Hon. Commissioner for Education & Ors v. Amadi

This appeal is against the ruling of the Court of Appeal, Port Harcourt Division, which had on the 6th day of December, 2000 granted the respondent’s application to set aside the appointment of the 3rd appellant as substantive Provost of Alvan Ikoku College of Education, Owerri. The respondent had on the 15th day of June, 2000 filed a motion on notice before the lower Court claiming the following reliefs:

“Order of Court”:

(a) Setting aside the appointment of the 3rd respondent as a substantive provost of the Alvan Ikoku College of Education, Owerri made during the

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Pendency of an application for interlocutory injunction to restrain the respondents from appointing a substantive Provost Pending the determination of the appeal filed against the judgment of the High Court Imo State delivered by Alinnor J. sitting at High Court, No.1, Owerri in Suit No. HOW/157 m/99 – PROF L. E AMADI v. HON COMMISSIONER FOR EDUCATION AND OTHERS ON 28th FEBRUARY, 2000.

(b) Stay of the hearing of the application for interlocutory injunction pending at the High Court, pending the hearing of this application.

The appellants opposed the application on the following two grounds that:

(i) The application was an abuse of the process of Court in that a similar application was pending at the Imo State High Court and awaiting ruling of Court.

(ii) The applicant had not shown any special circumstance which made it impossible or impracticable to have brought the application in the High Court first.

The lower Court overruled the objection and granted the first arm of the prayers.

The brief facts of this case are that on the 26th August, 1999 at the High Court, Owerri, the respondent filed an application for an order of certiorari to remove to the Court for purpose of being quashed:

(a) the government white paper on the Report of the Panel on Alvan Ikoku College of Education,

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Owerri for the period 1997 to 1999 as it affects the applicant which said white paper is dated 6th May, 1999;

(b) the letter of termination of the appointment of the applicant as the Provost of Alvan Ikoku College of Education, Owerri, which letter is dated July, 21, 1999;

(c) the appointment of the 3rd respondent as Acting Provost of the college.

The High Court per its judgment delivered by Alinnor J. (as he then was), on the 28th day of February, 2000 dismissed the application. Consequent upon the above, the respondent appealed against the dismissal to the Court of Appeal.

On the 6th day of March, 2000, the respondent filed a motion for interlocutory injunction pending the appeal, restraining the appellants from appointing a substantive provost to the Alvan Ikoku College of Education (AICE) Owerri. On the 5th day of April, 2000 the respondent’s counsel informed the High Court that the 3rd appellant had been appointed a substantive Provost, A.I.C.E, Owerri, the subject matter of his application for interlocutory injunction. The learned counsel therefore sought for an order that the said appointment be set aside pending the determination of the appeal. Counsel to both parties addressed the Court and following which the Court adjourned the proceedings to “17/5/2000 for continuation”. Pages 34-36 of the record of appeal is in evidence. It is also the contention of the

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appellants that during the pendency of the motion before the trial High Court, the respondent in this Court filed another application before the Court of Appeal, asking for the same relief to set aside the appointment of the 3rd appellant as substantive Provost A.I.C.E. Owerri. The lower Court granted the application which is now the grouse of this appeal. The notice and grounds of appeal to this Court were filed on 13th December, 2000 raising two grounds of appeal.

In compliance with the Rules of this Court, briefs were exchanged by parties. While the appellants’ brief of argument was dated 23rd April, 2004, and deemed filed by the order of this Court on 7th July, 2005, that of the respondent was dated 3rd November, 2006 and filed on 6th November, 2006. On the 5th November, 2012 both learned counsel representing parties adopted and relied on their respective brief of argument.

While the learned counsel S. A. Njoku (Att. Gen.) Imo State submitted in favour of allowing the appeal, Mr. Alogie of counsel on behalf of the respondent urged that the appeal be dismissed.

The appellants, for the determination of this appeal raised two issues as follows:-

1. Whether the Court of Appeal was right to have heard and granted the respondent’s application before it notwithstanding that it was an abuse of the process of Court.
2. Whether the respondent as applicant before the Court of Appeal had shown any special

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circumstances which made it impossible and impracticable to have first brought the application in the High Court.

The respondent on his behalf also formulated a lone issue wherein he posed a question thus:-

“Whether the Court of Appeal lacked the competence to hear the application by the respondent to set aside the appointment of a substantial (sic) provost.”

