretion was wrongly exercised.

​In conclusion, I resolve the sole issue in this appeal in the appellants’ favour. The appeal is meritorious and it is hereby allowed.

The judgment of the lower Court delivered on 2nd July 2008 is hereby set aside. The judgment of the High Court of Anambra State, sitting at Otuocha delivered on 23/6/04 in Suit No. OT/MISC.4/97, quashing the proceedings, ruling and order of the Akwuzu Customary Court in respect of the motion dated 13/4/92 in suit no. CCA/2/92: Alexander Umeano & 2 Ors. Vs Albert Anaekwe & Anor., is hereby affirmed. The parties shall bear their respective costs in this appeal.

EJEMBI EKO, J.S.C.: I had the privilege of reading before now (in draft form) the judgment just delivered in this appeal by my learned brother K. M. O. KEKERE-EKUN, JSC. It represents my views in the appeal. Accordingly, I hereby adopt it, including all the orders made therein.

​Perhaps I should add that Section 274 of the Constitution empowers the Chief Judge of Anambra State to make rules regulating the practice and procedure of the High Court of the State. Order 37 Rule 4 of the extant Rules of Anambra State High Court prescribing, inter alia, how application for judicial review shall be brought was made within the powers conferred on the Chief Judge by the Constitution.

Order 37 Rule 4, no doubt limitation provision made pursuant to Section 44(2)(i) of the Constitution permitting the making of “any general law relating to limitation of actions”, had conferred on trial Court judicial discretion as regards the limitation. The Appellant, having shown that the discretion, complained of, was not wrongly exercised is entitled to judgment. Appeal allowed.

MOHAMMED LAWAL GARBA, J.S.C.: I agree with the views and conclusion on the sole issue submitted by the Appellants for decision by the Court, as contained in the lead judgment delivered by my learned brother, K. M. O. Kekere-Ekun, JSC.

As clearly demonstrated in the authorities of this Court on the interpretation of statutes (including subsidiary legislations such as the Rules of Court), subsections/sub-Rules of a Section/Rule which all deal with the same subject matter, are required to be considered and constructed; one in relation to the other, together and holistically in order to bring out the real intention of the Legislature in making the provisions. The provisions are never to be considered and interpreted in isolation of each other and without regard to the subject matter they together, provide for. See Adejumo v.

Gov., Lagos State (1970) 1 All NLR, 183, Onochie v. Odogwu (2006) 6 NWLR (pt. 975) 65,Chime v. Ude (1996) 3 NWLR (pt. 461) 379, Afrotech Services Nig. Ltd. v. M.A. & Sons Ltd. (2002) 12, SCNS, 298, Unilife Dev. Co. v. Kolu Adeshigbin & Ors (2001) 2 SCNJ, 116, Adetoun Oladeji Nig. Ltd. v. Nig. Breweries, Plc. (2006) 1 SCNJ, 375, Agbareh v. Mimra (2008) 1 SCNJ, 409.

In this appeal, a consideration and construction of the provisions of Order 37 Rule 4 (1) and (2) of the 1988 Rules of the Anambra State High Court, together and in the context of the subject matter provided therein, would undoubtedly reveal that the trial Court was vested with a judicial discretion on whether to grant or refuse an application for leave to apply for an order of certiorari even after the expiration of the six (6) months period stipulated in Sub-rule (2).

​For the above and the more detailed reasons set out in the lead judgment, I also find the appeal meritorious and allow same in the terms thereof.

IBRAHIM MOHAMMED MUSA

SAULAWA, J.S.C.: The reasoning thereby postulated in the judgment just delivered by my learned brother, the Hon. Justice K. M. O. Kekere-Ekun, JSC, to the conclusive effect that the present appeal is meritorious, is very much in accord with mine.

Hence, without much ado, I adopt the reasoning and conclusion in question as mine, allow the appeal and accordingly affirm the judgment of the High Court of Anambra State delivered on 23/06/2004 in Suit No. OT/MISC.4/97.

TIJJANI ABUBAKAR, J.S.C.: My lord and learned brother, KEKERE-EKUN, JSC granted me the privilege of reading in draft the comprehensive leading Judgment prepared and rendered in this appeal. I am in total agreement with the reasoning and conclusion and adopt the judgment as my own, I have nothing extra to add. I endorse all consequential orders made therein including the order on costs.

Judgment

UCHECHUKWU ONYEMENAM, J.C.A. (Delivering the Leading Judgment): The National Industrial Court of Nigeria Per Sanusi Kado, J., delivered a judgment on 25th October, 2019 in suit number: NICN/ABJ/31/2016 wherein the learned trial Judge entered judgment in favour of the 1st and 2nd Respondents. The 1st and 2nd Respondents herein at the trial Court instituted the action by an Originating Summons filed on 27th January, 2016.

By an order of Court that pleadings be filed, the 1st and 2nd Respondents converted the Originating Summons into a Complaint wherein they sought inter alia; an order nullifying the expulsion of the 1st Respondent from the union; an order that the office of the president of the Appellant be declared vacant and that the 2nd Respondent be appointed to that office pending when elections would be conducted, etc. ​The 1st and 2nd Respondents also filed a motion for interlocutory injunction to restrain the Appellant from holding a National Delegates Conference and from conducting an election into executive positions of the Appellant at the said conference as the same will allegedly render the judgment of the Court when delivered nugatory.

The Court ordered that no party should do anything to affect or jeopardize the hearing and determination of the application. The Appellant with some of her executives in disobedience to the Court order on 25th and 26th January, 2018; conducted a National Delegates conference wherein it conducted elections and appointed new executives for the Appellant and amended the constitution of the Appellant.

Subsequently, the Court on 6th February, 2018 delivered its ruling which restrained the Appellant from holding the National Delegates Conference and from conducting elections pending the determination of the substantive suit. Meaning, the Appellant having already held the National Delegates Conference and elected new executives rendered the ruling of the trial Court on the interlocutory application nugatory.

Aggrieved by this act of the Appellant, the 1st and 2nd Respondents brought an application seeking for an order nullifying the election of the Appellant and a committal order against the Appellant. Consequently, the learned trial Judge nullified the Delegates Conference and election of the Appellant held while there was a subsisting valid Court Order and ordered for summons to be issued against the president of the Appellant to appear before the Court to show cause why he should not be sanctioned by the Court for disobedience of a Court order.

The Appellant and his President filed an Interlocutory appeal with Appeal number CA/A/1131/2018 against the said Court ruling delivered on 1st November, 2018, through a law firm led by Anthony Idikwu Ebah Esq. The trial Court delivered its judgment on 25th October, 2019 and held as follows: “…From the foregoing, as it is, and for the reasons given the Claimants have succeeded only in part and failed in some part of their claims. For proper appreciation and clarity, the orders of the Court are as follows: 1.

An order is hereby granted nullifying the expulsion of the 1st Claimant from the 2nd Defendant. 2. An order is hereby granted reinstating the 1st Claimant back to the membership of the 2nd Defendant with all the rights and privileges of a member. 3. Reliefs 3, 4, 5, 7 and 8 are hereby refused and same dismissed for lack of proof. 4.

An order is hereby made for the 3rd Defendant not to recognize and register any amendment of the Constitution of the 2nd Defendant or order to allow any amendment of the 2nd Defendant’s Constitution in order to allow any official of the 2nd Defendant to continue to act for the 2nd Defendant after his or her due retirement from the Civil Service of Nigeria, whether State or Federal The case file is hereby returned to the honourable president of the Court for appointment of Public Trustee in line with Order 59 of the Rules of this Court. Judgment is entered accordingly.

I make no order as to cost.” Dissatisfied with the judgment of the trial Court, the Appellant approached this Court via an amended Notice of Appeal dated 10th March, 2021 and filed on the same date but deemed properly filed and served on 26th March, 2021. The learned Counsel on both sides filed relevant processes as required by the rules of the Court, the Appeal was then heard on 2nd December, 2021. Olumide Philips, Esq., appeared with I. D. Bob Manuel Esq., for the Appellant. Chinyere Moneme, Esq., appeared with Mukeng Nathan, Esq., for the 1st Respondent.

Mohammed Ndarani Mohammed, SAN appeared with Michael Eleyinmi, Esq., Clement Chukwuemeka Esq., Stephen Apeh Esq., Uchenna Chukwuemeka, Esq., and Raphael Ashwe Esq., for the 2nd Respondent. The 3rd Respondent was not represented. The Appellant applied to withdraw the appeal against the 3rd Respondent, it was granted. The name of the 3rd Respondent was accordingly struck out and the 4th Respondent became the 3rd Respondent. Paul Kasim Esq., appeared with Daniel Akinwole Esq., for the 4th Respondent, now the 3rd Respondent. The appeal was then argued.

Olumide Philips, Esq., for the Appellant adopted and relied on the Appellant’s brief of argument field on 10th March, 2021 but deemed properly filed and served on 26th March, 2021 in praying the Court to allow the appeal. The Appellant donated 4 issues for determination to wit: 1.

“Having regard to the combined provisions of Section 36 (1) of the Constitution of the Federal Republic of Nigeria 1999, whether the Court below breached the Appellant’s fundamental right to fair hearing when it refused the Appellant leave to reopen its defence despite being informed that its erstwhile Counsel was not a qualified legal practitioner. 2. “Whether the lower Court was clothed with the requisite jurisdiction to make consequential orders for the holding of a fresh National Delegates Conference for the appellant, subject of a pending Appeal in Appeal No.

CA/A/1131/2018 touching on the same issue?” 3. “Having regard to the facts and law, whether the lower Court has the power to grant a consequential order not arising from the principal claims before it?” 4.

“Whether the lower Court was right to base its decision to order for the appointment of a Public Trustee to oversee the administration and finances of the Appellant on the provisions of Section 19 of the National Industrial Court Act, 2006 and Order 59 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 rather than Section 19(1) and (2) of the Trade Union Act, a specific statute governing trade union activities? Chinyere Moneme, Esq., for the 1st Respondent adopted and relied on the 1st Respondent’s brief filed on 16th June, 2021 in urging the Court to dismiss the appeal.

The 1st Respondent formulated 4 issues for determination as follows: 1. Whether a defendant who neglected to take advantage of ample opportunities given to it by a Court to open its case and lead evidence in support of its pleadings can turn around to complain that it has been denied the right to fair hearing because his application to reopen his case on the mere assertion that his lawyer was a fake lawyer was refused? 2.

Whether reference in the final judgment of a Court to the legal effect of its interlocutory order made in same suit to restore the parties to the status quo ante lite means that the Court has sat on appeal in respect the said order and whether the mere entry of an appeal against that interlocutory order operates as a stay of proceedings? 3.

