CHIEF AYO OMO BARE v. CHIEF OLORUNFEMI MARK OKUN & ORS
(2012)LCN/5730(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 11th day of December, 2012
CA/B/163/2010
RATIO
JUDGMENT: DISTINCTION BETWEEN ADMINISTRATIVE DECISIONS WHICH ARE NOT APPEALABLE AND JUDICIAL DECISIONS THAT ARE APPEALABLE
I would like to draw a distinction here between administrative decisions which are not appealable and judicial decisions arrived at after hearing the parties which are indeed appealable. We have to remember that ONOGIFERE v. ITIETTE and the rules it interpreted were made before the 1999 Constitution. In DIKE v. DR. OSITA ADUBA (2000) 3 NWLR Pt. 647 Pg. 1 the Supreme Court made a clear distinction between an administrative direction by the Chief Judge of the State or the administrative judge of a judicial division to transfer a case from one court to another as against a formal application on which a trial court has been called to take a decision one way or another. PER HELEN MORONKEJI OGUNWUMI, J.C.A.
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
Between
CHIEF AYO OMO BARE Appellant(s)
AND
1. CHIEF OLORUNFEMI MARK OKUN
2. THE GOVERNMENT OF EDO STATE
3. THE ATTORNEY GENERAL OF EDO STATE Respondent(s)
HELEN MORONKEJI OGUNWUMI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of Hon. Justice G. O. Imadegbelo of the Edo State High Court refusing an application of the Appellant to transfer the substantive suit from the Abudu Judicial Division to the Sabongida Ora Judicial Division. The facts that led to this appeal are as follows:
The 1st Respondent as the Plaintiff had filed a claim for declaratory and injunctive reliefs at the High Court. The claims are set out below:
The Plaintiff claims against the Defendants jointly severally as follows:
1. A Declaration that the 2nd Defendant has no power whatsoever to appoint and/or recognize the 1st Defendant as the Traditional Ruler of luleha Clan, Owan West Local Government Area, Edo State and his purported appointment and/or recognition as such is irregular, ultra vires, unconstitutional, null and void and of no effect whatsoever.
2. A Declaration that the Plaintiff has been duly appointed the traditional Ruler of luleha Clan, Owan West Local Government Area, Edo State in accordance with the luleha native law and custom.
3. An order of this Honourable court setting aside the purported appointment and/or recognition of the 1st Defendant as the Traditional Ruler of luleha Clan, Owan West Local Government Area, Edo State.
4. An order of injunction restraining the 1st Defendant from parading himself and/or functioning or acting in any capacity whatsoever as the Traditional ruler of luleha Clan Owan West Local Government Area, Edo State.
5. An order of injunction restraining the 2nd and 3rd Defendants whether by themselves their servants, agents and workmen howsoever from dealing in any manner whatsoever with the 1st Defendant and/or installing him as the Traditional Ruler of luleha Clan Owan West Local Government Area, Edo State.
6. An order of this Honourable Court directing the 2nd and 3rd Defendants to approve forthwith the appointment of the Plaintiff as the Traditional Ruler of luleha Clan.
On the application of the Appellant herein, the case was transferred from Benin Judicial Division where it was initiated to Afuze and later to Sabongida Ora Division, to be tried de novo before His Lordship, Hon. Justice G. O. Imadegbelo (Mrs). Thereafter, the case started de novo and apparently three Plaintiffs witnesses had given evidence.
On the 28/10/09, the Plaintiff as PW4 (the 1st Respondent herein) commenced giving evidence and was duly examined in chief. On the application of the 1st Defendant (Appellant herein) the case was adjourned to 24/11/09 for continuation of cross examination.
Before the next adjourned date, His Lordship, Hon. Justice G. O. Imadegbelo (Mrs.) was transferred to Abudu Judicial Division.
Subsequently, the case was transferred to Abudu Judicial Division to enable his Lordship conclude the trial, and all parties including Appellant herein were duly notified via a hearing notice. The Appellant filed a motion on notice praying the trial court to re-transfer the suit back to Sabongida Ora High Court to be commenced de novo.
The motion was supported by a 19 paragraph affidavit. I will set out the portions germain to this appeal which are paragraph 8 – 17 at pages 11 – 12 of the record:
8. That the 1st Defendant does not reside within Abudu Judicial Division but within Sabongida Ora Judicial Division.
9. That I do not carry on business in Abudu Judicial Division but in Sabongida – Ora Judicial Division.
10. That the cause of action did not arise in Abudu Judicial Division.
11. That I did not apply for the transfer of the suit and none of the other parties, Plaintiff, 2nd and 3rd Defendant applied for transfer of the suit to Abudu Judicial Division.
12. That I am not aware that the court transferred the suit to Abudu Judicial Division and if the court did so, it is a transfer that has a most inconvenient arrangement for the trial of such suit.
13. That with incessant record of crimes and kidnappings in Edo State, I am not prepared to risk my life to leave Uzebba very early in the morning for the purpose of keeping time to Court at Abudu.
