Eso’s landmark case

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Ojukwu vs Governor of LagosState 
It would be useful to state a few facts as disclosed on the facts placed before us preceding the present application for a good understanding of this matter.

On 10th October 1985, an ex-parte application made by Emeka Ojukwu Respondent in this Court came before the High Court of Lagos State (Omotosho J) seeking interim injunction restraining the Military Governor of Lagos State, the Commissioner of Police Lagos State” and the Attorney-General Lagos State from ejecting the said Emeka Ojukwu, who hereafter will be referred to simply as Ojukwu in this Reasons for Ruling, and members of his family from No. 29 Queen’s Drive, Ikoyi, which he referred to in his application as his house.

Late Eso

The interim order sought from the High Court was meant to operate only until there was a reasonable opportunity to have the matters in issue before the High Court dealt with. Ojukwu swore to an affidavit before the High Court that the house belonged to his father after whose death he, Ojukwu became the owner of the house.

He went on further and deposed on oath that during the period of the Civil War which lasted from 1967 to 1970, and which war he led against Nigeria, from an enclave he termed Biafra, the house remained unoccupied. After the Civil War, Ojukwu resided in the Ivory Coast and though that war ended in 1970, Ojukwu came back to Nigeria, only in 1982, after he had been granted a full pardon by the Government of the Federal Republic of Nigeria.

Ojukwu then said he moved to the house having paid the sum of N90,000.00 to the Lagos State Government for “expenses incurred by the said Government in keeping the house.” And that all the members of his family had been residing in the house before the present trouble.

The learned Judge granted the interim order for injunction on the grounds of his ownership of the house and impending threat to evict him.
The matter then moved to one of notice to the Lagos State. Ojukwu would appear, at that stage, to have changed front.

He now said the property belonged to Ojukwu Transport Company owned by his late father and that the N90,000.00 which he paid was paid to Agents in charge of the property for the purpose of securing a lease of the property.

The learned trial Judge refused equitable relief of injunction against the Lagos State Government on the ground that the property is an abandoned property and that Ojukwu had failed to show that he had a legal right to or interest in the property.

The learned Judge also said that Ojukwu had not come to Equity with clean hands. (Italics mine)

What followed was an application by Ojukwu Transport-Limited (hereinafter referred to in this Ruling as Ojukwu Transport) as a Party Interested before the Court of Appeal, asking for leave to appeal against the Ruling of the High Court and an application by Ojukwu seeking that he be “reinstated in his residence at No. 29 Queen’s Drive Ikoyi.”

The Court of Appeal went thoroughly into both prayers. One serious point brought before the Court of Appeal was that since the notice of leave to appeal was filed and served on the Lagos State Government, the Government resorted into what they termed self help and evicted Ojukwu notwithstanding the fact that his application was pending before the Court of Appeal.

The Lagos State Government used “some one hundred and fifty armed men” to evict Ojukwu, even when his suit was pending in the High Court and his application was before the Court of Appeal traced the history of such forcible eviction from time of Richard II in England and dealt with the position of the law in this country. And after a thorough investigation of the law in regard to which, I would respectfully commend the learned Justice for his industry; he came to the conclusion that the right of self-help ended when the issues were turned over to the Court.

The Court then ordered that Ojukwu be reinstated into the property, following the forcible ejection which the Lagos State Government termed self-help.

Now, and this is important. The Lagos State Government refused to comply with this order of the Court of Appeal. Or, to put it mildly, did not comply with the order. The order was made on 13th November 1985 and was in the following terms –

(ii) “Pending the determination of the appeal of the applicant against the said decision, against the respondents and in favour of the applicant an order of mandatory injunction restoring the applicant in his residence at No. 29, Queen’s Drive, Ikoyi, Lagos, and restraining the respondents and all their officers, servants, agents, and functionaries from evicting or taking any steps to evict the applicant from his residence at No. 29 Queen’s Drive, Ikoyi, Lagos.”

Rather than comply with this simple but positive order, the Lagos State Government appealed on 22nd November to this Court on the ground inter alia that
”the remedy of interlocutory injunction is not available for an act which has been carried out and concluded”

In this case, what the notice of appeal was in effect saying was that that has been carried out forcibly with over one hundred and fifty men in arms, even when the matter to be determined was before the Court of Appeal. Or to put ‘it in more legal form, carried out as a way to forestall the decision of the Court of Appeal against which an appeal is now being lodged to this Court.

Indeed, following the notice of appeal to this Court, the Lagos State Government applied to the Court of Appeal, the Court whose order has been forestalled, seeking an order pursuant to section 18 of the Court of Appeal Act for a stay of execution of the mandatory injunction granted to Ojukwu. On 3rd December 1985 Kolawole J.C.A. delivering the ruling of the Court of Appeal said inter alia –

”If the appeal of the State Government is successful the respondent can be ejected by due process of law. In this regard Chief Williams has shown magnanimity by offering an undertaking in damages by way of rental income if the State Government is successful in its appeal.

