EVANG. NICHOLAS OFFOR & ORS v. HIS WORSHIP, M. D. KANU ESQ (2016)

EVANG. NICHOLAS OFFOR & ORS v. HIS WORSHIP, M. D. KANU ESQ

(2016)LCN/8334(CA)

In The Court of Appeal of Nigeria

On Monday, the 21st day of March, 2016

CA/PH/67/2008

RATIO

COURT: PREROGATIVE WRITS; ROLES OF JUDEX OR THE INFERIOR COURT OR TRIBUNAL OR AMINISTRATIVE PANEL IN ALL ACTIONS IN FROM OF PREROGATIVE WRITS

It must be stated that in all actions in form of prerogative Writs the Judex or the Inferior Court or Tribunal or Administrative Panel involved has always being the indisputable party and Respondent to such proceedings. That is the reason where a Customary Court or Panel is involved the Chairman and Members of the Court or Panel have always been made parties.
See: HRH IGWE KRIS ONYEKWULUJE & ANOR. VS. BENUE STATE GOVERNMENT & ORS. (2015) 7SCM 197 at 222 G -I per KEKERE – EKUN JSC. per. PETER OLABISI IGE, J.C.A

COURT: THE POSITION OF THE LAW WHERE A COURT RAISES AN ISSUE SUO MOTU

The avowed principle and settled position of the Law is that where a Court raises an issue Suo Motu, it behoves that Court in line with the principle of fair hearing enshrined in Section 36(1) of the 1999 Constitution as amended or altered to give the parties to the Suit particularly the party likely to be adversely affected an opportunity of being heard before a decision is taken on the issue raised Suo Motu. See: JENKINS GANE DUVIE GWEDE VS. INEC & ORS. (2014) 18 NWLR (PART 1438) 56 at 93 per ONNOGHEN, JSC who said: “Though it is settled that a Court may raise an issue Suo Motu but where it decides to base its decision on the matter on the issue so raised, the Court is duty bound to invite Counsel for the parties to address on it, particularly the party who would be adversely affected by the result of the exercise. In the instant case, the Lower Court raised the issue of irregular nomination of the appellant when the issue before the Court was substitution and when the Court did not call for address of Counsel on the matter before proceeding to use same in coming to the conclusion that the nomination by substitution of appellant was irregular and consequently unenforceable.” per. PETER OLABISI IGE, J.C.A

CONSTITUTIONAL LAW: WHAT DOES THE PRINCIPLE OF THE RIGHT TO FAIR HEARING CONNOTES

Fair hearing connotes trial conducted according to all legal rules formulated to ensure that justice is done to parties and not whether the decision was correct. It is a trial which even reasonable and fair minded observer who watches the proceedings should be able to conclude that the Court has been fair to all concerned. See: VICTINO FIXED ODDS LTD. VS. JOSEPH OJO & ORS. (2010) 4 SCM 127a t 135 G – I to 136 A – G. per FABIYI JSC who said:
Let me say it right away that the right to fair hearing is a cardinal principle that is provided in Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria . It provides as follows :- “36(1) In the determination of his civil rights and obligations including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other Tribunal established by law and constituted in such manner as to secure its independence and impartiality.”
It is certain that fair hearing by a Court or other judicial Tribunal under Section 36(1) of the 1999 Constitution – the grundnorm, incorporates the audi alter am partem rule. It is that a man can never have a verdict entered against him on a matter relating to his civil rights or obligation before such a Court or Tribunal without being given an opportunity of being heard. The rule is one of the essential cornerstones or our judicial process. See: Amadi v. Thomas Aplin Co. Ltd. , (1972) 4 SC 228: Kano N. v. Obiora (1959) SCNLR 577.
In its real essence, fair hearing lies in the procedure followed in the determination of the case, not in the correctness of the decision. It is only when the party aggrieved has been heard that the trial Judge would be seen as discharging the duty of an unbiased umpire. Learned Counsel for the appellant feels that his surmised absence of miscarriage of justice ameliorates an infringement of a provision of fundamental human right. Such is not correct. The violation of the rule of audi alterant partem, per se, lies in the breach of the fundamental human right. Once the right is violated, it is irrelevant whether a decision made subsequent thereto is correct. See: Tukur v. Government of Gongola State (1989) 9 SCNJ 1; (1989) 4 NWLR (Pt. 117) 517. per. PETER OLABISI IGE, J.C.A