The respondent’s issue is closely aligned with the appellants’ issue one. I will therefore deem it pertinent to adopt the issues formulated by the appellants. The two issues will also be treated

The totality of the appellants’ argument is challenging the co-existence of two identical applications before the High Court and the Lower Court respectively. The consequential effect learned counsel submitted was an abuse of Court process. Furthermore that the respondent had failed to show any special circumstance as to why the application should be brought in the Court of Appeal.

In his submission the learned appellants’ counsel was resolute wherein he argued that once a Court is satisfied that any proceeding before it is an abuse of process it has the power, and indeed the duty to dismiss or strike it out. Reference was copiously relied upon Order 3 Rule 3(4) of the Court of Appeal Rules 1981, as amended, and which was relevant at the material time. Reliance was also placed on the cases of Ilonze V. Ilonze (1995) 7 NWLR (pt. 408) 495; COP v. Dr. Fredrick Fasehun

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(1997) 6 NWLR (PT.507) 170 at 180; that the applicant had also failed to show any special circumstance which made it impossible or impracticable to first apply to the High Court; that the Court of Appeal ought therefore to have refused the respondent’s application. Learned counsel submitted further that the “special circumstance principle” had nothing to do with the conduct of the applicants and hence the question whether it was reprehensible or not was therefore not an issue for consideration which would make it impossible or impracticable to first apply to the High Court; that the case of Ezegbu relied upon by the lower Court is remarkably distinguishable from the case at hand which is on all fours with Ilonze v. Ilonze supra. Counsel noted that the Lower Court ought also to have refused the respondent’s application as it did in the case of C.O.P v. Dr. Fredrick Fasehun supra and that this Court should in the same vein and applying the principle in Kalu v. Odili (1992) 5 NWLR (Pt. 240) 130 allow this appeal. Counsel was of the view that the order setting aside the appointment of the 3rd appellant as substantive Provost of Alvan Ikoku College of Education (AICE) Owerri should be held to have been wrongly made by the Court of Appeal and therefore be set aside.

On behalf of the respondent, his learned counsel submitted a total misconception by the appellants counsel. He however conceded the fact that a similar application was not only pending before the High Court but that argument had been concluded by both counsel and instead of the learned trial judge adjourning the case for

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ruling, he adjourned same “for continuation”. The learned counsel submitted at great extent and justified the lower Court’s ruling which he argued was predicated on the consideration of the “special circumstance principle”; that having regard to the situational happenings in this, case, it was preposterous for the appellants counsel to argue on their brief that there was no issue of special circumstance making it impracticable to apply to the Court below and waiting for its ruling. Counsel submitted and re-iterated that the lower Court did satisfy itself that the respondent had shown that special circumstances existed which prompted the learned justices to entertain the application before them. Counsel also noted that an exercise of discretion is generally not appealable save where it is shown that the Court in exercising such discretion had done so on a wrong principle albeit on wrong consideration, grounds or to ignore some right consideration. The case of U.B.A v. Stahlbau GMBH (1989) 3 NWLR (pt 110) 374 was cited in support of his submission; that the appellants in this appeal have not attacked the propriety of the substantive decision of the lower Court to set aside the appointment, but rather on a perceived infringement of Order 3 Rule 3(4); that unless injustice is occasioned thereby, noncompliance with a rule of Court does not operate to nullify an act or decision which is otherwise correct and just. In support of his submission, counsel also relied on the case of Katto v. CBN (1991) 9 NWLR (pt 214)

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126 at 147; that Order 7 Rule 3 also applies to save a proceeding where there is non compliance.

Following from the foregoing, the learned counsel then observed that the appellants have not shown what injustice they suffered, taken for granted the rule was infringed; that the lower Court properly satisfied itself that there was a sufficient special circumstance and which this Court should uphold and not interfere therewith the exercise of discretion. Counsel finally rounded up his submission that the appeal is lacking in merit and should therefore be dismissed.

With reference to the record of appeal before us, it is an established fact that as at the time the application subject of this appeal was entertained by the lower Court, there was a corresponding identical application subsisting before the High Court of Imo State. The confirmation of this is the lower Court’s pronouncement at page 57 of the record wherein it said:-

“Inspite of the pendency of the appeal – and the application for interlocutory injunction, the other Respondents went ahead and on 13/3/2000 appointed 3rd respondent as the substantive provost. When the application for interlocutory injunction came up for hearing before Alinor, J as he then was, …

Rather than rule on this point, there and then or fix ruling for any other specific day, the learned judge adjourned on record the continuation of the hearing of the application for interlocutory injunction to 17/5/2000 …”

It is obvious from the foregoing therefore that the

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lower Court was well aware of the pending application before the trial High Court.