Whether Section 19 of the National Industrial Court Act, 2006, Order 59 Rule 1 of the National Industrial Court Rules 2017, and the inherent jurisdiction of Courts under the 1999 Constitution (3rd Alteration Amendment) imbues the National Industrial Court with power to suo motu appoint a public trustee in an intra-union dispute before it and whether the said power of the National Industrial Court can be exercised to do substantial justice between the parties? 4.

Whether there is a conflict between the provisions of Section 19(1) and (2) of the Trade Unions Act and the provisions of Section 19 of the National Industrial Court Act 2006 & Order 59 of the National Industrial Court (Civil Procedure) Rules 2017 and whether the lower Court was right to base its decision to appoint a trustee to oversee the administration and finances of the Appellant on Section 19 of the National Industrial Court Act 2006 and Order 59 of the National Industrial Court (Civil Procedure) Rules 2017.

Mohammed Ndarani Mohammed, SAN for the 2nd Respondent adopted and relied on the 2nd Respondent’s Brief filed on 24th June, 2021 in urging the Court to dismiss the appeal. The 2nd Respondent submitted 4 issues for determination to wit: 1. Whether from the circumstances of this case and conduct of the Appellant at the trial Court, it can be rightly concluded that the applicant was not accorded fair hearing by the trial Court. 2.

Whether from the circumstances of this case, it can be validly concluded that the trial Court based its judgment on a ruling which is subject to appeal in Appeal No: CA/A/1131/2018, and thus occasioned a grave miscarriage of justice, putting into consideration the prayers of the Claimants in their complaint and the fact that the said Appeal No: CA/A/1131/2018, which is interlocutory was filed by a lawyer alleged to be fake by the appellant at the trial Court. 3.

Whether the consequential order made by the trial Court in this case by way of appointment of a Public Trustee to manage the administration and affairs of the Applicant as ordered by the trial Court in the face of the emptiness in the leadership of the Appellant, does not flow from the principal claims of the Claimants in their Complaint, putting into consideration the reliefs of the Claimants, the circumstances of the case, visa vis the provisions of Order 59 Rule 1 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 and the Inherent jurisdiction of the Court to do justice at all times. 4.

Whether the appointment of a Public Trustee by the President of the National Industrial Court pursuant to Section 19 of the National Industrial Court Act 2006 and Order 59 Rule 1 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 has occasioned miscarriage of justice to the Appellant and also in conflict with Section 19(1) & (2) of the Trade Union Act. Paul Kasim Esq., for the 3rd Respondent adopted and relied on the 3rd Respondent’s Brief filed on 17th June, 2021 in urging the Court to allow the appeal. The 3rd Respondent submitted 3 issues for determination to wit: 1.

Whether the lower Court below breached the Appellant’s constitutional right of fair hearing entrenched in Section 36(1) of the 1999 Constitution when it refused the Appellant leave to reopen its defence despite being informed that its erstwhile counsel was not a qualified legal practitioner? 2. Whether the lower Court was clothed with the requisite jurisdiction to make the consequential orders for the holding of a fresh National Delegates Conference for the Appellant, an issue that is the subject of a pending Appeal in Appeal No. CA/A/1131/2018. 3.

Whether having regard to the facts of this case, the provision of National Industrial Court Act and Rule of National Industrial Court, relied on by the lower Court, the lower Court was right in granting the consequential orders appointing a public trustee to manage the finance and affairs of the Appellant and conduct a fresh National Delegates Conference for the Appellant, a relief not arising from the principal claim, before it? From the grounds of appeal, I view that the four issues submitted by the Appellant being the initiator of the appeal will satisfactorily determine this appeal.

I shall proceed to determine the appeal based on the said 4 issues.

SUBMISSIONS ON ISSUE 1 “Having regard to the combined provisions of Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999, whether the Court below breached the Appellant’s fundamental right to fair hearing when it refused the Appellant leave to reopen its defence despite being informed that its erstwhile counsel was not a qualified legal practitioner?” Olumide Philips, Esq., on this issue submitted that a Court is obligated to extend the period prescribed for doing an act if it is shown to the satisfaction of the Court that the failure by a party to do the act within the period prescribed was caused by the negligence or inadvertence of his counsel and that the sins of counsel should not be visited on the litigant.

He relied on OSINUPEBI V. SAIBU (1982) 7 SC 104; DOHERTY V. DOHERTY [1964] 1 ALL NLR 299; AHMADU V. SALAWU [1974] 11 SC 43; BOWAJE V. ADEDIWURA (1976) 6 SC 143; IROEGBU V. OKWORDU (1990) 6 NWLR (PT. 159) 643 AT 669B-F; OTAPO V. SUNMONU [1987] 2 NWLR (PT.58) 587; LONG JOHN V. BLAKK (1998) 5 S.C.N.J 81; MUFUTAU AKINPELU V. EBUNOLA ADEGBORE [2008] 10 NWLR (PART 1096) 531, 555 F-G.

He submitted that the trial Court breached the Appellant’s right to fair hearing when it refused to allow the Appellant’s re-open their case and enter proper defence even after informing the Court that its lawyer was fake. He cited CHUKWU V. OMEHIA [2013] 7 NWLR (PT. 1354) PG. 463, 479D AND N.I.W.A. V. SHELL PETROLEUM DEVELOPMENT COMPANY NIGERIAN LTD. [2008] 13 NWLR (PT. 1103) 48.

The learned counsel also contended that the ruling of the trial Court granting leave to the Appellants to file further affidavit and written address in support of the motion to reopen Appellant’s case amounts to the Court agreeing with the Appellant and therefore cannot turn around to hold otherwise. ​ Olumide Philips, Esq., submitted that the application to re-open Appellant’s defence below was brought in good faith to ensure that the Appellant was heard in the matter and its defence properly placed before the Court to be decided on its merits and thus should be granted, unless it can be shown to have been filed malafide or when it will cause injustice to the other party.

He relied on NWANKWO V. NWANKWO [1993] 6. S.C.N.184 and urged the Court to resolve the issue in favour of the Appellants and allow the appeal. Chinyere Moneme, Esq., for the 1st Respondent in response to this issue submitted that the right to grant an application to re-open a case is at the discretion of the Court and that the key consideration which guides the Court in the exercise of the discretion is that a new issue has arisen which no human ingenuity could have foreseen before the case was adjourned for judgment. He relied on OGBODU V. STATE [1987] 2 NWLR (PT 54) 20; FATOLA V.

MUSTAPHA [1985] 2 NWLR (PT. 7) 438. The learned counsel further submitted that no cogent facts were presented before the lower Court to justify the exercise of the discretion sought by the Appellant and thus, there was no breach of any right to fair hearing. She relied on OKIKE V. LPDC [2006] 1 NWLR (PT. 960) 67 and urged the Court to resolve the issue in favour of the Respondent and dismiss the appeal.

Mohammed Ndarani Mohammed, SAN for the 2nd Respondent in response to the issue contended that the Appellant and the 4th Respondent who by their conduct waived their right of defence cannot be heard complaining of fair hearing. He submitted that the right to fair hearing is not a one-way traffic. It should be open and accessible to both parties. He relied on SECURITIES AND EXCHANGE COMMISSION & ORS V. OKEKE (2020) 38 W.R.N AT PAGE 119 PARTICULARLY AT PAGE 126 RATIO 5; THE COUNCIL, FEDERAL POLYTECHNIC OKO V. CHUKWUDI UBA (2019) 17 ACELR; AYOOLA V EGEYALO (2018) LPELR-44084 (CA); EZE V.

FRN (2017), LPELR-42097 (SC);MR. JOHN OKON V. PASCAL ADIGWE & ORS (2011), 12 NWLR (PART 1270) 350 AT 374; UBA PLC V. JASE MOTORS (NIG) LTD & ANOR (1997) 7 NWLR (PT. 513) 387 AT 402-403.

The learned senior counsel submitted that the Appellant at the trial Court explored every strategy to delay the proceedings until it was apparent that there was no more room to buy any more time, he decided to abandon the suit even when despite being fully aware of the hearing date, leading to the foreclosure of their defence. ​ The learned SAN finally submitted that the Appellant was given ample opportunity to defend his case but refused to utilize the opportunity, thus, there was no breach of fair hearing.

He urged the Court to resolve the issue in favour of the Respondent and dismiss the Appeal. Paul Kasim Esq., for the 3rd Respondent in response to the issue aligned himself with the position of the Appellant and submitted that the lower Court erred in refusing the Appellant and the 3rd Respondent right to be heard. He submitted that the Appellant and the 3rd Respondent were foreclosed from defence without their knowledge thereby breaching their right to fair hearing. He relied on EKIYOR & ANOR V. BOMOR (1997) LPELR-1082 (SC); OLATUNBOSUN V.

NISER (1988) 3 NWLR PT. 80, P.25 AT 49; AG RIVERS STATE V. UDE (2006) LPELR-626 (SC); SECTION 36(1) OF THE 1999 CONSTITUTION. The learned counsel contended that the Appellant in this case should not be held responsible for a mistake of his former counsel. He relied on NOGA HOTELS INT’L V. NICON HOTELS LTD. (2007) VOL. 41 WRN 125 AT 153, LINES 20-45 (CA). Paul Kasim Esq., contended that though the trial Court has a discretionary power to either grant or refuse an application such as the instant one, such discretion however must be exercised judicially and judiciously.

He relied on UNITED BANK OFAFRICA V G.M.B.LI & CO.; ANACHEBE V. IJEOMA & ORS (2014) LPELR -23181 (SC). He finally submitted that any Judgment given in breach of the principle of fair hearing is a nullity, of no effect and will be set aside by the Court that gave it or by an appellate Court. He relied on ATTORNEY GENERAL, RIVERS STATE V UDE (2006) LPELR- 626 (SC); ARIJE V. ARIJE & ORS (2018) LPELR-44193 (SC) and urged this Court to allow the appeal and set aside the decision of the trial Court.

RESOLUTION OF ISSUE 1 Fair hearing is a cardinal principle of justice which demands that a party must be heard before the case against him is determined. See ESABUNOR & ANOR V. FAWEYA & ORS (2019) LPELR-46961 (SC); SULE & ORS V. ORISAJIMI (2019) LPELR-47039 (SC); SECTION 36 OF THE 1999 CONSTITUTION (AS AMENDED). A party has a choice in the mode and manner of conducting the prosecution and or defence in a suit. What is paramount is that the Court must have afforded all parties equal opportunity to present or defend their cases.