CONSTITUTIONAL LAW: THE RIGHT OF FAIR HEARING; THE IMPLICATION OF THE BREACH OF FAIR HEARING
It should be further stated that on a breach of the right of fair hearing, an Appellate Court does not go to the reasons for its breach or the consequences of same. It has no alternative but to allow the appeal against the decision and treat it as though there has been no hearing at all. An Appellate Court is bound to follow this course in the hearing of the appeal. See: Adigun & Ors. v. A. G. of Oyo State & Ors. (1987) 2 NWLR (Pt. 56) 197.
A denial of the right to be heard is a breach of constitutional right, natural justice and Rules of Court. Such cannot and ought not be condoned in any respect. See: Otapo v. Sunmonu (1987) 2 NWLR (Pt. 58) 587.
It is a basic and fundamental principle of the administration of justice that no decision can be regarded as a valid unless the trial Judge or Court has heard both sides in the conflict. See: Deduwa v. Okorodudu (1976) 9 – 10 S.C. 329.” per. PETER OLABISI IGE, J.C.A

JUSTICES

RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria

PETER OLABISI IGE Justice of The Court of Appeal of Nigeria

FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria

Between

1. EVANG. NICHOLAS OFFOR
2. IGNATIUS OFFOR
3. CHRISTIAN EGENTI Appellant(s)

AND

HIS WORSHIP, M. D. KANU, ESQ.
(CHIEF MAGISTRATE GD. I MAG. COURT ORLU) Respondent(s)

PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of IMO STATE HIGH COURT contained in the Order of Honourable Justice B. A. NJEMANZE made on 24th day of October, 2007 in Suit NO. HOR/111/2007 EVANG. NICHOLAS OFFOR & 2 ORS. VS. HIS WORSHIP M. D. KANU ESQ. Chief Magistrate GRD 1.

The Appellants as Applicants had by a Motion Ex – Parte dated 26th day of July, 2007 filed on 22nd August 2007 sought for leave to apply for reliefs by way of judicial review pursuant to Order 43 of the then High Court of Imo State (Civil Procedure) Rules 1988 for:

“(1) LEAVE to apply for an order of Judicial Review in terms of reliefs set out in the statement attached hereto.
(2) That Leave herein granted shall operate as a stay of all actions and proceedings in respect of the subject matter of these proceedings.
And for such further order or other orders as this Honourable Court may deem fit to make in the circumstances.
AND TAKE NOTICE that the grounds for this application are as set out in the statement

hereto attached.
AND TAKE NOTICE that at the hearing of this Motion the Applicants will use and rely on the Affidavit and Exhibits attached hereto.”

The leave sought was duly granted by the Honourable Justice NGOZI OPARA in the following terms viz:
UPON READING THE MOTION EX-PARTE brought under Order 43 Rule 1(1), (2), (3), (50, (10) of the High Court (Civil Procedure) Rules and Section 6(6) of the 1999 Constitution together with the Statement setting out the names and description of the applicants, Reliefs, Sought, Grounds upon which these reliefs are sought, Affidavits verifying the facts relief upon and the Exhibits annexed and after hearing C. G. Erendu Esq. of Counsel for the applicants, the Court hereby orders as follows:-
LEAVE IS HEREBY granted the applicants to apply for an order of Judicial Review in terms of the reliefs set out in the Statement attached thereto.
IT IS FURTHER ORDERED that leave so granted shall operate as a stay of all actions and proceedings is respect of the subject matter of these proceedings pending the final disposal of the

substantive application fixed for the 18th day of September, 2007.
Issued at Orlu under the Seal of Court and the hand of the Presiding Judge, this 4th day of September, 2007.

The Appellants thereafter filed Motion on Notice wherein the following reliefs were sought namely:
“(1) AN ORDER of prohibition directed at the Respondent stopping further proceedings in respect of charge No. MID/19c/2005: COMMISSIONER OF POLICE V. EVANG. NICHOLAS OFFOR & 3 ORS.
(2) AN ORDER OF CERTIORARI to remove into the High Court for the purpose of being quashed the following decisions of the Respondent:
(a) “The only Magistrate Court affected by the Order (i.e. Order in Suit No: FHC/OW/CS/49/2005 NICK OFFOR & 3 ORS. V. A. I. G. & 3 ORS ) is the Chief Magistrate Court, Urualla and no other Court” (words in bracket ours).
(b) The “Court has the vested jurisdiction to hear and determine the charge”.

The grounds upon which the said reliefs were predicated are that:
“(1) The Decisions complained

against were made in breach of right to fair hearing.
(2) The decisions were arrived upon are error of law.
PARTICULARS OF BOTH GROUND
The Respondent delivered the Ruling of 28th May 2007 without any reference to the reply on Points of Law of defence Counsel.
(3) Under Section 287(3) of the 1999 Constitution , a Magistrate’s Court is bound to give effect to an Order of a Court even when the presiding Magistrate is not a party.”

