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Nwankwo v. Ononeze-Madu

NDIONYENMA NWANKWO, ESQ.

CHIDI B. NWORKA, ESQ.

V

MRS. ANN C. ONONEZE-MADU

THE GOVERNOR OF IMO STATE

ATTORNEY-GENERAL OF IMO STATE

COURT OF APPEAL

( PORT HARCOURT DIVISION )

VICTOR A. O. OMAGE JCA ( Presided and Read the Lead Ruling )

JOHN AFOLABI FABIYI JCA

PIUS OLAYIWOLA ADEREMI JCA

CA/PH/124M/2004

THURSDAY, 16 TH SEPTEMBER,  2004

APPEAL - Application refused by lower court - When similar application can be made to the Court of Appeal - Order 3, rule 3(3) Court of Appeal Rules, 2002 considered

APPEAL - Commencement of - Procedure for

APPEAL - Filing of appeal in anticipation of trial court’s decision Impropriety of

APPEAL - Injunctive orders sought on appeal - Need to derive from issues determined in trial court against which appeal is sought

INJUNCTION - Injunctive orders sought on appeal - Need for to derive from issues determined in trial court against which appeal is sought

INJUNCTION - Powers of court to grant - Discretionary nature of

JUDGMENT AND ORDERS - Judgment of court - Presumption of

[2005]  All FWLR                             Nwankwo v. Ononeze-Madu                                                   1829 correctness in favour of

PRACTICE AND PROCEDURE - Application refused by lower court When similar application can be made to the Court of Appeal Order 3, rule 3(3) Court of Appeal Rules, 2002 considered

STATUTE - Court of Appeal Rules, 2002, Order 3, rule 3(3) thereof When application refused by lower court can be represented to the Court of Appeal

Issue:

Whether an order of injunction could be made on appeal where the trial court’s decision striking out the substantive suit for lack of locus standi was still subsisting.

Facts:

The applicants/appellants as plaintiffs in the High Court of Owerri, Imo State, sued the defendants/respondents contending before the trial court that the 1st respondent was not a fit and proper person to be appointed or sworn in as a Judge of the High Court, Imo State. They sought an interlocutory order restraining the swearing in of 1st respondent pending the determination of the suit. In opposing the application, the respondents filed a preliminary objection challenging the locus standi of the applicants to bring the suit. The trial court upheld the preliminary objection and ruled that the applicants had no locus standi. The applicants/appellants then applied to the Court of Appeal for an order to extend time within which to apply to the Court of Appeal for the order that was refused by the trial court. They also prayed for an injunction to restrain the 1st respondent from presenting herself to the 2nd respondent for the purpose of being sworn in as a Judge and also to restrain the 2nd respondent from swearing her in.

The counsel to the respondents contested that the present application was not founded on any appeal before the court as the applicants/appellants did not appeal against the ruling on which the injunctive orders were being sought.