In that regard no stay would be granted. Learned Attorney-General contended before us that as Chief Ojukwu is a trespasser at 29 Queen’s Drive Ikoyi, the State Government is not prepared to accept any undertaking in damages in the form of rental income from him.”…..

Having regard to the status of irremovability acquired by Ojukwu after the judgment of this Court, it follows that the Lagos State Government is not entitled to a stay of execution because it never made out any special circumstances upon which to grant the stay. (See Keaves v. Dean (1924) 1 K.B. 685 at 686). The prayer for stay of execution is therefore refused and the application is dismissed.”

In the same Court, Ademola J.C.A. in a concurring ruling, said-
”This Court in an earlier ruling had taken the view that it was wrong to eject the respondent by force under the doctrine of self help.

It therefore seems to me that to accede to the contention of the learned Attorney-General that the status quo should be maintained is to condone what we have condemned by the judgment of this Court, earlier on. This court cannot blow hot and cold.

To be considered with our earlier ruling, this application is refused and it is hereby refused with cost.” .”(Italics mine)

The Lagos State Government still failed to comply with the order of the Court of Appeal. And I think it is this dreadful situation that prompted Chief F.R.A. Williams S.A.N. learned counsel for Ojukwu to file his notice of preliminary objection dated 11th December. I have already set out this notice earlier on in this Ruling.
We heard the two applications together.

Mr. Adelosoye the learned Solicitor General for the Lagos State pleaded for a restoration of the status quo ante the judgment of the High Court. He said Ojukwu had been in occupation for 10 months before the Lagos State Government got to know of his occupation.

Chief Williams for his part emphasized the deliberate disobedience of the order of the Court of Appeal by the Lagos State Government and that that Government was in contempt of the Court of Appeal.

I think it is a very serious matter for anyone to flout a positive order of a court and proceed to taunt the Court further by seeking a remedy in a higher court while still in contempt of the lower court.

It is more serious when the act of flouting the order of the court, the contempt of the court, is by the Executive. Under the Constitution of the Federal Republic of Nigeria, 1979, the Executive, the Legislative (while it lasts) and the Judiciary are equal partners in the running of a successful government.

The powers granted by the Constitution to these organs by s.4 (Legislative powers) s.5 (executive powers) and s.6 (judicial powers) are classified under an omnibus umbrella known under Part 11 to the Constitution as “Powers of the Federal Republic of Nigeria”.

The organs wield those powers and one must never exist in sabotage of the other or else there is chaos. Indeed there will be no federal government. I think, for one organ, and more especially the Executive, which holds all the physical powers, to put up itself in sabotage or deliberate contempt of the other is to stage an executive subversion of the Constitution it is to uphold. Executive lawlessness tantamount to a deliberate violation of the Constitution.

When the Executive is the Military Government which blends both the Executive and the Legislative together and which permits the Judiciary to co-exist with it in the administration of the country, then it is more serious than imagined.

By virtue of the Constitution (Suspension Modification) Decree 1984 No. 1 a good number of the provisions of the Constitution were suspended. Indeed, what was left was what had been permitted by the Federal Military Government to exist.

All the provisions relating to the Judiciary were saved. Section 6 of the Constitution, the most important provision, in so far as the institution known as the Judiciary is concerned, which vests in courts the judicial powers of the Federation was left extant. The Military Government had the power and still has to put an end to the existence of that provision, It has not done so, and that must have been advisedly for it does intend that the rule of law should pervade.

It is the clearest indication against rule by Tyranny, by sheer force of arms against a presumption subjecting the nation to the rule of might as against rule of right.

That being the case, it behoves of every organ of the Military Government to make it clear at all times, albeit as the presumption is always that of rule by might of the military, to assume a perennial onus of demonstrating a rebuttal of this onus.

With the contempt of the Court of Appeal by the Applicants still subsisting, it would he inequitable for this Court to give a consideration to the application of the Applicants. Let the Lagos State Government purge itself of this serious contempt, of this apparent violation of the Constitution even as amended by Decree No. 1 of 1984 before coming to seek the favour of the Court.

Another very important matter emanating from the act of the applicants. They have no right to take the matter into their own hands once the court was seised of it. The essence of rule of law is that it should never operate under the rule of force or fear. To use force to effect an act and while under the marshall of that force, seek the court’s equity, is an attempt to infuse timidity into court and operate a sabotage of the cherished rule of law. It must never be.

It is for these reasons that I dismissed the application of the applicants- The Military Governor of Lagos State, the Commissioner of Police Lagos State and the Attorney-General Lagos State on 11th December 1985 and so be it.

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