The facts relied upon to support the reliefs claimed are that:
“(1) Charge No. MID/19C/2005 was filed against the Applicants at the Urualla Magistrate’s Court
(2) The accused persons, then applied for the Order of Bench Warrant to be quashed, among some other Orders.
(3) On 27/06/06 the High Court Orlu delivered its Judgment in the said application which was HOR/31M/2005: EVANG. NICHOLAS OFFOR & ANOR V. HIS WORSHIP C. I. KORIE ESQ. AND ORS.
(4) On 13/11/06 the Applicants appeared before the Respondent in obedience to the Order in

the Judgment aforesaid and thereat, defence Counsel raised a Preliminary Objection based on two Orders of the Federal High Court in Suit No: FHC/OW/CS/49/2005 dated 28/4/05 and 12/5/05.
(5) On the said 13/11/06 the Prosecuting Counsel replied and opposed the Preliminary Objection. Thereafter, it was adjourned for the defence Counsel?s reply on points of law.
(6) On 9/5/07 the Defence Counsel replied on points of law and thereafter, it was adjourned for Ruling.
(7) Ruling was dated 28/5/07 and delivered on 13/6/2007, but throughout the Ruling, the Respondent did not make reference to the issues canvassed in the reply on points of law of the Defence Counsel and accordingly each and every contention in the Reply on Points of Law was ignored which led to a miscarriage of Justice.
(8) That had the respondent referred to the defence Counsel?s reply on points of law, the decision would have been different.”

Later there was an application dated 17th day of September, 2007 filed in the Appellants Suit by some Applicants who sought for an Order

striking out the Suit or in the alternative joining them as necessary parties. I think it will be right for me to reproduce the said application in Order to vividly bring out the relevant fact in that behalf. The motion reads:
IN THE HIGH COURT OF IMO STATE OF NIGERIA
IN THE HIGH COURT OF ORLU JUDICIAL DIVISION
HOLDEN AT ORLU

SUIT NO: HOR/111/2007
MOTION ON:……………….

IN THE MATTER OF APPLICATON BY
EVANG. NICHOLAS OFFOR & 2 ORS. FOR LEAVE TO APPLY
FOR AN ORDER OF CERTIORARI IN RESPECT OF PROCEEDINGS OF CHARGE NO: MID/19C/2005 OF THE CHIEF MAGISTRATES? COURT, ORLU

AND:

IN THE MATTER OF APPLICATION FOR JUDICIAL REVIEW UNDER ORDER 43 OF HIGH COURT (CIVIL PROCEDURE) RULES 2001

BETWEEN:

1. COMMISSIONER OF POLICE IMO STATE
2. H.R.H. EZE R. A. OFONZE……….. APPLICANTS

AND

1. EVANG. NICHOLAS OFFOR
2. IGNATIUS OFFOR ………….. RESPONDENTS
3. CHRISTIAN EGENTI

AND
4. HIS WORSHIP M. D. KANU, ESQ. .. RESPONDENT
(CHIEF MAG. GD I, COURT ORLU)

MOTION ON NOTICE FOR STRIKING OUT OR JOINDER OF PARTIES PURSUANT TO ORDER 43, RULE 5 (3) (6) AND RULE 9 (1) , ORDER 11 RULE 5, OF THE IMO STATE HIGH COURT CIVIL PROCEDURE RULES 1988 AND UNDER THE INHERENT JURISDICTION OF THE HONOURABLE COURT.
TAKE NOTICE that this Honourable Court will be moved on Tuesday the 18th day of ? 2007 at the hour of 9 O? Clock in the forenoon or so soon thereafter as the Applicants or Counsel on their behalf may be heard praying the Court for:
1. AND ORDER striking SUIT NO: HOR/111/2007 ? EVANG. NICHOLAS OFFOR & 2 ORS V. HIS WORSHIP M. D. KANU, ESQ. (CHIEF MAGISTRATE GD.I, COURT ORLU) for being incompetent and want of jurisdiction of the Court to entertain

same.
OR
AN ORDER JOINING THE APPLICANTS – COMMISSIONER OF POLICE IMO STATE AND H.R.H. EZE R. A. OFONZE AS RESPONDENTS IN THE SAID SUIT NO. HOR/111/2007 for the purpose of granting all the necessary parties fair hearing.
2. And for such other Orders as the Honourable Court may deem fit to make in circumstance.
AND TAKE NOTICE that the grounds upon which this application is brought are:
1. The Applicants in the said Suit No. HOR/11/2007 did not comply with the conditions precedent before the Suit was placed for hearing as provided by the Rules of Court.
2. Non Joinder of all the necessary parties to the said Suit No. HOR/111/2007.
3. The Applicants in this present motion have interest in, and are connected to the Suit No. HOR/111/2007 for they will directly be affected and bound by any order(s) or decision that will be made by the Court in the Suit.
4. The Applicants in this present motion being persons that will directly be affected and bound, are entitled to fair hearing before

the legal issues connected thereto will be resolved.
Dated at Orlu this 17th day of September, 2007.?