14. That the Plaintiff and 1st Defendant are the stars in the suit and both of them reside within Sabongida – Ora Judicial Division.
15. That my life is at stake if the suit is transferred to be tried at Abudu which is over 132 kilometers from the place where the cause of action arose.
16. That cause of action arose in Uzebba and not Abudu.
17. That the trial has not reached defence stage.
The 1st Respondent as Plaintiff opposed the application vehemently and filed a counter-affidavit. The relevant portions are paragraphs 7-15 on pages 13-14 of the record stated below:
7. That in reply to paragraph 11, I aver that the transfer of the Suit to Abudu Judicial Division has been effected.
8. That the transfer is to enable Honourable Justice G. O. Imadegbelo continue and determine the matter which is already at an advanced stage.
9. That I am the last witness who is already being cross examined by Defendant’s Counsel.
10. That it took about five years before hearing commenced in this matter on 22/5/2002.
11. That this application is a ploy to continuation of hearing in this matter so that hearing will start de novo.
12. That this application is meant to delay the determination of this matter.
13. That the 1st Defendant is benefiting from the delay in determining the matter.
14. That there is no threat to the life of the 1st Defendant/Applicant in Abudu.
15. That the 1st Defendant/Applicant will not suffer any inconvenience if the suit is determined in Abudu.
After hearing counsel for the parties in a considered ruling the learned trial Judge refused the application to transfer the case back to Sabongida Ora. It is against that refusal that the Appellants have appealed to this court.
The 2nd & 3rd Respondents were the 2nd & 3rd Defendants at the trial court. They were duly served with all processes including hearing notices for the hearing of this appeal. They did not respond to these notices. It is apparent that they are unwilling or unable to oppose this appeal.
The Appellant’s brief was filed on 25/6/10 while the 1st Respondent’s brief was filed on 17/9/10 to which the Appellant filed a reply on 6/10/10. The 1st Respondent filed a notice of preliminary objection on 13/9/10 arguments in respect of which are contained in the brief. I will deal with the notice of preliminary objection first. The 1st Respondent’s raised an objection to the appeal in the following terms:
1) The appeal is incompetent
2) The decision of the learned trial Judge refusing the application for transfer of the case from one Judicial Division to another is not appealable.
The argument of Mr. L. O. Egboyi is that Or. 10 of the Rules of Bendel State 1988 applicable in Edo State has been interpreted in DELSU v. DEMAKI (2005) All FWLR Pt. 290 Pg. 1585 to the effect that a case can be transferred by a Judge from one Judicial Division to another. He also cited ONOGIFERE v. ITIETIE (1972) All NLR 584 to support the position that by the High Court Law of Bendel State applicable in Edo State particularly sections 35-38 the decision of the High Court is not appealable.
In reply learned Appellant’s Counsel Chief Theo Osisi argued that S.35 – 38, and 39 of the High Court Law of Bendel State applicable in Edo State contravenes S. 241(b) of the 1999 Constitution which provides for the right of appeal where the ground of appeal involves questions of law alone. He urged us to strike down that law being inconsistent with the 1999 Constitution.
I have considered the above arguments and I am of the view that indeed by S. 241(b) of the 1999 Constitution, this decision of the trial high court refusing to transfer the case back to the former judicial division where it was being tried is appealable. I would like to draw a distinction here between administrative decisions which are not appealable and judicial decisions arrived at after hearing the parties which are indeed appealable. We have to remember that ONOGIFERE v. ITIETTE and the rules it interpreted were made before the 1999 Constitution. In DIKE v. DR. OSITA ADUBA (2000) 3 NWLR Pt. 647 Pg. 1 the Supreme Court made a clear distinction between an administrative direction by the Chief Judge of the State or the administrative judge of a judicial division to transfer a case from one court to another as against a formal application on which a trial court has been called to take a decision one way or another. In the instant case, there was a formal application supported by an affidavit. The application was opposed vigorously by a counter affidavit. The learned trial judge gave a ruling on the issue which comes within the definition of a “decision” under S.241 of the 1999 Constitution and which is thus appealable. In the circumstances, the decision of the trial court made in pursuance of the judicial duties of a Judge is appealable. The preliminary objection is therefore misconceived and is hereby dismissed.
On the substantive appeal, Learned Appellant’s Counsel argued that the learned trial Judge did not refer in the ruling that a consideration was made of the reasons proffered by the applicant in his affidavit in support of the application nor were the processes of the 1st Respondent considered. The complaint was also raised that the trial court did not at all consider Or. 10 R(4), (5) & (6) of the Bendel State High Court Rules applicable in Edo State before arriving at the decision to refuse the application.
Learned 1st Respondent’s Counsel argued that the trial judge had rightly considered the history of the case to arrive at what was just in the circumstances and refused to send back for trial de novo a case that had been pending for Eight (8) years. He argued that all judicial precedents had agreed that there is only one High Court in a State and Divisions of State High Court into judicial divisions are for administrative convenience only. He cited DELSU v. DAMAKI Supra and UKPERI v. OKORO (1983) 2 SCNLR 380.
