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Asogwa vs. Chukwu

HON. CHARLES OGBONNIA ASOGWA

HON. UCHENNA EKETE

HON. CHIJIOKE AROH

HON. FOSTER AGU

HON. FRAEBEN AGWU

HON. UCHENNA ANYA

HON. JONATHAN CHUKWUMA

HON. CALLISTUS NNAMANI

HON. KENNETH OGBOZOR

HON. OGUEJIOFOR NDU

HON. UCHE NOMEH

HON. LINUS ALI

HON. ETHELBERT OBAYI

HON. C. C. ORJI OKPARA

HON. NWABUEZE UGWU

HON. HYCAINTH NSUDE

ATTORNEY GENERAL OF ENUGU STATE

V

THE RIGHT HON. ABEL CHUKWU

HON. DR. KINSLEY EBENYI

COURT OF APPEAL

( ENUGU DIVISION )

EUGENE CHUKWUEMEKA UBAEZONU, JCA ( Presided )

I. CHUKWUDI PATS-ACHOLONU, JCA ( Read the Lead Judgment )

CLARA BATA OGUNBIYI, JCA

CA/E/124M/2002

MONDAY, 25TH NOVEMBER, 2002

APPEAL - Ground of appeal - Mistake in the description of interim injunction as interlocutory injunction therein - Whether fatal to a party’s case

CONSTITUTIONAL LAW - Constitution - How construed CONSTITUTIONAL LAW - Executive and legislature - Duties of - Extent to which the court should interfere therewith

CONSTITUTIONAL LAW - House of Assembly - A member unanimously suspended by the House - Whether the majority can impliedly recall

CONSTITUTIONAL LAW - House of Assembly - Presence or participation of members not entitled to participate - Whether invalidates proceedings

CONSTITUTIONAL LAW - House of Assembly - Regulations of as it affects election, suspension and removal of any of its members Whether the court can be called to interfere with in view of the doctrine of separation of powers

CONSTITUTIONAL LAW - House of Assembly - Removal of Speaker of by 2/3 majority inclusive of a suspended member ostensibly recalled - Whether action in respect thereof justiciable

CONSTITUTIONAL LAW - Public officers under section 318 of the 1999  Constitution - Members of the House of Assembly - Whether within the contemplation of on whom pre-action notice must be served

CONSTITUTIONAL LAW - Section 318(1) of the 1999 Constitution Definition of public service of the state therein - Whether includes the speaker or any member of the House

COURT - Adjudicatory duty of - Need for court to refrain from interfering with internal regulation of legislature in the performance of

COURT - Competence of - When challenged - Attitude of court

COURT - Court - Jurisdiction of - When arises

COURT - Executive and legislature - Duties of - Extent to which the court should interfere therewith

COURT - Jurisdiction of - When challenged - Whether can make an order addressing an urgency - Effect of such order


EVIDENCE - Proof - Onus of proof of existence of certain facts - On whom lies

INJUNCTION - Interlocutory injunction - Mistake in the description of same in the ground of appeal as interim injunction - Whether fatal to a party’s case

INTERPRETATION OF STATUTE - Constitution - How construed

JURISDICTION - Court - Jurisdiction of - When arises

PLEADINGS - Condition precedent to an action - Fulfilment of - Whether plaintiff need to plead - How pleaded by the defendant

PLEADINGS - Pleadings and brief of argument - Basic requirements of

PUBLIC OFFICER - Definition of

PUBLIC OFFICER - The term ‘public officer’ - Person whom relates to

PUBLIC OFFICERS - Public officers under section 318 of the 1999 Constitution - Members of the House of Assembly - Whether within the contemplation of on whom pre-action notice must be served

PRACTICE AND PROCEDURE - Interlocutory injunction - Mistake in the description of in the ground of appeal as interim injunction

-  Whether fatal to a party’s case

PRACTICE AND PROCEDURE - Pleadings and brief of argument Basic requirements of

STATUTE -  State Proceedings Law Cap 131 Laws of Anambra State

( applicable to Enugu State), Section 11(2) - How applied

WORDS AND PHRASES - ‘Condition’ - Meaning of WORDS AND PHRASES - ‘Public officer’ - Meaning of

Issues:

1.              Whether section 11(2) of the State Proceedings Law Cap. 131 Laws of Anambra State 1986 was applicable to the defendants in the case and if so whether they were duly complied with by the plaintiffs before the commencement of the action.

2.              Whether the grant of interim injunction was justified and based on legal principles.

3.              Whether the issues raised are within the internal proceedings of the House of Assembly.

Facts:

The 1st plaintiff was the Speaker of the Enugu State House of Assembly while the 2nd plaintiff was the Majority Leader of the House. The 1st to 16th defendants who are members of the House convened a meeting of the House on 25th July, 2002 without the knowledge or authority of the plaintiff. Subsequently, on 13th August, 2002, the 1st to 16th defendants invaded the premises of the House and used brute force to open the door of the legislative building and its chambers and purportedly conducted a sitting of the House with the 1st defendant presiding. At the said meeting which had in attendance the 15th defendant, a suspended member of the House, the 1st plaintiff was purportedly removed from office while the 9th defendant was elected as the Speaker on 22nd August, 2002.

Plaintiffs therefore took out a writ of summons against the defendants at the High Court of Enugu State claiming amongst other reliefs, a declaration that the 1st plaintiff can only be removed from office as Speaker of the Enugu State House of Assembly in accordance with the provisions of section 92(2) of the Constitution of the Federal Republic of Nigeria.

The plaintiffs also filed a motion ex parte for an order of injunction restraining the defendants from doing some acts which may adversely affect the position of the plaintiffs. The court however ordered that the defendants be put on notice. The defendants on their part filed preliminary objection challenging the competence of the suit and jurisdiction of the High Court to entertain the matter. While the court commenced hearing of the preliminary objection, the defendants’ counsel applied for adjournment to enable him reply to some points of law raised by the plaintiffs. Plaintiffs’ counsel deemed it necessary to orally apply for an interim injunction inter alia to restrain the defendants from preventing 1st and 2nd plaintiffs from performing and discharging their functions as Speaker and Majority Leader respectively. The court ruled that there was a possibility of breakdown of law and order, there being a case of extreme urgency, it (the court) granted the oral application for interim injunction.

On the next adjourned date the court overruled the objection of the defendants and ruled that the order of interim injunction remained valid until the determination of the plaintiffs’ application on notice for interlocutory injunction.

Dissatisfied, defendants appealed to the Court of Appeal.