The Motion was stated for hearing on Tuesday 18th day of September, 2007 but later adjourned till 24-10-2007 as can be gathered from pages 70 ? 71 of the Record of Appeal.

One can see that the matter later came before the Honourable Justice B. A. NJEMANZE then sitting at ORLU JUDICIAL DIVISION of Imo State High Court on 24th day of October, 2007 whereat the proceedings for the day read as follows:
?IN THE HIGH COURT OF IMO STATE OF NIGERIA
IN THE HIGH COURT OF ORLU JUDICIAL DIVISION

HOLDEN AT ORLU
BEFORE HIS LORDSHIP, HON. JUSTICE B. A. NJEMANZE
THIS WEDNESDAY THE 24TH DAY OF OCTOBER, 2007

SUIT NO. HOR/111/2007:
BETWEEN:

EVANG. NICHOLAS OFFOR & 2 ORS. ?. APPLICANTS

AND

HIS WORSHIP M. D. KANU ESQ.
(CHIEF MAGISTRATE GD.I MAGISTRATE COURT ORLU)

…….. RESPONDENT

The parties are absent except the 3rd Applicant who is present.

APPEARANCES

C. C. ERONDU Esq. for the Applicant.

No. appearance of Counsel for the Respondent.

COURT: I have read this application for Judicial Review and I am of the opinion that it is incompetent. It is misconceived. The Applicants failed to bring the proper parties to Court. The Commissioner of Police who charged the Applicants to Court and which charge gave rise to this case was not made a party to the application for Judicial Review. Instead the Applicants chose to sue the Judex who was not a party to the charge in the Magistrate Court. I therefore hereby strike out this Suit for being misconceived and incompetent.
Signed: B. A. NJEMANZE
JUDGE
24/10/2007

CERTIFIED TRUE COPY
DEPUTY DIRECTOR OF COURTS

The Appellants were peeved and aggrieved by the above quoted proceedings and the Order of the

learned trial Judge striking out the Appellants’ Suit for being incompetent and has now appealed to this Court vide their NOTICE OF APPEAL dated 6th day of November, 2007 on 8th day of November, 2007 containing three grounds of appeal as follows:
GROUND ONE:

1. The Learned trial Judge erred in law in striking out the application suo motu thereby breaching the rights of the Applicants to fair hearing.
PARTICULARS OF ERROR
(1) Neither the Applicants nor Counsel on their behalf was heard on the reason for the striking out of the Application namely:
the non-joinder of the Commissioner of Police.
(2) The right to fair hearing under Section 35 of the 1999 Constitution is guaranteed to the Applicants.
(3) Immediately after the appearance of Counsel to the Applicants the Court proceeded to state its opinion and act upon it.

GROUND TWO:
1. The Learned trial Judge erred in holding that the application is incompetent for non-joinder of the Commissioner of

Police.

PARTICULARS OF ERROR
(1) Certiorari is a prerogative writ, which lies against a body exercising judicial or quasi ? judicial functions.
(2) The 1st Respondent in the application was the sole body exercising the judicial function that was in issue.
(3) The Commissioner of Police was/is not the party complained against and was not acting in a judicial or quasi ? judicial capacity.

GROUND THREE:
1. The Learned trial Judge erred in law in not determining the Application for joinder by the complainant in the criminal charge.
PARTICULARS OF ERROR
(1) On 24th October, 2007 when the application was struck out, there was pending before the Court an application by two persons to be joined parties in the substantive suit.
(2) The Court, instead of hearing the application for joinder, unilaterally ignored it and proceeded to the substantive application.
?(3) The Court, without hearing the application for joinder proceeded to

strike out the substantive application.

3. RELIEFS SOUGHT:
(1) To set aside the Order of the Lower Court striking out the application for judicial review.
(2) To grant the application as prayed before the Lower Court.

ALTERNATIVELY
To remit the matter to the Lower Court for trial before another Judge.?

The Appellants Brief of Argument was filed on 1st April, 2008. It is dated 12th day of March, 2008. The Respondent?s Brief of Argument dated 7th October, 2008 was filed on 19th day of October, 2012.