Order 3 Rule 3(4) of the Court of Appeal Rules 1981 provides thus:-

“Wherever under these Rules an application may be made either to the Court below or to the Court, it shall not be made in the first instance to the Court except where there are special circumstances which made it impossible or impracticable to apply to the Court below.”

(emphasis supplied)

From the foregoing provision, it follows squarely that before such an application could be made to the Lower Court, it must satisfy the “special circumstance principle.” In other words it must be clear and shown on the affidavit evidence in support of the application that there exists special and exceptional circumstances which will make the Court of Appeal entertain the application. It must also be evident that for the circumstances to apply, it must be such that it is impossible or impracticable to first apply to the trial Court. This is confirmed by the use of the word shall as provided by Order 3 Rule 3(4) supra which is mandatory and not directory.

The matter in the case at hand had gone beyond the laid down regulations by the Rules of Court governing the procedure wherein the subsisting application before the High Court had been argued and therefore nearing completion.

The poser at this point is, whether the application before the Lower Court infact did satisfy the

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requirement of Order 3 Rule 3(4) of the Court of Appeal Rules as envisaged. At page 57 of the record of appeal for instance this was what the lower Court said in its ruling:-

“Inspite of the pendency of the appeal and the application for interlocutory injunction, the other Respondents went ahead and on 13/3/2000 appointed 3rd respondent as the substantive provost. When the application for interlocutory injunction came up for hearing before Alinor, J as he then was, Chief Ahamba, SAN, for the Applicant moved the Court extensively, albeit orally, to set aside the appointment pending the determination of the application for interlocutory injunction. He moved the Court in exercise of its disciplinary jurisdiction and to preserve, the res. The learned Assistant Director of Civil Litigation Mrs. J. C. Igwe, addressed the Court on the point on 13/1/2000. Rather than rule on this point there and then or fix ruling for any other specific day, the learned judge adjourned on record the continuation of the hearing of the application for interlocutory injunction to 17/5/2000 indicating nothing as to the fate of the oral application. Feeling left in an uncertain state, the applicant has brought this application before us.”

Also at page 59 of the record, the lower Court further held and said:-

“The circumstances of this case are almost identical with those of Ezegbu’s case. In that case, while the applicants’ application for interlocutory injunction was pending, the respondents went

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ahead and did what was being sought to be restrained by the application for interlocutory injunction. Just like the respondents before us now have done, the respondents there sought to set up their act complained of against the Court’s authority.

This Court had no difficulty in resolving that they could not do it. The Court granted the applicant’s prayers and reserved the action taken by the contumacious respondents during the pendency of the application for interlocutory injunction. The conduct of the respondents before us is as reprehensible as that of the respondents in that case. I shall, therefore, apply the same treatment on them as was applied in the earlier case.”

The “special circumstance principle” is not an imaginary concept but it is factual and which must be deposed to on an affidavit. It must also be a point of reference as to lay the foundational reasonings supporting the exercise of discretion in the granting of the application.

The exercise of discretion as rightly submitted by the learned respondent’s counsel is not generally appealable but must be judicious and judicial and not whimsical or irrational. It will therefore be subject of appeal where it is shown that the Court in exercising the discretion had done so on a wrong principle or consideration. The case in point is U.B.A v. Stahlbau GMBH (1989) 3 NWLR (Pt 110) 374 at 388 wherein Obaseki JSC expounded the concept thus:

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“If a judge consider matters which are not before him and makes them the basis of the exercise of his discretion, he is exercising his discretion on wrong considerations. If there are facts by affidavit evidence before the judge and he fails to evaluate and assess the facts before exercising his discretion, he has failed to exercise is discretion judicially.”

I hasten to state at this point that throughout the ruling by the lower Court reproduced supra, there is no reference indicating any special circumstance which made it impossible or impracticable for the respondent to have waited for the outcome of the application pending before the High Court.

The generality of the lower Court’s ruling is rather reprehensive of the appellants’ conduct and this does not come within the special circumstance requirement. The lower Court in its ruling from all indications took into consideration the conduct of the appellants as the basis for the exercise of its discretion.

It is an established principle of law and which is well settled that in situations of this nature, where there are multiple actions between the same parties on the same subject matter, the consequential effect is an abuse of judicial process. In otherwords it is a situation where a party improperly uses judicial process to the irritation, annoyance and harassment of his opponent, not only in respect of the same subject matter but also where the issues are the same in the other action or actions. This principle has been well enunciated in the case of Ikine and Ors V. Edjerode & Ors

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(2001) 8 NSCQR 312 at 383 – 384.