Therefore, if a party had an opportunity of being heard but did not utilize it, he cannot complain of breach of fair hearing. See AHMED & ORS V. REGISTERED TRUSTEES OF ARCHDIOCESE OF KADUNA OF THE ROMAN CATHOLIC CHURCH (2019) LPELR-46414 (SC). The question of fair hearing is not just an issue of dogma. Fair hearing must involve a fair trial and a fair trial of a case consists of the whole hearing. Therefore, whether or not a party has been denied of his right to fair hearing is to be judged by the nature and circumstances surrounding a particular case.

It is wrong and improper to approach the meaning of fair hearing by placing reliance on any prior assumptions. The simple approach is to look at the totality of the proceedings before the Court and then form an opinion on objective standards whether or not an equal opportunity has been afforded the parties. The Court has two competing interests to contend with when considering an application such as this. The need to dispose of the case speedily vis-a-vis the right of both parties to be heard on the matter.

These two great interests have often been expressed with the fact that justice delayed is justice denied and at the same time you cannot sacrifice justice on the altar of speed. Therefore, the Court must of a necessity negotiate a balance between the two competing interests while being guided by the need to do substantial justice. ​ Herein, from the record of proceedings before this Court, it is notable that series of adjournments were taken during the hearing at the trial Court.

Noteworthy, on 10th October, 2017, the counsel for the Appellant at the trial Court sought for an adjournment to make available documents which he allegedly needed to conduct a cross-examination on the CW1. The said adjournment was granted by the trial Court. See pages 958-959 of the Record of Appeal. Again, on 1st of November, 2017, the counsel for the Appellant asked for an adjournment to enable the learned SAN to appear and conduct the cross-examination of the CW1 in person. This again was granted. See page 959 of the Record of Appeal.

On 17th July, 2018, the Appellants sought for a date to enable them open their defence. It was granted and the Court adjourned to 1st November, 2018 for defence. On 1st November, 2018, counsel again asked for a date to enable the lead counsel to appear and lead the defence himself. It was again granted. See page 968 of the Record of Appeal. On the adjourned date which was 12th December, 2018, the Appellant instead of opening his defence filed a preliminary objection challenging the jurisdiction of the Court. The objection was not successful.

On 11th February 2019, when the matter came up again for defence, the Appellant was not in Court. The Respondents then sought by an application for foreclosure and the same was granted. The Court adjourned for final written addresses and the Court ordered that hearing notice to that effect be served on the Appellant. On 3rd April 2019, when the matter came up for adoption of final written addresses, the Appellant was represented and did not pray anything from the Court, not even to reopen defence. The Respondents adopted their final written address and the matter was adjourned for judgment.

On 1st July, 2019 when the matter came up for judgment, the Appellant brought an application to reopen his defence on the ground that the lawyer who had been appearing for the Appellant is a fake lawyer, which application was refused. It is pertinent to state herein that the grant or refusal of an application to reopen a case is entirely at the Court’s discretion. However, in exercising that discretion, the Court must confine itself to the reason for the particular application.

I have carefully perused the record of appeal before me, particularly the proceedings of the said trial Court as briefly itemized above, the trial Court afforded both parties equal opportunities to present their sides of the case. Therefore, I see no breach of fair hearing as the Appellant was afforded the opportunity to present her case but failed to utilize the same.

Now, on the argument that the former counsel is a fake lawyer, the allegation that a lawyer who has filed legal documents before a Court of law and appeared severally before a Court as a lawyer is not a lawyer is a criminal allegation. It is impersonation and is criminal in nature. It is settled in law beyond argument that criminal allegations must be proved beyond reasonable doubt. See EHIMIYEIN V. STATE (2016) LPELR 40841 (SC). Therefore, impersonation being criminal in nature must be proved beyond reasonable doubt. See EMEKA V. IGP (2021) 10 NWLR (PT. 1785) 489 (SC).

It is not the duty of the Court to embark on a voyage of discovery as to whether or not the said Appellant’s former counsel is a fake lawyer as it is settled in law that he who asserts, must prove.

It is worthy to note that from the record of proceedings before this Court, the Appellant did not place any evidence before the Court to suggest let alone proof that the said lawyer, Mr. Anthony Idikwu Ebah is a fake lawyer. The Appellant has relied on the argument that his former counsel is fake to pin his indulgence to be inadvertence of counsel.

I quite agree as it is settled that the inadvertence of counsel cannot be visited on the litigant. See RASAKI V. AJIJOLA (2018) 7 NWLR (PT. 1617) 13 (SC). However, it is pertinent to distinguish inadvertence of counsel from the ineptitude of counsel. Thus, the rule that a litigant should not be punished for the mistake or inadvertence of counsel does not extend to a situation where his counsel has exhibited tardiness and incompetence. See MALARI V. LEIGH (2019) 3 NWLR (PT. 1659) 332 (SC); G.T.B. V. EST MASTER CONSTR. LTD. (2018) 8 NWLR (PT. 1622) 483 (SC); N.N.P.C. V.

SAMFADEKSONS LTD. (2018) 7 NWLR (PT. 1617) 1 (SC); ORE V. AKANBI (2021) 14 NWLR (PT. 1795) 1 (CA). The burden of proving inadvertence of counsel lies on the applicant. He has to prove the existence of such inadvertence of counsel. See N.N.P.C. V. SAMFADEKSONS LTD (2018) 7 NWLR (PT. 1617) 1 (SC); SECTIONS 132 AND 133 OF THE EVIDENCE ACT, 2011.

Thus, where there has been a failure of strategy or tactic on the part of the counsel, as in the instant case, the litigant cannot escape such blunders committed by his counsel, for if the strategy had worked, both the counsel and his client would take full credit. Flowing from the above, it is my view and I so hold that the Appellant has failed to prove that his failure to enter defence was as a result of the inadvertence of his counsel. He has also failed to prove that his former counsel was a fake lawyer. I hold that his right to fair hearing was not breached.

I resolve the issue in favour of the 1st and 2nd Respondents. SUBMISSIONS ON ISSUE 2 “Whether the lower Court was clothed with the requisite jurisdiction to make consequential orders for the holding of a fresh National Delegates Conference for the appellant, subject of a pending Appeal in Appeal No. CA/A/1131/2018 touching on the same issue?” Olumide Philips, Esq., on this issue submitted that once an appeal is entered at an appellate Court, the trial Court from which the appeal emanated will cease to have jurisdiction over any issue or subject matter of the appeal. ​ He relied on ADENIYI V.

ONAGORUWA [1994] 4 NWLR (PT.349) 225, ADELEKE V. OYO STATE HOUSE OF ASSEMBLY [2006] 10 NWLR (1987) 50; MOHAMMED V. OLAWUNMI [1993] 4 NWLR (PT. 287) 254 AT 278 D -E & H; OGUNREMI & ANOR. V. DADA [1962] 1 ALL NLR 663; EZEOKAFOR V. EZEILO [1999] 9 NWLR (PT. 619) 513 AT 524 E-F. The learned counsel submitted that the lower Court violated the above principle of law by ordering that a fresh national delegates conference be held for the Appellant despite the pendency of Appeal No. CA/A/1131/2018 on the issue.

The essence of the principle is to ensure that the judgment of the appellate Court is not rendered a fait accompli, leaving the victorious party to celebrate a mere empty and Pyrrhic victory. He CITED KIGO (NIG) LTD V. HOLMAN BROTHERS (NIG) LTD [1980] 5-7 SC 60; WAMI AKAIDE & 2 ORS V. THE STATE [1996] 8 NWLR (PT. 463) 525. Olumide Philips, Esq., further submitted that once a trial Court is aware that an appeal has been entered on a matter, it is precluded from going ahead to pass sentence on either party before it. He relied on Mohammed v.

Olawunmi [1993] 4 N.W.L.R (Pt. 287) 254 AT 281 F-H and urged the Court to resolve the issue in favour of the Appellant and against the Respondents. Chinyere Moneme, Esq., for the 1st Respondent in response to this issue submitted that the consequential order was an attempt by the trial Court to protect itself from abuse from parties who hold its processes in contempt and who would disobey orders of the Court in order to cling on to power. See EZENWANKWO V STATE (2015) 2 NWLR (PT.1443) P279. PARA B.

She submitted that the trial Court did not base its judgment on the subject matter of the subsisting interlocutory appeal and urged the Court to resolve the issue in favour of the Respondents. Mohammed Ndarani Mohammed, SAN for the 2nd Respondent in response to the issue submitted that the said Appeal No: CA/A/1131/2018 on which subject matter the trial Court purportedly based its decision was filed by the same lawyer who the Appellant alleged to be a fake lawyer.

He further submitted that going by the principle that a legal process filed by a non-lawyer is a worthless piece of paper, the argument that the decision of the Court is invalid by reason of the subsisting appeal is illogical as the said appeal is incompetent by reason of the same being filed by a fake lawyer. He cited SECTION 2 AND 3 (1) (A AND B) OF THE RULES OF PROFESSIONAL CONDUCT FOR LEGAL PRACTITIONERS ACT LFN 2007, AJIBODE V. GBADAMOSI (2021) 7 NWLR PT. 1776, PG. 475 PARTICULARLY AT PAGE 482; OWNERS OF MV “ARABELLA” V. NAIC (2008) 11 NWLR (PT. 1097) 182.

Mohammed Ndarani Mohammed, SAN finally submitted that from the circumstances of this case, it cannot be said that the trial Court based its judgment on a ruling which is subject of appeal in APPEAL NO: CA/A/1131/2018, and thus occasioned a grave miscarriage of justice since the said appeal was filed by an alleged fake lawyer. Paul Kasim Esq., for the 3rd Respondent in response to the issue submitted that once an appeal has been entered in the Court of Appeal, the Court below ceases to have jurisdiction over the entire subject matter.

Thus, the lower Court would lack jurisdiction in the matter until the appeal is heard and determined, the purpose of which is to avoid collusion between a trial Court and an Appellate Court over the same matter. He cited SPDC NIGERIA LIMITED V. AMADI & ORS (2011) LPELR – 3204 (SC); AKINYEMI V. SOYANWO (2006) 13 NWLR (PT. 998) 496 AT PP. 514-515 PARA. G- E; BRAITHWAITE V. S.C.B (NIG) LTD (2012) 9 NWLR (PT. 1305) 304. SEE ALSO MOHAMMED V. OLAWUNMI (1993) 4 NWLR (PT. 287) 254 AT. P. 278, PARAS D-E, AND H; ADENIYI V. ONAGORUWA. He urged the Court to allow the appeal.