When the appeal came up on 29th day of February, 2016, the 1st Appellant was present in Court and he informed the Court he was unable to pay his Counsel hence he did not appear. The Respondent was also not represented. This Court then in line with Order 18 Rule 9 (4) of the Court of Appeal Rules 2011 deemed the appeal as having been duly argued.

?Two Issues were distilled by the Appellants as follows:
1. Whether the striking out of the substantive

application by the Lower Court did not thereby breach the Appellants? right to fair hearing? (Grounds 1 & 3).
2. Whether the non-joinder of the Commissioner of Police rendered the application for judicial review incompetent? (Ground 2).

On his part the Respondent couched questions for determination thus:
(a) Whether the striking out an incompetent Application by the learned trial Judge amounts to denial of Appellants right to fair hearing?
(b) Whether the learned trial Judge was not right when he held that proper parties were not before the Court.

This appeal can be resolved on the two issues formulated by the Appellants. I will treat the two Issues together.
ISSUES 1 AND 2
1. Whether the striking out of the substantive Application by the Lower Court did not thereby breach the Appellant?s Right to fair hearing (Grounds 1 & 3).
2. Whether the non-joinder of the Commissioner of Police rendered the application for judicial review incompetent? (Ground 2).

The Learned Counsel to the Appellants UKPAI O. UKAIRO Esq. argued under Issue 1 that the learned trial Judge raised the issue of incompetence of the Appellants application for judicial review suo motu on 24th day of October, 2007 without opportunity given to the Counsel to the Applicants to address the issue of incompetence raised by the trial Court.

That the settled position of the Law is that where a Court raises an Issue suo Motu it is has a duty to give the parties or their Counsel the opportunity of being heard to address on the issue raised Suo Motu. He relied on the case of BAJOGA VS. GOVT. FRN (2008) 1 NWLR (PART 1067) 85. That it amounts to breach of fair hearing to the parties. That a breach of right to fair hearing renders the proceedings void and a nullity. That in such a situation the Appellate Court may set aside the proceedings. He urged the Court to hold that there was breach of right to fair hearing of the Appellants on 24th October, 2007 which ought to be set aside. He relied on the case of NYA VS NDEM (2005) 4 NWLR (PART 915) 345.

?On Issue 2 as to whether the non-joinder of the Commissioner of Police rendered the application for

judicial review incompetent, the learned Counsel to the Appellants submitted that Respondent to application for certiorari in form of judicial review is the person acting in judicial or quasi judicial position. He relied on the cases of:
1. A. G. Lagos State V. Eko Hotels Ltd., (2006) 18 NWLR (Pt. 1011) 378.
2. ALEMULOKE V. PRESIDENT & MEMBERS IBADAN SOUTH-EAST GRADE C CUSTOMARY, MAPO, IBADAN & ANOR. (2006) 6 NWLR (Pt. 977) 612.

That in this Case the 1st Respondent, the Chief Magistrate, is a person exercising judicial authority and that was what the Appellants challenged i.e. breach of the right to fair hearing since it was the Respondent that was acting in judicial capacity. They conceded that the Police charged them but the fact of arraignment, according to them was not in issue. The Appellants urged this Court to hold that the Commissioner of Police was not a necessary party to the application.

That even of the Commissioner of Police was a necessary party the omission to join him will not result in striking out of the matter. He relied on Order 43 Rule 9(1) of the High Court (Civil Procedure) Rules of Imo State. He urged this

Court to also resolve Issue 2 against the Respondent.

In response to Issue 1 tagged A under Issues raised by Respondent, the then learned Director of Civil Litigation M. C. UWASOMBA Esq., for Respondent relayed the conditions precedent to enable a Court adjudicate upon a matter as enunciated in the famous case of MADUKOLU V. NKEMDLIM (1962) 1 ALL NLR 387.

That the right to fair hearing being a fundamental constitutional right guaranteed by the Constitution of the Federal Republic of Nigeria, the Claim for that right must stand on an effective and not on defective foundation as in the present case according to Respondent?s Counsel. That the Suit of the Appellants was improperly constituted thus robbing the Court of jurisdiction and competence. That he who comes to equity must come with clean hands. That application for certiorari must have requisite competence and where a Court finds it has no competence it has to hands off. He relied on the Case of A.N.P.P. VS. R.O.A.S.S.D (2005) 6 NWLR (Pt.920) No. at 153.

That it does not matter whether the Court raises it Suo Motu once there is no competence in a Suit the Court has discretion to strike

it out. He relied on the Case of A. C. Federation vs. Guardian Newspaper (2001) FWLR (Pt. 32) 93 H ? A.

