OKAFOR & ORS. v. AG & COMMISSIONER FOR JUSTICE & ORS.

U. OMO, J.S.C. (Delivering the Leading Judgment): On the 11th June, 1991, this appeal was heard and summarily dismissed. My reasons for that decision are set out hereafter.
In this interlocutory appeal, the appellants are complaining against the decision of the Court of Appeal dismissing an application filed by them in which they had sought an order of the Court of Appeal, either to dismiss an application filed by the 4th and 5th respondents on the ground that the said application is an abuse of process, or adjourn same, sine die, pending the determination of an appeal filed by the 1st to 3rd respondents in the Supreme Court “on the same complaint as the 4th and 5th respondents.”
In the application of the 4th and 5th respondent, which the appellants sought to prevent the Court of Appeal from hearing, they prayed for an order of that Court to set aside its judgment delivered on 11/4/88 in an appeal pending before it (No.CA/E/172/87) on the alternative grounds (a) that it was heard ex-parte, in the absence of the 4th and 5th defendants and (b) that it is a nullity being delivered on an appeal in respect of which there had been no hearing, contrary to the provisions of sections 33 and 219 of the Constitution of Nigeria 1979.
The relevant background facts succinctly stated are that there were two appeals before the court of Appeal filed by the present respondents (as plaintiffs/appellants). The first (and the major) is an appeal against a decision by the learned trial Judge at Awka (Obiesie, J) that they had no locus standi to prosecute the action filed by them against the present appellants (as defendants), which was before him.
The second (minor) is against an order by the same Judge made on the application of the 1st and 2nd appellants here (defendants in the High Court) to have their names struck out from the same action pending before him. When the minor appeal along with other interlocutory applications came up for hearing, counsel for both sides adopted and solely relied on their briefs of argument. In giving judgment, it is admitted by all, that the Court of Appeal in error delivered a judgment not only on the minor appeal, but also on the major appeal in respect of which there had been no hearing. It is this judgment that the 4th and 5th respondents sought to set aside. After their application was filed but before it came up for hearing at the court of appeal, the 1st to 3rd respondents filed an appeal against the judgment of the Court of Appeal to the Supreme Court. That appeal was subsequently withdrawn after the Court of Appeal had heard the application of the respondents but before it delivered its ruling refusing same. It is also common ground that no records had been compiled in respect of that appeal.
It is important to emphasize from the onset, that what the appellants here are asking this Court to do is not to decide whether or not the Court of Appeal was right in delivering the judgment the 4th and 5th respondents are complaining about, but that this Court should prevent the Court of Appeal from deciding whether it was right or wrong for it to have done so. The only contention canvassed before the Court of Appeal is summarised by Oguntade. J.C.A. thus-
“…that since the 1st to 3rd respondents have filed an appeal against the judgment delivered on 11/4/88, the application by the 4th to 5th respondents to set aside the judgment ought to lapse as this Court cannot be seen to be adjudicating over the same matter now before the Supreme Court.”
That court found no merit in that contention because as at the time the application to set aside the judgment was filed no appeal had been filed by the 1st to 3rd respondents. The Court of Appeal was therefore properly seised of jurisdiction to hear the application and determine it, and none of the parties can in any way prevent it from doing so. There was, in the view of the court below, no conflict here in the respective jurisdictions of both courts.
Four issues for determination were framed by the appellants, but in view of the arguments canvassed in this Court, only one issue needs to be considered and I frame it as follows: Is the jurisdiction of the Court of Appeal to hear and determine the application of the 4th and 5th respondents before it ousted by the appeal filed by the 1st and 3rd respondents to the Supreme Court on the same subject matter? The appellants’ answer to this issue is set out in paragraph 4, 3 of the brief and amplified in oral argument before us. It is to the effect that the jurisdiction of the Court of Appeal is ousted because the application is an abuse of process since the 1st to 3rd appellants had filed an appeal on the same issue to the Supreme Court. In counsel’s submission the defendants/appellants in the Court of Appeal had divided themselves into 2 groups – 1st to 3rd to appeal to the Supreme Court; 4th and 5th to apply to the Court of Appeal – on the same matter. By this action they “all stood to benefit from the gamble”. On the “principle and theory of hierarchy of courts” the Court of Appeal should give precedence to the Supreme Court by either adjourning the application or striking it out.
The appellants have not succeeded in showing that the Court of Appeal had no jurisdiction to entertain the application before it. The application was made under Order 3 Rule 27 of the Rules of the Court of Appeal, Sub-section (1) of which provides that:-
(1) Where an appeal has been heard ex-parte under Rule 26 and any judgment has been given adverse to the respondent, he may apply to the court to set aside such judgment and to re-hear the appeal.