RESOLUTION OF ISSUE 2 Jurisdiction is the authority a Court has to decide matters or to take cognizance of matters presented before it. It is fundamental and can be raised at any time. See SOLUMADE V. KUTI (2022) 1 NWLR (PT. 1810) 31 (SC), BAKARI V. OGUNDIPE (2021) 5 NWLR (PT.1768) 1 (SC), BELGORE V. F.R.N (2021) 3 NWLR (PT.1764) 503 (SC), SULAIMAN V. F.R.N. (2020) 18 NWLR (PT. 1755) (SC), PRICE WATER HOUSE V. MOMOH (2020) 18 NWLR (PT. 1755) 32 (CA); SHITTA-BEY V. A.-G., FED. (1998) 10 NWLR (PT. 570) 392 REFERRED TO. (P. 199, PARAS.

F-G). ​Every Court is endowed with jurisdiction by Statute or Constitution and where a Court exercises jurisdiction in a matter which it does not have jurisdiction, the decision from such an exercise is a nullity. See MUYIDEEN V. N.B.A. (2021) 13 NWLR (PT. 1794) 393 (SC); BOT V. JOS ELECTRICITY DISTRIBUTION PLC (2021) 15 NWLR (PT. 1798) 53 (SC); IHIM V. MADUAGWU (2021) 5 NWLR (PT. 1770) 584 (SC); T.C.N., P.H.C.N. V. A.S.B.I.R. (2021) 1 NWLR (Pt. 1757) 207 (CA).

Once a Court lacks jurisdiction, a party cannot use any statutory provision or common law principle to impose it because absence of jurisdiction is irreparable in law. See MADUKOLU V. NKEMDILIM (2006) 2 LC 2081961) NSCC (VOL. 2) 374 AT 379; TUKUR V. TARABA STATE (1997) 6 SCNJ 81. The principle of law that where an appeal has been entered, by which act the record of appeal compiled in the lower Court is transmitted to the registry of the Court of appeal, the trial Court is functus officio and ceases to have any control over the matter in question; is settled in law. See MEKWUNYE V.

CARNATION REGISTRARS LTD. (2020) (CA). Therefore, the Court of appeal only becomes seised of the whole proceedings in a case after an appeal has been entered and until the appeal has been finally disposed of. Once the record of appeal is before the Court of appeal and the appeal is listed, it is at that stage considered entered and the Court of appeal assumes exclusive jurisdiction over it. See A.P.C. V. UDUJI (2020) 2 NWLR (PT. 1709) 541 (SC); VAB PETROLEUM INC. V. MOMAH (2013) 14 NWLR (PT. 1374) 284 (SC); ONNOGHEN V. FRN (2020) 12 NWLR (PT.1738) 289 (CA).

Herein, it is the argument of the Appellant that an interlocutory appeal had entered on the subject matter in Appeal No. CA/A/1131/2018 and the trial Court therefore lacked the jurisdiction to pronounce on the said subject matter in its final judgment. Let me state herein that the said Appeal No. CA/A/1131/2018 is an interlocutory appeal against the ruling of the trial Court which nullified the national conference held by the Appellants in utter disregard of the Court’s order for which summons was issued against the Appellant for contempt.

It is important to emphasis that this said ruling arose from an application which sought to commit the Appellant for contempt, and that the order of Court which was disobeyed by the Appellant has not been appealed against.

Generally, where an interlocutory order does not dispose of a case, it would be wrong to stay proceedings on that matter pending the determination of the appeal. See AGU V. COP (2017) 2 NWLR (PT. 1549) 254 (CA).

The position of the law is settled that a notice of appeal does not operate as a stay of proceedings. For proceedings of a Court to be stayed, there must be an application granted by that Court to that effect. See ALIOKE V. OYE (2018) 18 NWLR (PT. 1651) 247 (SC); ONNOGHEN V. FRN (2020) 12 NWLR (PT.1738) 289 (CA); SECT10N 17 OF THE COURT OF APPEAL ACT, CAP. C36, LAWS OF THE FEDERATION OF NIGERIA 2004; ORDER 4 RULE 11, COURT OF APPEAL RULES 2011.

Hence, any party appealing against an interlocutory decision of a Court is under a duty to apply for stay of further proceedings until the determination of the interlocutory appeal if the party believes that the result of his appeal will affect further proceedings in the matter. Of importance is the fact that the Appellant herein did not apply for stay of proceedings.

Having settled that notice of interlocutory appeal does not operate as a stay of proceedings, in the instant case, the Appellant’s contention that having entered an interlocutory appeal, the trial Court was bereft of the jurisdiction to proceed to determine the appropriateness of the action of the Appellant cannot stand in law.

Most importantly is the fact that stay of proceedings is a discretionary power of the Court. It is not exercised as a matter of right and definitely cannot be exercised in favour of a Contemnor. A Contemnor who does not obey or is in disobedience of a Court order cannot be entitled to be granted the indulgence of the exercise of the equitable jurisdiction of a Court of law. A party in disobedience or in contempt of the order of a competent Court of law cannot be allowed any relief sought in equity as he that comes to equity must come with clean hands. See GOVERNOR OF LAGOS STATE V.

OJUKWU 1986 1 NWLR where the Supreme Court of Nigeria deprecating such an erring and aberrant party or litigant held that the Court cannot exercise its equitable jurisdiction in aid of a person guilty of disobedience to its orders, as such a litigant by even approaching the Court is merely one that is out to taunt the Court. May that day never come when a judicial officer shall lend judicious helping hand to a taunting and disobedient litigant. Certainly, the Appellant herein could not be granted such judicial help.

Accordingly, I hold that the lower Court had the requisite jurisdiction to make consequential orders for the holding of a fresh National Delegates Conference for the Appellant even when there was a pending appeal against its ruling which nullified the national conference held by the Appellants in utter disregard of the Court’s order for which summons was issued against the Appellant for contempt. I resolve issue 2 in favour of the 1st and 2nd Respondents.

SUBMISSIONS ON ISSUE 3 “Having regard to the facts and law, whether the lower Court has the power to grant a consequential order not arising from the principal claims before it?” Olumide Philips, Esq., on this issue submitted that where the principal claim sought in an action is refused, an incidental order cannot be rightly made as there would be no principal claim on which such incidental order can stand on. He relied on OFONDU V. NIWEIGHA [1993] 2 NWLR (PT.275) 253; AKINBOBOLA V. PLISSON FISKO (NIG) (LTD) [1991] 1 N.W.L.R (PART 167) 270; REGISTERED TRUSTEES OF APOSTOLIC CHURCH V.

OLOWOLENI (1990) 6 NWLR (PT. 158) 514. He submitted on when a consequential order may not be granted. He relied on TUKUR V. GOVERNMENT OF GONGOLA STATE [1989] 4 NWLR (PT. 117) 517. Olumide Philips, Esq., further submitted on the sole aim of consequential orders. He cited NOERKER V. PLATEAU STATE [2018] 16 N.W.L.R (PART 1646) 481 AT 495-496 H-A; ETIM EKPENYONG & ORS V. INYANG EFIONG NYONG & ORS [1975] LPELR – SC.161/1974; UNION BANK OF NIGERIA LTD V. OGBOH (1995) 2 NWLR (PT. 380) 647, 664G; UGOCHUKWU V. C.C.B (NIG.) LTD. (1996) 6 NWLR (PT. 456) 524, 539G.

The learned counsel submitted that the trial Court elevated the provisions of Section 19 of the National Industrial Court Act 2006 and Order 59 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 which are subsidiary legislations that can be derogated from to the pedestal of case law and legal rules and by so doing, occasioned miscarried justice. He relied on BROAD BANK OF NIGERIA LTD. V. OLAYIWOLA & SONS LTD & ANOR [2005] 3 NWLR PART 912 PAGE 434; AG LAGOS V. EKO HOTELS LTD & ANOR. [2006] 19 SC. 46.

He submitted that a decision that is based on irrelevant and extraneous considerations such as that of the trial Court in the instant appeal is perverse and liable to be set aside. He relied on N.M.S LIMITED V. J.P.F LIMITED [2005] LPELR-5981(CA) (2005) ALL FWLR (PT. 288) 1193 AT 1206, OSUJI V. EKEOCHA [2009] 16 N.W.L.R (PT. 1166) 81 AT 177.

The learned counsel thus submitted that decision of the Court below consequentially appointing a public trustee based on the earlier nullification of the Appellant’s delegates conference was made without jurisdiction, as the issue of Appellant’s National Delegates Conference was neither pleaded, nor evidence given about it before the Court below.

He further submitted that, there was no Court Order on 6th December, 2017 and a close examination of the bench advice of the lower Court dated December 6, 2017 alluded to by the lower Court will show that the lower Court did not restrain the Appellant from holding a delegates’ conference. He urged the Court to resolve the issue in favour of the Appellant and allow the Appeal. Chinyere Moneme, Esq., for the 1st Respondent in response to this issue submitted that a consequential order is one which gives effect to a judgment or order to which it is consequential.

He cited ODOFIN & ANOR VAGU & ANOR (1992) 3 NWLR (PT. 229) 350. The learned counsel submitted that rules of Court are meant to be obeyed. They serve to guide both the Courts and the parties with the aim of a smooth and effective administration of Justice. Thus, a Court such as the trial Court has power to grant all remedies which would be necessary to ensure that justice is done. She cited HONEYWELL FLOURMILLS PIC V ECOBANK (NIG) LTD (2016) 16 NWLR (PT. 1539) P.426 PARAS H-A; SECTION 14 OF THE NATIONAL INDUSTRIAL COURT ACT (ENACTED PURSUANT TO SECTION 254D (2); BELLO V.

AG OYO STATE (1986) 5 NWLR (PT. 45) 828. The learned counsel submitted that the Appellant’s contention that the order of the lower Court was invalid because it was not specifically claimed falls flat on its face and must be discountenanced as a Court of law must not be understood to play the role of a robot in dispensing justice. He relied on N.S.I.T.F V. IYEN [2014] 9 NWLR (PT.1422) AT 349. He submitted that a decision taken in the overall interest of justice cannot be said to be perverse.

She relied on AKINGBOU V FRN (2018) 14 NWLR (PT.1640) P.416 para F-G and urged the Court to dismiss the appeal. Mohammed Ndarani Mohammed, SAN for the 2nd Respondent in response to the issue contended that the consequential order flowed from the principal claims. He submitted that the trial Court has the discretionary power to make order as to the appointment of a Public Trustee suo moto where there is intra-union or intra-organisational dispute. He relied on HAJIA YINUSA BAKARI V. OGUNDIPE (2021) 5 NWLR PART 1768; USIOBAIFO V. USIOBAIFO (2005) 3 NWLR (PT. 913) 665; N.S.T.I.F V.