Also in the case of Attorney-General Ondo State v. Attorney-General, Ekiti State (2001) 8 NSCQR 45 Karibi-Whyte JSC at page 89 on the same principle had this to say:-

“The third relief in the instant case which is on identical terms with the action pending in the Court of Appeal is therefore an abuse of process of Court …I agree with Mr. Adewale, Hon. Attorney-General of Ekiti state, that the action seeking in this Court for a relief already before another Court in a pending action between the parties is without doubt an abuse of the judicial process.”

The law is also firmly established that once a Court is satisfied that any proceedings before it is an abuse of process, it has the power and the duty to dismiss or strike it out. This principle is well enshrined again in the cases of Onyeabuchi v. INEC (2002) 10 NSCQR 58 at 74 and Arubo V. Aiyeleru (1993) 24 NSCC (Pt. 1) 255 at page 268.

With reference also to pages 34 – 36 of the record of appeal, the proceedings of the High Court were adjourned from 5th April, 2000 to the 17th May, 2000. The respondent was unable to wait and hence his further application to the Court of Appeal. In the case of Ilonze V. Ilonze under reference supra the Court of Appeal in a similar situation refused to exercise its discretion and therefore refused the application. The refusal was sequel to the appeal not having been entered in that Court and hence had rendered the application

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premature. The application in that case which was also first made to the Court of Appeal did not satisfy the special circumstance requirement which made it impracticable to first apply at the High Court. The present case at hand is on all fours with the case in reference which the same lower Court ought also to have refused.

In the same vein, the Court of Appeal in another decision in the case of COP v. Dr Fredrick Fasehun under reference supra, made it clear that since the trial Court had adjourned the application for ruling, the applicant ought to have waited for the outcome and not filed a similar application before the Court of Appeal. The applicant in that case was therefore held in breach of the provision of Order 3 Rule 3(4) of the Rules of that Court.

It is worthy of note to state that the lower Court significantly relied on the case of Ezegbu v. F.A.T.B Ltd (1992) 1 NWLR (Pt.220) 699 at 723, 725 and 726, and granted the application in question. The specific reference made by the lower Court in that respect had been reproduced earlier in the course of this judgment.

I also hasten to add and as rightly submitted by the learned appellants’ counsel, that throughout the ruling quoted earlier, there is no mention by the Court of any special circumstance, reason, deposed to on the affidavit in support of the application and which made it impossible or impracticable for the respondent to have waited for the ruling by the High Court.

Briefly and on the reliance made by the lower Court

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on Ezegbu’s case I further hasten to state that the authority is not on all fours but highly distinguishable from the case under consideration. In that case for instance, the application to set aside the proceedings in which the old Board of Directors was dissolved in the Extra-ordinary General Meeting and a new one constituted was not brought in the Court of Appeal at the first instance. It is also pertinent to state that the application before the High Court in that matter was dismissed vide its Ruling on the 18th November 1991 and that was before the subsequent same application was made to the Court of Appeal. This is unlike the case at hand.

While in that case the application was also made to the Court of Appeal at a time when nothing was pending before the High Court, in the present case, the application was made to the Court of Appeal, notwithstanding that the Ruling before the High Court was yet to be delivered. It follows therefore that the requirement of a special circumstance consideration which was relevant in the present case, was not however a relevant consideration in Ezegbu’s case because they had actually applied at the High Court and the ruling having been delivered.

I will also deem it fit to add that in bringing the application at the Court below without waiting for the adjourned date for the Ruling, the respondent did not attempt or make any, effort to show on his affidavit before that Court of any existing special circumstance which made it impossible or

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impracticable to await as mandatorily required by the law.

For the foregoing reasons so advanced; there is therefore no basis for the comparison of the two cases which are divergently different from the other and are not on all fours as wrongly conceived by the learned appellants’ counsel. The learned justices of the lower Court, I hold, greatly erred in holding that Ezegbu’s case applied to the case at hand. The respondent ought to have waited for the outcome of the ruling by the High Court and not gone to the Court of Appeal and hence jumped the gun.

The two issues taken together are both resolved in favour of the appellants.

The appeal is therefore allowed and I hereby set aside the ruling of the Court of Appeal Port Harcourt Division delivered on the 6th day of December, 2000. I make no order as to costs.

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