That the application for certiorari filed by the Appellants is misconceived because the Writ can only be filed against a Tribunal exercising judicial powers where it has exceeded its jurisdiction. That complaints relating to fair hearing are matters of fair hearing and matters of appeal.

That the criminal matter before the Magistrate was within its jurisdiction and that he did not act in excess of its jurisdiction. He relied on R.V. District Officer Ex-Parte Atern (1961) ALL NLR 51 and Agumegbo v. Kagoma (2000) 14 NWLR (Pt.687) 245. He urged the Court to strike out the application for incompetent and for being misconceived.

On Issue 2 which Respondent raised as Issue 13, M. C. UWASOMBA Esq. submitted that where necessary parties are not before the Court it will affect the jurisdiction of the Court. He relied on the Case of ALAMIEYESIGHA V. TEIWA (2002) FWLR (PART 96) 552 at 577 F ? G per ADAMU JCA. That the trial Court was right in declining jurisdiction. He urged this Court to affirm the decision of the Lower Court striking out

the Appellants’ application.

Now prohibition is a Writ issued by a Court having control or supervisory authority over inferior Court or Tribunal to prevent such Court for Tribunal from unlawful assumption of jurisdiction over matters it has no powers or competence to deal with. It can also be employed by a High Court where an inferior Court or Tribunal exhibits or display bias or ill-will against a party before it.
Certiorari on the other hand is a prerogative Writ of common law origin available to the High Court in the exercise of its supervisory control over inferior Courts or Tribunal to ensure that any decision reached in excess or without jurisdiction by an inferior Court or Tribunal is quashed or vacated. The errors or excess of jurisdiction committed by the inferior Court or Tribunal must however be apparent or unsupportable on its face to the effect that the said Court or Tribunal exceeded its jurisdictional boundary. See the Cases of:
1. PROF. L. C. NWABOSHI & ORS. v. THE MILITARY GOVERNOR OF DELTA STATE & ORS. (2003) 11 NWLR (PART 831) 305 at 320 H to 321 A – G per UWAIFO JSC who said:

“The Issues the Federal Supreme Court had to decide were confined to the grounds of appeal and were also strictly in line with the grounds upon which the certiorari was sought at the trial Court. they had nothing to do with whether a writ of certiorari could lie against an executive act under common law. Although the appeal was dismissed, it was without any consideration as to whether or not the Governor-in-Council was expected to act judicially. That case completely stands on its own, deciding nothing about the functionality of certiorari, or as to the appropriateness of seeking it as a remedy upon the facts and circumstances of the case. Whereas, in Amaka v. Lt. Governor Western Region (Supra), R. V. District Officer : ex-parte Eti Atem (supra) and Obiyan v. The Military Governor of Midwestern State (supra) the central condition recognized by them for resorting to certiorari is that the body against whom it is sought must have a duty to act judicially. In R. V. Electricity Commissioners (1924) 1 K. B. 171 at 204-205, Atkin LJ, giving an overview of the functions of the writs of certiorari and prohibition, said:
“The

matter comes before us upon rules for writs of prohibition and certiorari which have been discharged by the divisional Court. but writs are of great antiquity, forming part of the process by which the King’s Courts restrained Courts of inferior jurisdiction from exceeding their powers. Prohibition restrains the Tribunal from proceeding further in excess of jurisdiction; certiorari requires the record or the order of the Court to be sent up to the King’s Bench Division, to have its legality inquired into, and, if necessary, to have the order quashed. It is to be noted that both writs deal with questions of excessive jurisdiction, and doubtless in their origin dealt almost exclusively with the jurisdiction of what is described in ordinary parlance as a Court of justice. But the operation of the writs has extended to control the proceedings of bodies which do not claim to be, and would be recognized as, Courts of justice. Wherever anybody of or persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority they are subject to the controlling

jurisdiction of the King?s Bench Division exercised in these writs.?
It is thus clear that prohibition will lie against an inferior Court to restrain it from embarking on illegality and to prevent it from proceeding with a matter it has no jurisdiction to deal with while certiorari proceeding is to enable a party who feels that the inferior Tribunal had actually taken a decision without jurisdiction or has conducted its proceedings in breach of fundamental rights of a person or in breach of other law in excess or without jurisdiction the High Court can if a case is made out grant and order or decree quashing the said proceedings or judgment of the inferior Court. One is preventing that is prohibition and the other that is certiorari is designed to undo. What the inferior Tribunal has done in excess or without jurisdiction. The errors or the wrongs committed must be apparent in the record of proceedings of the Lower Court or discernible from it. The applicant must produce the record of proceedings or judgment of the inferior Court or Tribunal complained of before a High Court can exercise its discretion to grant an order of