IYEN (2014) 9 NWLR 9 (PT 1422) PP. 3429-350.PARAS H-A; ORDER 59 RULE 1 OF THE NATIONAL INDUSTRIAL COURT OF NIGERIA (CIVIL PROCEDURE) RULES, 2017; SECTION 6 OF THE 1999 CONSTITUTION AS AMENDED IN 2011. It is also the submission of the learned senior counsel that the trial Court invoked its inherent powers and modified the relief in order to do substantial justice. He relied on UNIVERSAL OIL LTD V. NDIC (2008) 6 NWLR (PT 1083) 254; ABACHA V. STATE (2001) 3 NWLR (PT. 699) 35.

He further submitted that considering the exigency and circumstances of this case, the Court can grant consequential orders to fill in the vacuum which was created by the retirement of the president and give effect to the judgment of the Court. He urged the Court to resolve the issue in favour of the Respondents and dismiss the appeal.

Paul Kasim Esq., for the 3rd Respondent in response to the issue submitted that the 1st and 2nd Respondents have not appealed against the finding and or decision of the trial Court to the effect that their entitlement to the relief that the incumbent president has retired was not proved. Thus, same is binding, subsisting and conclusive against them. He relied on KOYA V. U.B.A. LTD (1997) 1 NWLR (PT. 481) 251 AT P. 266, P.N. UDOH TRADING CO. LTD V. ABERE (2001) 11 NWLR (PT. 723) 114 AT P. 146 and ANYANWU V. OGUNEWE (2014) LPELR -22184.

He contended that the Court not being father Christmas cannot grant reliefs not sought. Thus, the appointment of a public trustee to manage the affairs of the Appellant and direction of the conduct of fresh National Delegates Conference of the Appellant to elect new executive members for purposes of running the affairs of the Appellant which were not sought by any of the parties as specific reliefs; cannot be granted. He relied on VEEPEE INDUSTRIES V. COCOA INDUSTRIES LTD (2008) 13 NWLR (PT. 1105) 486 AT P. 512, PARAS F-H; YUSUF V. OYETUNDE (1998) 12 NWLR (PT. 579) 483 PP. 498 – 499, PARAS.

H – A. See also EKPENYONG & ORS V. NYONG & ORS (1975) LPELR – SC 161/1974 and S.S. CO. LTD V. AFROPAK(NIG) LTD (2008) 18 NWLR (PT. 1118) 77. The learned counsel submitted that such orders did not qualify as consequential orders as they did not flow from any of the reliefs granted by the Court. There must be a principal relief upon which a consequential relief or order could be predicated. He cited DR. AYEMOBA V. MRS. OLUBUNMI AYEMOBA (2018) LPELR – 45385 (CA); NOEKOER V. PLATEAU STATE (2018) 16 NWLR (PT. 1646) 481 AT PP. 495 – 496, PARAS. H – A; AKINBOBOLA V.

PLISSON FISKO (NIG) LTD (SUPRA); TUKUR V. GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR (PT. 117) 517; REGISTERED TRUSTEES OF APOSTOLIC CHURCH V. OLOWOLENI (1990) 6 NWLR (PT. 158) 514. He urged the Court to resolve the issue in favour of the Appellant. RESOLUTION OF ISSUE 3 A consequential order is an order which gives effect to the judgment of the Court.

It must flow from the judgment. See BAKARI V. OGUNDIPE (2021) 5 NWLR (PT. 1768) 1 (SC); NOEKOER V. GOV., PLATEAU STATE (2018) 16 NWLR (PT. 1646) 481 (SC); OYEYEMI V. OWOEYE (2017) 12 NWLR (PT. 1580) 364 (SC); ELIGWE V. OKPOKIRI (2015) 2 NWLR (PT. 1443) 348 (SC); YANKEY V. AUSTIN (2021) 1 NWLR (PT. 1757) 227 (CA). By the very nature of the term consequential, and in its ordinary dictionary meaning, the word consequential means following as a result, or inference; following or resulting indirectly. A Court has jurisdiction to make consequential orders where necessary.

These are orders which are incidental to the decision of the Court and which flow necessarily, naturally, directly and consequently from the judgment, and not extraneous nor can be classified as strange and do not need to have been claimed earlier to be given or granted. See U.O.O. (NIG.) PLC V. OKAFOR (2020) 11 NWLR (PT. 1736) 409 (SC). A consequential order is traceable to or flows from the relief prayed for and must be made consequent upon the relief claimed by the Claimant. It may have an indirect or secondary result in the relief awarding process.

It is appurtenant to the main or principal order. The High Court has inherent powers to make orders even if they are not sought by the parties where such orders are incidental to the prayers sought and where the claimant includes in his prayers the expression “and for such order or other orders as this Honourable Court may deem fit to make in the circumstance”. Whatever be the case, a consequential order must be incidental to, and flow directly and naturally from reliefs claimed being an offshoot of the main claim to give effect to the judgment.

In the instant case, the consequential order made was a follow-up to give meaning to the decision of the trial Court and so was incidental to the main order. The trial Court having declared null and void the national delegates conference held in disobedience to the Court’s order, the appointment of the trustees naturally followed.

The law being settled that a Court has the jurisdiction to make consequential orders where necessary so far as the said order relates to matters adjudicated upon; in this case, the order by the National Industrial Court that Public Trustees be appointed for the 2nd Defendant to oversee the running of the association followed from the fact that the incumbent chairman had retired and valid election yet to be conducted. The natural sequence or resulting order was for a public trustee to be appointed to oversee the affairs of the association.

Hence, I hold that the order made by the trial Court which I have held was a consequential order was rightly made. The lower Court therefore did not grant a consequential order not arising from the principal claims before it. I resolve this issue in favour of the 1st and 2nd Respondents.

SUBMISSIONS ON ISSUE 4 “Whether the lower Court was right to base its decision to order for the appointment of a Public Trustee to oversee the administration and finances of the Appellant on the provisions Section 19 of the National Industrial Court Act, 2006 and Order 59 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 rather than Section 19(1) and (2) of the Trade Union Act, a specific statute governing trade union activities?

Olumide Philips, Esq., on this issue submitted that where there are two enabling enactments on a subject matter, one specific and the other general, the Court ought to presume without more that the lawmaker has intended the specific provision to prevail over the general provision and so to govern the matter. He relied on FEDERAL MORTGAGE BANK OF NIGERIA V. P. N. OLLOH (2002) 9 NWLR PART 773 PAGE 475, (2002) 4 S. C. PART II PAGE 117; SCHRODER & CO. V. MAJOR CO. LTD. (1989) 2 NWLR PART 101 PAGE 1 AT 21 PER AGBAJE JSC, BAMIGBOYE V.

ADMINISTRATOR-GENERAL (1954) 14 WACA PAGE 616, THE GOVERNOR OF KADUNA STATE & ORS V. LAWAL KAGOMA (1982) 6 SC 87, EZEADUKWA V. MADUKA (1997) 8 NWLR PART 518 PAGE 635 AT 657 PARAGRAPHS B – D, AGRO ALLIED ENT. LTD. V. MV NORTHERN REEFER & 2 OTHERS (2009) 5-6 S.C. PART 1 PAGE 110 AT PAGE 122.

He submitted that since the Trade Unions Act was specifically enacted by the legislature to regulate Trade Unions activities in Nigeria, the Court in making the consequential orders ought not to have relied on the provisions of Order 59 of the National Industrial Court Rules 2017 and Section 19 of the National Industrial Court Act 2009 but should have rather relied on Section 19 (1) and (2) of the Trade Unions Act. He relied on LUBY V. WARWICKSHIRE MINERS ASSOCIATION (1912) 2 CH. 37; NDIC V. GOVERNING COUNCIL OF THE ITF & ANOR (SUPRA).

Olumide Philips, Esq., contended that orders obtained without jurisdiction is void. He relied on MACFOY V. U.A.C. (SUPRA); SKEN CONSULT(NIG) LTD & ANOR V. UKEY [1981] LPELR-3072(SC). It is also his contention that the Court of appeal can validly exercise its powers under Section 15 of the Court of Appeal Act to determine the real question in controversy between the parties. He cited OSHOBOJA V. AMUDA [1992] 6 NWLR (PT. 250) 690 S.C, CHIEF EJOWHOMU V. EDOK- ETER MANDIUS LIMITED (1986) 9 SC. He urged the Court to allow the appeal and reverse the judgment of the lower Court.

Chinyere Moneme, Esq., for the 1st Respondent in response to this issue agreed with the Appellant that where there are two enabling enactments on a subject matter, one specific and the other general, the Court ought to presume without more that the lawmaker has intended the specific provision to prevail over the general provision and so to govern the matter. She cited ZAKARI V. IGP (2000) 8 NWLR PART 670 P.666 AT P 683-684, MRS F BAMGBOYE V ADMINISTRATOR GENERAL 14 WACA 616 AT PAGE 619, GOVERNOR OF KADUNA STATE & ORS V.

LAWAL KAGOMA (1982) 6 SC 87 AT 107 – 108, KRAUS THOMPSON ORGANISATION LTD V. NATIONAL INSTITUTE FOR POLICY AND STRATEGIC STUDIES (2004) LPELR- 1714 (SC), 2004 9 NWLR (PT. 879) 61; SCHRODER V. MAJOR (1989) 2 NWLR (PT 101) 1 AND ORUBU V. NEC (1988) 5 NWLR (PT. 94) 323. But however, she submitted that there is no conflict between the aforestated enactments Section 19 (1) & (2) of the Trade Unions Act; and Section 19 of the National industrial Act & Order 59 of the National Industrial Court (Civil Procedure) Rules, 2017 as they do not cover the same subject matter.

The learned counsel contended that while Section 19 of the Trade Union’s Act deals with an application for an injunction to restrain any unlawful or unauthorized application of the funds of a trade union, the National Industrial Court (Civil Procedure) Rules 2017 on the other hand deals with the mode and procedure of the appointment of a public trustee including his remuneration, eligibility and functions. Therefore, it was submitted that the above principle is inapplicable since the laws do not cover the same subject matter. He relied on ARAKA V.

EGBUE (2003) LPELR – 532 (SC) and urged the Court to resolve the issue in favour of the Respondents and dismiss the appeal. Mohammed Ndarani Mohammed, SAN for the 2nd Respondent in response to the issue submitted that Section 19 of the Trade Union Act does not exclude the right of any member who has sufficient interest in any relief sought for in an injunction. He relied on ACMEL NIGERIA LTD & ANOR V. FBN PLC & ORS (2014) LPELR-2244 (CA).

The learned senior counsel contended that the Appellant has rightly argued that where there are two provisions of the law, one specific and the other general covering the same subject matter, a matter falling within the words of the specific provision as in the instant case, must be governed by the specific provisions thereby and not the general provision. He submitted that Section 19 of the National Industrial Court Act is a special provision on the subject of this appeal. He relied onOMINI & ORS VS.