I have to agree with learned Counsel for the 1st Respondent that a thorough reading of the ruling of the learned trial Judge shows an understanding of the antecedents of this case which had been in court for eight years. From the records, three witnesses had been called by the Plaintiff who had finished his evidence in chief before the presiding judge was transferred from Sabongida – Ora to Abudu Judicial Division. In DELSU v. DAMAKI Supra this court held on the issue of cases being transferred from Judicial Divisions that by virtue of S.270(1) of the 1999 Constitution there is only one High Court in a State and the divisions were created for administrative convenience and to bring justice nearer to the people.
In UKPERI v. OKORO (1983) 2 SCNLR 280 at 388 the Supreme Court held as follows:
“It is my well considered view that the High Court of a state is established by the Constitution. Section 234 of the Constitution established a High Court for each state of the Federation.
There is therefore only one and not more than one High Court for each state of the Federation”
This appeal is largely against the exercise of the discretion of the learned trial Judge. The Appellant made vague attempts to call into question the integrity of the trial judge and to say that the court conjured up the directive of the Chief Judge to the effect that judges should carry cases which had reached advanced stage to their new station. I must say it does counsel no credit to seek to impugn the integrity of a judge. The actions of the trial judge are amply supported by the S.35(1) of the Bendel State High Court Law applicable to Edo. The section provides as follows:
35(1) A judge may at any time or at any stage of the proceedings before final judgments and either with or without application from any of the parties thereto, transfer any cause or matter before him to a Magistrate’s Court having jurisdiction to hear such cause or matter or to a judge in the same or any other Judicial Division.
Suffice it to say that on the facts before the trial court which stated that it had “read the submissions of counsel to the 1st Defendant and the Plaintiff”, I cannot see how the exercise of the court’s discretion can be faulted. The law in my view recognizes the fact that the case can be tried in any judicial division within the state convenient for the trial court. The antecedents of this case were well considered before the trial court exercised its discretion not to transfer so that the case would start de novo.
It is my humble view that on the facts and on the law this appeal is completely without merit and must be dismissed. It is hereby dismissed. I award N50,000 costs to the 1st Respondent against the Appellant.
TUNDE OYEBANJI AWOTOYE, J.C.A.: I read the draft of the Judgment just delivered by my learned brother HELEN MORONKEJI OGUNWUMIJU J.C.A. I entirely agree with it. I have a little contribution to make however.
The 1999 Constitution as amended clearly defines decisions under S.318(1) as follows:
“means, in relation to a court any determination of that court and includes judgment, decree, order, conviction, sentence or recommendation.”
Sections 35 and 39 of the High Court Law of former Bendel State (applicable to Edo State) reads:
“(35) (1) A judge may at any time or at any stage of the proceedings before final judgment, and either with or without application from any of the parties thereto, transfer any cause or matter before him to a magistrate’s court having jurisdiction to hear such cause or matter or to a judge in the same or any other Judicial Division.
(2) The Chief Justice may at any time or at any stage of the proceedings before judgment similarly transfer any cause or matter before a judge to any other judge.
(39) Any order made under sections 35 to 38 inclusive shall not be subject to appeal.
It is clear that the power of transfer “shall be exercised by means of an order.” See S.36(1) of the Law. That order in my view is included in the ambit of the word decision as used in the 1999 Constitution, when made after hearing the parties in exercise of the Judge’s judicial discretion as opposed to when made administratively.
By virtue of S.241 and S.242 of the 1999 Constitution an order of the Chief Judge or Judge made pursuant to the provision of S.35 and S.36(1) of the Bendel State High Court Law is appealable as of right where the ground of appeal involves questions of law alone see S.241(1b) or is in respect of the provision of Chapter IV of the Constitution. See S.241(1) (d) or it affects the liberty of a person or the custody of an infant. See S.242(1) (f) (i) of the 1999 Constitution and in every other case with leave of court. See S.242 (i) of the 1999 Constitution, after hearing parties as in this appeal.
The provision of S.39 of the High Court Law of Bendel State in the con of this appeal conflicts with the above provision of the Constitution and consequently to the extent of the inconsistency is void. See S.4(5) of the 1999 Constitution. I therefore also dismiss the preliminary objection as it is misconceived.
On the substantive appeal as aforestated, I agree that the ruling of the learned trial Judge is unassailable. I also hold that this appeal lacks merit. I accordingly dismiss it with N50,000 costs in favour of the 1st Respondent.
JAMES SHEHU ABIRIYI, J.C.A.: I had the privilege of reading before now the draft of the lead judgment of my learned brother, HELEN MORONKEJI OGUNWUMIJU, JCA, just delivered.
I agree entirely with the reasonings therein and conclusion in the lead judgment that the appeal be dismissed.
I too dismiss the appeal. I also abide by the consequential orders made in the lead judgment.
Appearances
Chief T. O. Osisi Esq.For Appellant
AND
L. O. Egboyi Esq.For Respondent