certiorari.”
2. HON. EHIOZE EGHAREVBA VS. HON. CROBY O. ERIBO (2010) 9 SCM 121 at 137 C – E per ADEKEYE, JSC who said:
“Ordinarily our laws by virtue of Section 272(2) of the 1999 Constitution our High Courts have the power to review administrative determinations of inferior Tribunals in that High Court has an inherent jurisdiction to control all inferior Tribunals not in appellate capacity, but in a supervisory capacity. That control extends not only to seeing that it observes the law, but also that the inferior Tribunal keeps within its jurisdiction.
The control is exercised by means of a power to quash any determination by the Tribunal which on the face of it offends against the law. This power is exercised in respect of administrative decisions of any inferior Tribunals on the ground of illegality or procedural impropriety or irrationality. OKEAHIALANI VS. NWAMAVA (2003) NWLR (PART 835) Page 597.”

The Appellants have pursuant to Order 43 of the Imo State High Court (Civil Procedure) Rules 1988 applied vide Motion Ex-Parte for Orders of prohibition and

certiorari against the Respondent. The leave sought to apply for the said Orders was granted on 4th day of September 2007 with an Order staying further proceedings before the Respondent pending the final disposal of the substantive application which was on that day fixed for 18/9/2007 for hearing.

“?It thus means that the Appellants fulfilled the condition precedent for the institution of the action in form of Judicial Review against the Respondent thus whether the Appellants would or would not succeed is another matter. It means the High Court of Imo State as at 4th September, 2007 was convinced the Appellant made out a Case for the leave to be granted and showed sufficient interest in the suit. See: IGBOHO IREPO LOCAL GOVT. COUNCIL AND COMMUNITY VS. THE BOUNDARY SETTLEMENT COMMISSIONER & ANOR (1988) 1 NWLR (PART 69) 189 at 199 C – R where NNAMANI, JSC (of blessed memory) said:
“The Federation of Self Employed and Small Business Limited (Supra) turned really on the construction of “?sufficient interest” as contained in R.S.C. Order 53 1 (2), 3 (5) in England-that is whether the Federation had sufficient interest

to apply for judicial review.
In his judgment, Lord Diplock dealt with the issue of procedure in terms which bear some relevance to the issues in this appeal. The law Lord said at Page 642 of the report.
The procedure under the new Order 53 involves two stages: (1) the application for leave to apply for judicial review and (2) if leave is granted, the hearing of the application itself………………………………………………………The need for leave to start proceedings for remedies in public law is not new. It applied previously to applications for prerogative Orders, though not to Civil actions for injunctions or declarations. Its purpose is to prevent the time of the Court being wasted by busy bodies with misguided or trivial complaints of administrative error and to remove the uncertainty in which public officers and authorities might be left as to whether they could safely proceed with administrative action while proceedings for judicial review of it were actually pending even though

misconceived.”
That indeed is the rationale for first considering the issue of leave to apply for judicial review.”

As could be seen from the record of Appeal, there was pending before the learned trial Judge an application by the Commissioner of Police Imo State and His Royal Highness EZE R. A. OFONZE seeking to strike out the Appellants Suit or for an Order joining them as Respondents to the Appellants? Suit. The Motion was not heard by the trial Judge when the matter came up before him on 24th day of October, 2007 even though the said Motion by parties seeking to strike out the case or be joined was specifically fixed for that very day the 24th day of October, 2007.

On that very 24th day of October, 2007, one of the Applicants (3rd Applicant) was in Court and the Applicants now Appellants were duly represented by their C. C. ERONDU, Esq., as recorded by the trial Judge on page 76 of the record. And without hearing from the Appellants learned Counsel who was present in Court the learned trial Judge in a most curious circumstance pronounced the Appellant?s Suit incompetent and brought it to an

abrupt end without asking for the opinion or contribution from the Appellants learned Counsel. This really is the heart of the appeal. The learned trial Judge stated the Commissioner of Police who has application seeking to be joined was a necessary party even though he has not heard any one on the Motion. He went further to say that the Judex, the Respondent in this Case was not a party to the charge in the Magistrate Court. The learned trial Judge was and is wrong in his conclusion as it is a mere surmise.

with the principle of fair hearing enshrined in Section 36(1) of the 1999 Constitution as amended or altered to give the parties to the Suit particularly the party likely to be adversely affected an opportunity of being heard before a decision is taken on the issue raised Suo Motu.
See: JENKINS GANE DUVIE GWEDE VS. INEC & ORS. (2014) 18 NWLR (PART 1438) 56 at 93 per ONNOGHEN, JSC who said:
“Though it is settled that a Court may raise an issue Suo Motu but where it decides to base its decision on the matter on the issue so raised, the Court is duty bound to invite Counsel for the parties to address on it, particularly the party who would be adversely affected by the result of the exercise. In the instant case, the Lower Court raised the issue of irregular nomination of the appellant when the issue before the Court was substitution and when the Court did not call for address of Counsel on the matter before proceeding to use same in coming to the conclusion that the nomination by substitution of appellant was irregular and consequently unenforceable.”