YAKURR LGA & ORS (2019) LPELR – 46300 (CA), PER SHUAIBU, J.C.A (PP. 10-13 PARAS B-B); ZAKARI V. IGP (2000) 8 NWLR (PT. 670) PG. 693-684. 7.7. Mohammed Ndarani Mohammed, SAN finally submitted that the appointment of a Public Trustee by the President of the National Industrial Court under Section 19 of the National Industrial Court Act 2006 and Order 59 Rule 1 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 is very much in order and has not occasioned miscarriage of justice. He urged the Court to resolve the issue in favour of the Respondents and dismiss the appeal.

Paul Kasim Esq., for the 3rd Respondent in response to the issue submitted that Trade Union Act was specifically promulgated by the Legislature to govern the activities of Union Activities inclusive of the appointment of a Public Trustee. The said Act made provision for the appointment of a Public Trustee for the Appellant – a trade Union. He cited Section 19 (1) and (2) of the Trade Union Act.

The learned counsel submitted that Section 19 (1) & (2) of the Trade Union Act is the only applicable law the lower Court ought to rely on because it is a specific law governing the activities of Trade Unions and has provided for the appointment of a public trustee and not the National Industrial Court Act and Rules of industrial Court, which is a general law. He relied on AMERICA SPECIFICATION AUTOS LIMITED & ANOR V. ASSET MANAGEMENT CORPORATION OF NIGERIA (2017) LPELR- 4401 (CA); ABUBAKAR V. NASAMU (2012) 17 NWLR (PT. 1330) 523 AT 526.

Paul Kasim Esq., further submitted that the conditions precedents for the appointment of a Public Trustee to administer the finance of the Appellant listed by the Trade Union Act which is to the effect that the Attorney General of the Federation or the Registrar or any five members of the union have to apply for an injunction restraining the unauthorized use of the Appellant’s funds were not fulfilled by the 1st and 2nd Respondents. He cited Section 19 of the Trade Union Act. He submitted that the failure to fulfill this condition precedent rendered the appointment void.

He relied on ORAKUL RESOURCES LTD. V. N.C.C (2007) 16 NWLR (PT. 1060) 270 AT 302 PARAS B – D (CA); NWABUEZE V. OKOYE (1988) 4 NWLR (PT. 91) 664. He urged the Court to allow the appeal. RESOLUTION OF ISSUE 4 The settled principle of law that where there is a conflict between two laws covering the same subject matter, one specific and the other general, the specific provision of the law prevails; is elementary.

See E.F.C.C. V. REINL (2020) 9 NWLR (PT. 1730) 489 (SC). Therefore, where there is a special provision in a statute, a later general provision in the same statute capable of covering the same subject matter would not be interpreted as derogating from what has been specially provided for, unless an intention to do so is unambiguously declared. Parties are in ad idem that the Trade Union Act is a specific provision while the National Industrial Court Rules is a general provision.

What will guide the resolution of this issue is the answer to the question, whether the provisions of the two enactments under view cover the same subject matter. Let me start with the reproduction of the said sections for emphasis.

Section 19 of the Trade Union Act provides: (1) “Without prejudice to the right of any person having a sufficient interest in the reliefs ought to apply for an injunction to restrain any unauthorized or unlawful application of the funds of a trade union, an injunction restraining any such application of the funds of the trade union may be granted by the appropriate High Court upon the application of the Attorney-General of the Federation or of the Registrar, or of any five or members of the union. (2) On an application under this section, the appropriate High Court may, in addition to or instead of granting an injunction, order that the whole or any part of the funds of the trade union be paid over to the Public Trustee to be administered or disposed of in accordance with the rules of the union.

Section 19 of the National Industrial Court Act provides: The Court may in all other cases and where necessary make any appropriate order, including- (a) the grant of urgent interim reliefs; (b) a declaratory order; (c) the appointment of a public trustee for the management of the affairs and finances of a trade union or employers’ organisation involved in any organisational dispute; (d) an award of compensation or damages in any circumstance contemplated by this Act or any Act of the National Assembly dealing with any matter that the Court has jurisdiction to hear; and (e) an order of compliance with any provision of any Act of the National Assembly dealing with any matter that the Court has jurisdiction to hear.

Order 59 of the National Industrial Court Rules provides: Where there is an intra-union or intra- organisational dispute before the Court, the Court may suo motu or upon a motion on notice by any of the parties make an order for the appointment of a Public Trustee to manage the administration, affairs and finances of the trade union, employees’ or employers’ organization involved in any intra-union or intra-organizational disputes before the Court to appoint a Public Trustee states as follows: Rule 2(1) The Court may appoint a Public Trustee from among reputable and notable Nigerians who certify the provisions of Rule 3 of this Order.

Rule 2(2) Where the Court orders that a Public Trustee be appointed in line with the provisions of Sub-rule 1 of this Rule, the Judge shall remit the file of the proceedings to the President of the Court for the appointment of the Public Trustee to manage the affairs administration and finances of the trade union, employee’s association or employers organisation. Provided that the appointed Public Trustee shall not interfere with or play any role in statutory union, association or organisation activities.

From the above extract, it is evident that the provisions of Section 19 of the Trade Union Act specifically deals with the application of a Union’s fund and nothing more while the provisions of the National Industrial Court Rules and Act respectively, relate to the management of the affairs of the Union, the administration of the Union and the application of its finances. ​The suit before the trial Court did not relate to the Union’s fund and no rule of interpretation can be applied to limit the said suit to application of the Union’s fund. No. it is way more than that.

The learned counsel for the Appellant and the 3rd Respondent cannot by any stretch of flowery submissions limit the suit to the application of the union fund. A glance at the reliefs sought which includes an order nullifying the expulsion of the 1st Respondent from the union; an order that the office of the president of the Appellant be declared vacant and that the 2nd Respondent be appointed to that office pending when elections would be conducted and etcetera makes it crystal clear that both the management and administration of the affairs of the Union were in issue.

Reliefs such as the nullification of the invalid expulsion of some members, declaration of the executive office of the chairman vacant, injunction restraining executives from amending the constitution of the Union, and etcetera cannot be classified as application of Union’s fund. Flowing from the above, I hold that the provisions of Section 19 of the Trade Union Act and the provisions of Section 19 of the National Industrial Court Act and Order 59 of the National Industrial Court Rules relied on by the trial Court do not cover the same subject matters.

While the Trade Union’s Act is applicable where there is issue of how the funds of a Union is to be applied, the provisions of the National Industrial Court’s Act and Rules on the other hand apply where there is an intra-organizational or inter-organizational dispute as to the management of the general affairs of the Union. Therefore, I hold that the trial Court was right when it relied on the provisions of the National Industrial Act and Rules in the appointment of Public Trustees for the management of the general affairs of the Union pending when a valid election is conducted.

This issue is resolved in favour of the 1st and 2nd Respondents and against the Appellant.

In all, having resolved all the issues in favour of the 1st and 2nd Respondents and against the Appellant, the appeal fails and the same is hereby dismissed. I uphold the decision of the National Industrial Court of Nigeria Per Sanusi Kado, J., delivered on 25th October, 2019; in Suit Number: NICN/ABJ/31/2016. I award the costs of N200,000.00 in favour of the 1st and 2nd Respondents respectively.

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I read before now the judgment of my learned brother, Uchechukwu Onyemenam JCA, just delivered. I agree that the appeal is bereft of any merit and I also dismiss it and award the sum of N200,000.00 (Two Hundred Naira only) as costs in favour of the 1st and 2nd respondents.

MOHAMMED MUSTAPHA, J.C.A.: I have had the privilege of reading in advance the judgment of my learned brother, UCHECHUKWU ONYEMENAM, JCA just delivered. I agree with his conclusions that the appeal fails and it is accordingly dismissed. ​ I abide by the consequential order of costs assessed at N200,000.00 only in favour of the 1st and 2nd Respondents.

Judgment

UCHECHUKWU ONYEMENAM, J.C.A. (Delivering the Leading Judgment): This interlocutory appeal is against the ruling of the National Industrial Court of Nigeria delivered on 1st November, 2018 by Sanusi Kado, J., in Suit Number: NICN/ABJ/31/2016 wherein the learned trial Judge nullified the 2nd Appellant’s National Delegates Conference and ordered committal summons to be issued against the 1st Appellant. The 1st and 2nd Respondents herein at the trial Court instituted an action by an Originating Summons filed on 27th January, 2016.

By an order of Court that pleadings be filed, the 1st and 2nd Respondents converted the originating summons into a Complaint wherein they sought inter alia; an order nullifying the expulsion of the 1st Respondent from the union; an order that the office of the president of the 2nd Appellant be declared vacant and that the 2nd Respondent be appointed to that office pending when elections would be conducted, etc. ​The 1st and 2nd Respondents also filed a motion for interlocutory injunction to restrain the Appellants from holding a National Delegates Conference and from conducting an election into executive positions of the 2nd Appellant at the said conference as the same will allegedly render the judgment of the Court when delivered nugatory.

The Court ordered that no party should do anything to affect or jeopardize the hearing of the application. The Appellants on 25th and 26th January, 2018 in disobedience to this Court order purportedly conducted a Delegates conference wherein it conducted elections and appointed new executives for the 2nd Appellant. Subsequently, the Court on 6th February 2018 delivered its ruling which restrained the Appellants from holding the National Delegates Conference and from conducting elections pending the determination of the substantive suit.

Meaning, the Appellant having already held the National Delegates Conference and elected new executives rendered the ruling of the trial Court on the interlocutory application nugatory. Aggrieved by this act of the Appellants, the 1st and 2nd Respondents brought an application seeking a committal order against the Appellants.

Consequently, the learned trial judge nullified the Delegates Conference of the 2nd Defendant held while there was a subsisting valid Court Order and ordered for summons to be issued against the 1st Appellant to appear before the Court to show cause why he should not be sanctioned by the Court for disobedience of a Court order. Dissatisfied with the ruling of the trial Court, the Appellants approached this Court via a Notice of Appeal dated 10th December, 2018 and filed on 11th December, 2018.

The learned Counsel on both sides filed relevant processes as required by the rules of the Court, the appeal was then heard on 2nd December, 2021. Olumide Philips, Esq., appearing with I. D. Bob Manuel Esq., represented the Appellants. Chinyere Moneme, Esq., appearing with Mukeng Nathan, Esq. was for the 1st Respondent. Mohammed Ndarani Mohammed, SAN appeared with Michael Eleyinmi, Esq., Clement Chukwuemeka Esq., Stephen Apeh Esq., Uchenna Chukwuemeka, Esq. and Raphael Ashwe Esq., for the 2nd Respondent. The 3rd Respondent was not represented.

The Appellant applied to withdraw the appeal against the 3rd Respondent, it was granted. The name of the 3rd Respondent was accordingly struck out. The appeal was then argued. ​ Olumide Philips, Esq., for the Appellant adopted and relied on the Appellant’s brief of argument field on 1st April, 2019 and reply brief filed on 1st December, 2021 but deemed properly filed and served on 2nd December, 2021 in praying the Court to allow the appeal. The Appellants donated 2 issues for determination to wit: 1.

Considering the substantive reliefs sought before the lower Court, whether the lower Court has the jurisdiction to grant any relief restraining the Appellants from holding a delegates’ conference or nullifying such a conference. 2. Whether the lower Court was clothed with the requisite jurisdiction to order summons to be issued to the 1st Appellant to show cause why he should not be committed to prison and determine the committal proceedings where the Respondent did not issue and serve Forms 48 and 49 against the Appellants as required by law.

Chinyere Moneme, Esq., for the 1st Respondent adopted and relied on the 1st Respondent’s brief filed on 29th May, 2020 but deemed properly filed and served on 2nd December, 2021 in urging the Court to dismiss the appeal. The 1st Respondent formulated 2 issues for determination as follows: 1. Whether the Court had the inherent/disciplinary jurisdiction under Section 6(6) of the 1999 Constitution to sanction the appellants by restoring the status quo antebellum in the suit after nullifying the delegates conference held by the appellants. 2.

Whether the lower Court was clothed with the requisite jurisdiction to order summons to be issued to the 1st Appellant to show cause why he should not be committed for contempt and whether the respondents issued and served Form 48 and Form 49 against the appellants as required by law. Mohammed Ndarani Mohammed, SAN for the 2nd Respondent adopted and relied on the 2nd Respondent’s Brief filed on 23rd June, 2020 in urging the Court to dismiss the appeal.

The 2nd Respondent submitted a sole issue for determination to with: WHETHER A COURT OF LAW HAS THE INHERENT POWER TO SANCTION OR PUNISH ERRING PARTIES IN A SUIT FOR FLAGRANT DISRESPECT AND DISOBEDIENCE OF ITS ORDER, IN ORDER TO MAINTAIN SANCTITY AND RESPECT OF THE JUDICIARY. From the grounds of appeal, I view that the sole issue raised by the 2nd Respondent will satisfactorily determine this Appeal. I shall proceed to determine the appeal based on the said sole issue.

SUBMISSIONS ON SOLE ISSUE WHETHER A COURT OF LAW HAS THE INHERENT POWER TO SANCTION OR PUNISH ERRING PARTIES IN A SUIT FOR FLAGRANT DISRESPECT AND DISOBEDIENCE OF ITS ORDER, IN ORDER TO MAINTAIN SANCTITY AND RESPECT OF THE JUDICIARY. Olumide Philips, Esq., on this issue submitted that what determines the jurisdiction of the Court is the reliefs before it and that for a Court to have jurisdiction to grant interlocutory reliefs, such interlocutory reliefs must flow from the substantive reliefs sought in the statement of Claim. He relied on TUKUR V.

GOVERNMENT OF GONGOU STATE (1989) 4 NWLR (PT. 117) 517. The learned counsel contended that from the Respondent’s Motion on Notice that gave rise to this appeal, there is no relief that asked for nullification of the Appellants’ Delegate Conference and submitted that the Court cannot grant an order that is not sought for and that reliefs granted by a Court must not be inconsistence with a party’s case and claim. He cited EMAVWORHE ETAJATA & ORS V. PETER IGBINI OLOGBO & ANOR (2007) 16, NWLR (PT. 1061) 554, (P.34, PARAS C-F); YUSUF V.

OYETUNDE (1998) 10 SCNJ 1 AT PAGE 20; (1998) 12 NWLR (PT.579) 483 AT 498-499, PARAS. H-A; EDEBIRI V. EDEBIRI (1997) 4 SCNJ 177 (1997) 4 NWLR (PT.498) 165; ETIM EKPENYONG & ORS V. INYANG EFIONG NYONG & ORS (1975) LPELR-SC 161/1974. Olumide Philips, Esq., also submitted that an interlocutory application must flow from the substantive reliefs in the Writ of Summons and statement of claim. He cited AKHIGBE & ANOR V. ASHIMEDUA (2002) LPELR-7136 AT PP 11-13 PARAS. C-H.

He further submitted that a close examination of the bench advice of the lower Court on 6/12117 alluded to by the lower Court will show that the lower Court did not restrain the Appellants from holding a delegates’ conference as same is not one of the substantive reliefs sought at the lower Court.

The learned counsel also submitted that committal for contempt is a quasi-criminal proceeding and the law requires the accuser to strictly follow the procedure laid down by law and that the failure to issue and serve Form 48 and Form 49 personally on the alleged contemnor will invalidate the whole contempt proceedings. He cited FCMB V. ABIOLA & SONS LTD (1991) 1 NWLR (PT. 165) 14 AT 31, AGU V ANYALOGU (2002) 14 NWLR (PT. 787) 294 AT 309, EFCC, CHAIRMAN V.

ONWU (2016) 2 NWLR (PT. 1495) 74 AT PAGES 87 PARAS A-C; SECTION 72 AND 95 OF THE SHERIFFS AND CIVIL PROCESS ACT, LFN, 2004; ORDER 62 OF THE NATIONAL INDUSTRIAL COURT RULES; ORDER 35 OF THE HIGH COURT RULES. Olumide Philips, Esq., of counsel contended that the requisite Forms 48 and 49 were not served on the Appellants at all and that the only process served on them which is the Motion on Notice was also not served on them personally as required by law but on their counsel. He submitted that this robs the Court of the jurisdiction to hear the suit. He relied on INEC & ANOR V.

EJIKE OGUEBEGO & ORS (2017) LPELR- 42609 (SC); BAFARAWA V. STATE (2014) LPELR-22321 (CA). Olumide Philips, Esq., further submitted that for a Court to commit a party for contempt, the Applicant must establish what order of Court the alleged contemnor failed to obey as such order of Court is the conditions precedent to the hearing of a contempt application. Such order must be clear and unambiguous. He relied on ABBAS V. SOLOMON (2001) 15 NWLR (PT. 735) 144 A 166, PARAS G.

He contended that the order of 6th December, 2017 does not qualify as such because the terms are not clear and unambiguous and that the onus of proving otherwise is on the Applicant. Hence, the Court lacked the requisite jurisdiction to hear the contempt jurisdiction and urged the Court to resolve the issue in favour of the Appellant and set aside the judgment of the trial Court.

Chinyere Moneme, Esq., for the 1st Respondent in response to this issue submitted that the National Delegates Conference held on 25th and 26th January, 2018 was an abuse of Court process as the same was held in violation of a Court order for parties to maintain status quo pending the delivering of the ruling on the interlocutory injunction. The learned counsel contended that the reliefs sought for in the 1st & 2nd Respondents’ motion before the trial Court are appurtenant and relate to the reliefs claimed in the substantive suit and that this case is on all fours with the case of COMM.

EDUCATION, IMO STATE V AMADI (2013) 13 NWLR (PT. 1370) P. 149 – 150 PARAS H-C. Chinyere Moneme, Esq., further contended that even if the interlocutory reliefs as couched in the Respondents motion did not flow from the substantive relief contained in the respondent’s complaint, the trial Court had the inherent powers to invoke its disciplinary jurisdiction under the constitution to sanction the Appellants for violating its order(s). In fact, the Court can invoke its inherent powers and modify the relief in order to do substantial justice. He relied on EZEGBU V.

F.A.T.B LTD (1992) 1 NWLR (PT. 220) 725 C-D, ANYAOHA V. OBIOHA (2014) 6 NWLR (PT.1404) PP 481- 482 G-B; N.S.T.I.F. V. LYON (2014) 9 NWLR (PT 1422) PP 349-350. PARAS H-A, F- H; ANYAOHA V. OBIOHA (SUPRA) AT P. 481 PARA E-G; UNIVERSAL OIL LTD V. NDIC (2008) 6 NWLR (PT. 1083) 254; ABACHA V STATE (2001) 3 NWLR 699) 35; IKECHUKWU V. NWOYE (2014) 4 NWLR (PT. 1397) P. 239 PARAS B-C. The learned counsel contended that it is statutory that Courts should have power to enforce its judgment to avoid abuse of Court process.

Thus, the trial Court should have powers to command obedience to its orders and to punish erring parties. He submitted that the Court rightly invoked its constitutional powers to punish erring parties who wanted to frustrate the ruling of the Court. He cited MODILE V. GOVERNOR LAGOS STATE (2004) 12 NWLR (1887) 354 AT 363 P. IN STATOIL (NIG) LTD V. S.D.W.P (2015) 17 NWLR (PT. 1489) P. 551 PARAS F-G; EZENWANKWO V. STATE (2015) 2 NWLR (PT.1443) P279. PARA B; EZEGBU V. F.A.T.B (1991) 1 NWLR (PT. 220) 669, ABIODUN V CHIEF JUDGE, KWARA STATE (2008) ALL FWLR (PT.448) 340; ADEFARATI V.

GOVERNOR OF ONDO STATE (2006) 1 NWLR (PT. 960) 145; BASS. & MATT. ENG. (NIG) LTD V. KEYSTONE BANK LTD (2015) 1 NWLR (PT. 1441) P. 624 PARAS A-C. The learned counsel finally submitted that the trial Court had jurisdiction to determine committal proceedings against the 1st Appellant who was served with forms 86 and 87 as required by law, hence, the contempt proceeding was properly commenced. He cited EZENWANKWO V. STATE (2015) 2 NWLR (PT. 1443) P 279, PARA B; DR RABIU KWANKWASO V. THE GOVERNOR OF KANO STATE & ORS. (2006) 14 NWLR (PT. 1000) 444.

He urged the Court to dismiss the appeal for lacking in merits. Mohammed Ndarani Mohammed, SAN for the 2nd Respondent in response submitted that the Court of law has the inherent jurisdiction to sanction or discipline erring parties in a suit in order to maintain the sanctity and respect of the judiciary, and to also redesign the reliefs of the parties in a suit. He contended that any act done during the pendency of a suit in order to render a suit nugatory and/or in flagrant disrespect and disobedience of a Court order as in this case, cannot be qualified as nothing but a contempt of Court.