There is want of fair hearing to the

Appellants in this Case. The matter billed for hearing before the trial Court that day was Motion for striking out or joinder in the Suit. The parties who filed the Motion and their Counsel were absent. The Counsel to the Respondent on record was also absent. The learned trial Judge in breach of the Constitutional provisions for fair hearing went out of his way to be the Advocate for the absent parties and yet failed to accord the Appellants who were duly represented at the hearing before their Case was struck out to their chagrin.

Federal Republic of Nigeria . It provides as follows:-
“36(1) In the determination of his civil rights and obligations including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other Tribunal established by law and constituted in such manner as to secure its independence and impartiality.”
It is certain that fair hearing by a Court or other judicial Tribunal under Section 36(1) of the 1999 Constitution – the grundnorm, incorporates the audi alter am partem rule. It is that a man can never have a verdict entered against him on a matter relating to his civil rights or obligation before such a Court or Tribunal without being given an opportunity of being heard. The rule is one of the essential cornerstones or our judicial process. See: Amadi v. Thomas Aplin Co. Ltd. , (1972) 4 SC 228: Kano N. v. Obiora (1959) SCNLR 577.
In its real essence, fair hearing lies in the procedure followed in the determination of the case, not in the correctness of the decision. It is only when

the party aggrieved has been heard that the trial Judge would be seen as discharging the duty of an unbiased umpire. Learned Counsel for the appellant feels that his surmised absence of miscarriage of justice ameliorates an infringement of a provision of fundamental human right. Such is not correct. The violation of the rule of audi alterant partem, per se, lies in the breach of the fundamental human right. Once the right is violated, it is irrelevant whether a decision made subsequent thereto is correct. See: Tukur v. Government of Gongola State (1989) 9 SCNJ 1; (1989) 4 NWLR (Pt. 117) 517.
It should be further stated that on a breach of the right of fair hearing, an Appellate Court does not go to the reasons for its breach or the consequences of same. It has no alternative but to allow the appeal against the decision and treat it as though there has been no hearing at all. An Appellate Court is bound to follow this course in the hearing of the appeal. See: Adigun & Ors. v. A. G. of Oyo State & Ors. (1987) 2 NWLR (Pt. 56) 197.
A denial of the right to be heard is a breach of constitutional right, natural

justice and Rules of Court. Such cannot and ought not be condoned in any respect. See: Otapo v. Sunmonu (1987) 2 NWLR (Pt. 58) 587.
It is a basic and fundamental principle of the administration of justice that no decision can be regarded as a valid unless the trial Judge or Court has heard both sides in the conflict. See: Deduwa v. Okorodudu (1976) 9 – 10 S.C. 329.”

What happened in this Case is not justice according to Law. It is a miscarriage of justice. That being the case Issue 1 is resolved in favour of the Appellants.

I am of the view that since Issue 1 has been resolved in favour of Appellants Issue 2 having been subsumed with Issue 1, Issue 2 is also resolved against the Respondent as non joinder or joinder of the Commissioner of Police cannot affect the competence of the Appellants action.

In the result the appeal of the Appellants is meritorious and it is hereby allowed. The decision of the Imo State High Court contained in the Order of Honourable Justice B. A. NJEMANZE made on 24th day of October, 2007 striking out the Suit of the Appellants (Suit No. HOR/111/2007) is hereby set aside

and vacated .

An Order is hereby made remitting the said Suit back to the Cause List of the Imo State High Court for hearing on the merit by another Judge of Imo State High Court.
There will be no Order as to costs.

RAPHAEL CHIKWE AGBO, J.C.A. : ?I read in advance the lead judgment delivered by OLABISI IGE JCA and I agree with him that there is merit in the appeal. I too allow the appeal and abide by all the consequential orders contained therein.

FREDERICK OZIAKPONO?OHO, J.C.A. : ?I had the opportunity of reading the draft of the judgment just delivered by my learned Brother, PETER OLABISI IGE, J.C.A. I am in agreement with his reasoning and conclusions in allowing this Appeal. I also abide by the consequential orders made by this Court.

Appearances

Counsel absentFor Appellant

AND

Counsel absentFor Respondent