He cited N.S.T.I.F V. IYON (2014) 9 NWLR 9 (PT 1422) PP 3429-350, Paras H-A; MUHAMMED BUHARI & 2 ORS V. CHIEF OLUSEGUN OBASANJO & 267 ORS (2003) 17 NWLR (PT 850) 587 SC; EE IBERIA TRUST LTD V. FOUNDERS TRUST & INVESTMENT CO. (1932)2 KB. 87, ALSO THOMAS V. MOULD (1968) ER 963. The learned silk contended that when an injunctive order is made, it operates until it is revoked on appeal or by the Court itself and it has to be obeyed whether or not it should have been granted or accepted in the first place. He cited ROSSEK V. A.C.B. (1993) 8 NWLR (PT 312) 382 AT 389.

Mohammed Ndarani Mohammed, SAN submitted that the principles enshrined in the law of contempt are there to uphold and ensue the effective administration of justice. He cited ACHIKE J.S.C CANDIDE V. EDIGUN (1990) 1 NWLR (PT 129) 659 AT 668; EZEKIEL HART V. EZEKIEL HART (1990) 1 NWLR (PT. 126) AT 289. He finally submitted that the case of the Appellant is a pure case of contempt of Court order, and the Court has the inherent jurisdiction to sanction any erring party and urged the Court to so hold.

Olumide Philips, Esq., in his reply contended that though the trial Court has inherent judicial powers, it nevertheless did not have the jurisdiction to exercise its inherent judicial powers as they are two different things. He submitted that inherent judicial powers cannot expand or extend the jurisdiction of a Court. He relied on GOMBE V. PW. NIG. LTD. 1995 7 S.C.N.J. 19 AT 37 – 38; IBERO V. OBIOHA (1994) 1 S.C.N.J. 44 AT 52. He further submitted that the Court acted without jurisdiction when it tried the Appellants summarily. He cited NZIDEE & ORS V.

KOOTU & ORS (2006) LPELR-5519 (CA); SECTION 6 (6) OF THE CONSTITUTION (CFRN 1999); SECT10N 72 OF THE SHERIFFS AND CIVIL PROCESSES ACT, LFN, 2004 AND ORDER IX RULE 13 OF THE JUDGMENT (ENFORCEMENT) RULES. He contended that the Appellants’ alleged contempt was not before the trial Court hence it is ex-Facie and requires personal service which was not complied with. He cited ATAKE V. AG OF THE FEDERATION & ANOR (1982) LPELR-586(SC); DIKIBO V. IBULUYA (2006) 16 NWLR (PT. 1006) 563 AT 577-579 PARAS H-B. He urged the Court to allow the appeal.

RESOLUTION OF SOLE ISSUE Jurisdiction is the threshold and life wire of any matter. See GOLIT V. I.G.P. (2020) 7 NWLR (PT. 1722) 40 (P. 55, PARA. G) (SC). In determining the jurisdiction of a Court, what the Court considers is the Originating Process and the Statement of Claim of the Plaintiff. In the instant case where the Originating Process is an Originating Summons, which was letter converted to a complaint, the Court will look at the reliefs as endorsed therein to determine its jurisdiction. See CRESTAR INT. NAT. RES. LTD. V. S.P.D.C.N. LTD (2021) 16 NWLR (PT. 1800) 453 (SC); C.B.N. V.

RAHAMANIYYA G.R. LTD. (2020) 8 NWLR (PT. 1726) 314 (SC). Jurisdiction is a question of law and it can be procedural or substantive. It is fundamental and so can be raised at any time and once it is raised, it must be addressed to clear the way for further steps. See BAKARI V. OGUNDIPE (2021) 5 NWLR (PT.1768) 1 (SC); BELGORE V. F.R.N (2021) 3 NWLR (PT. 1764) 503 (SC). Jurisdiction connotes the authority, competence and legal power which a Court of law or Tribunal wields to hear a matter before it and reach a decision on such a matter.

A Court of law is vested with jurisdiction to hear a matter when: (1) it is properly constituted as regards numbers and qualifications of members of the bench, and no member is disqualified for one reason or another; (2) the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and (3) the case came before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.

These three ingredients must co-exist in order to vest jurisdiction in a Court. Once a Court lacks jurisdiction, a party cannot use any statutory provision or common law principle to impose it because absence of jurisdiction is irreparable in law. See MADUKOLU V. NKEMDILIM (2006) 2 LC (2081961) NSCC (VOL. 2) 374 AT 379; TUKUR V.

TARABA STATE (1997) 6 SCNJ 81. ​ Herein, it is the argument of the Appellants that the trial Court lacked the jurisdiction to try them for contempt as there was no Court order to be disobeyed and the requirements of the law was not complied with as regards procedure for committal for contempt. Now, on the first leg of their argument; that there was no valid Court order to be disobeyed. One may want to ask what a Court order is. A Court order is a direction issued by a Court requiring a person to do a thing or restraining a person from doing a thing.

It is the pronouncement of the Court on any issue before it. It can come as a directive or as a pronouncement. It is binding on all parties until it is set aside either by way of appeal or by the same Court that made the order. The argument of the Appellants is that the order of the Court issued on 6th December, 2017, upon which the application for contempt is predicated does not qualify as a Court order, rather, it is a bench advice.

From the record of proceedings before this Court, specifically pages 191-192 of the Record, the Court on 6th December, 2017 after hearing the motion for the interlocutory application said: “This suit is adjourned to 6/2/18 for ruling. Meanwhile, parties should not do anything that will in any way affect or jeopardize the consideration of this application. Hearing notice should be issued and served on the 3rd Defendant.

Proof of service to be kept in the case file.” Flowing from the above, the fact that the Court ordered parties not to do anything that will affect its ruling appears obvious to me. In other words, the Court intended that parties should maintain status quo so as not to render its ruling unenforceable. In fact, even without any directive from the Court, it is already settled in law that once an issue is before a Court for determination, parties are to restrain from doing anything that will render the decision of the Court unenforceable. The Apex Court in ABOSELDEHYDE LAB. PLC V. UM.B.

LTD. (2013) 13 NWLR (PT. 1370) 91 (SC) held that: “Every order of a Court which commands or forbids is an injunction.” In the instant case, the injunction adjourned for ruling was seeking to restrain the Appellants from holding national delegates conference with a view to instituting new leadership. The act of doing the same thing which is sought to be restrained and which issue is already pending for determination before a Court of competent jurisdiction seems to be a flagrant abuse of Court process; disobedience and disrespect to the Court system.

It is the position of the law that a decision of a Court not appealed against remains binding and subsisting for and or against parties thereto irrespective of whether the decision feels right or wrong. See O & O NETWORKS LTD V. BROAD COMMS. LTD. (2021) 5 NWLR (PT. 1770) 454 (CA); ECOBANK TRANS INC. V. BROAD COMMS. LTD. (2021) 5 NWLR (PT. 1769) 209. Therefore, the decision of the trial Court that parties should not do anything that will affect or jeopardize the consideration of the application is binding on all the parties herein. I hold that the disobedience of the same suffices as contempt.

Contempt of Court is an affront or challenge to the authority and dignity of the Court. It can be either contempt ex facie curiae or contempt in facie curiae and the Court has different procedure for dealing with each type of contempt. See BRITTANIA-U (NIG.) LTD. V. SEPLAT PET. DEV. CO. LTD. (2016) 4 NWLR (PT. 1503) 541 (SC). Contempt of Court is any act or conduct which interferes with the course of justice, and tends to bring the authority and administration of law into disrespect.

It is a contempt to disobey an order either to do a specified act within a specified time or to abstain from doing a specified act. It is obvious that the administration of justice can only be effective if the Court has the means to enforce its judgments or orders which the Appellants herein have made impossible for the Court by conducting the national delegate conference and electing new executives, the same acts sought to be restrained. The acts of the Appellants is such that renders the effort of the Court hopeless.

Contempt in facie curiae is contempt in the face of the Court and it is punishable summarily for the sake of maintaining the dignity and the authority of the Court. While contempt ex facie curiae being a contempt committed outside the Court is criminal in nature and may not be punished summarily. In the instant case, the Respondents’ complaint was that the Appellants violated the order of the trial Court restraining the parties from doing anything that will affect the ruling of the Court when the Appellants went and held the National Delegates Conference and conducted the election.

It is contempt ex facie curiae. Hence, it cannot be tried summarily. ​ The Appellants have argued that the application for contempt was not served on them personally. The requirement of the law is that application for contempt ex facie curiae must be served on the parties personally or through their counsel. See Order 63 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017.

The Respondents herein had at the trial Court averred in an affidavit as contained at pages 106-109 of the Records of Appeal, specifically at page 109, paragraph 17 that the application was served on the Appellants through their counsel, Dr. Baba Tetengi, SAN. The Appellants herein in their counter-affidavit as contained at pages 126-128 never disputed this averment.

The position of the law is settled that the content of an affidavit can only be challenged by a counter-affidavit. The Court is required to treat unchallenged and uncontroverted depositions of facts in an affidavit as duly established. See MABAMIJE V. OTTO (2016) 13 NWLR (PT. 1529) 171 (SC), OGOEJEOFO V. OGOEJEOFO (2006) 3 NWLR (PT.966) 205 (SC), UJOMU V. OLAFIMIHAN (2021) 19 NWLR (PT. 1784) 331 CA. The Appellants having failed to challenge the service through a counter-affidavit, the same remains uncontroverted and hence admitted.

I hold that the service was effected through their counsel and it is a proper service. In conclusion, I agree with the submission of learned counsel for the 1st Respondent and the learned senior counsel for the 2nd Respondent that the Court has jurisdiction to hear the application for committal for the disobedience of the order of the Court made on 6th December, 2016 which was an affront to the powers of the Court. I further hold that the requirement of the application for committal for contempt was duly complied with.

This issue is resolved in favour of the Respondents and against the Appellants. Accordingly, this appeal lacks merit and the same is hereby dismissed. The ruling of the National Industrial Court of Nigeria delivered on 1st November, 2018 by Sanusi Kado, J., in Suit Number: NICN/ABJ/31/2016; wherein the learned trial Judge ordered committal summons to be issued against the 1st Appellant is hereby affirmed. Costs of N100,000.00 in favour of the 1st and 2nd Respondents respectively.

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I read in draft form the judgment just delivered by my learned brother, UCHECHUKWU OYENMENAM, JCA. I agree that the appeal be dismissed as it lacks merit and I also hereby dismiss it. I abide by orders in the leading judgment.

MOHAMMED MUSTAPHA, J.C.A.: I have had the privilege of reading in advance the judgment of my learned brother, UCHECHUKWU ONYEMENAM, JCA just delivered. I agree with his conclusions that the appeal lacks merit and it is accordingly dismissed. I abide by the consequential order of costs assessed at N100,000.00 only in favour of the 1st and 2nd Respondents.