In The Court of Appeal of Nigeria

On Thursday, the 13th day of June, 2002




JAMES OGENYI OGEBE   Justice of The Court of Appeal of Nigeria

SYLVANUS ADIEWERE NSOFOR   Justice of The Court of Appeal of Nigeria

ABOYI JOHN IKONGBEH   Justice of The Court of Appeal of Nigeria



    (For themselves for and on behalf
    of Emedike Community, Ogbia L.G.A.)
    8. CHIEF J.B.S. INIE
    (For themselves and for and on behalf of
    Okigbene/Fieregbene Community in
    Southern Ijaw L.G.A.) Appellant(s)


    for and on behalf of Epebu Community, Ogbin L.G.A.)


ABOYI JOHN IKONGBEH, J.C.A. (Delivering the Leading Judgment): The appellants before us were the applicants before the Bayelsa State High Court. They had applied ex parte to the Court for-
“1. For an order to apply for leave for an order of certiorari out of time.
2. To deem as properly filed the application for leave herein sought.
3. For an order of certiorari to remove into this Honourable Court for the purpose of being quashed the decision, judgment and/or order(s) of the Chairman and Members of the Customary Court, Oloibiri given on Wednesday the 30th day of November, 1998 in Suit. No. CCO/8/99 (Chief Daniel Olotu & 10 Ors., Chief Edward Jim Ogbolo & 5 Ors. which relief is not put in paragraph 2(1) of the statement accompanying application for leave for an order of certiorari.”

They based their application on the grounds.

“1. The existence of a prohibitive order on the Customary Court from further trying, hearing, proceeding with or in any way determining or causing to be determined in suit No. CAO/8/98 which was then pending before the said Court at the application of the present applicants in Suit No. YHC/M.8/98.

2. That the present applicants who were defendants in the Customary Court Oloibiri were not served hearing notices of the resumption of hearing of the said case in the Customary Court, Oloibiri and therefore were robbed of the opportunity of representing themselves in the said Court at the trial.”

They were the defendants before the Customary Court, Olobiri. The respondents had sued them in that Court in March, 1998 claiming land. Soon after the institution of the action in that Court the defendants therein, i.e., the respondent herein, moved the High Court in Oporoma ex parte on 22/04/98 and obtained an order staying proceedings in the Customary Court pending the hearing of the motion on notice for that purpose. That motion was eventually struck out on 07/10/98 for want of diligent prosecution. Thereafter the case in the Customary Court proceeded and judgment was delivered against the appellants/appellants. This was on 20/11/98. The appellants filed application the subject of his appeal on 01/12/98, over one year after the judgment of the Customary Court was given.
In a short on-the-bench ruling the learned trial Chief Judge, K.D. Ungbuku, C.J. refused the application. He disposed of the grounds on which the application was based thus at p.22 of the record:

The plaintiffs/respondents filed their action Suit No. CCO/8/98 against the applicants in the Customary Court in March, 1998. It is a land matter for which the Customary Court has jurisdiction.

The applicants rushed to the High Court and filed a motion YHC/M.8/98 and had an interim injunction, restraining the Customary Court from proceeding with the said case until the determination of the substantive motion. That interim order was made or 22/4/98.
The substantive motion of the applicants was struck out by the High Court on 7/10/98 for non-active prosecution by the applicants.

In law the interim order of the Court was automatically discouraged on the striking out of the substantive motion. The Customary Court from thence has jurisdiction to continue with the case. The judgment complained of was delivered on 30/11/98. The applicants did nothing until after one year that they filed the instant proceedings on 1/12/99. Both parties are from same village Oloibiri and he Customary Court itself is at Oloibiri.
It is not enough to say only that they, the applicants became aware of the said judgment on 20/11/98. There is no enough explanation to convince this Court for the inordinate delay. It is too late for the applicants to wake up from their slumber to awake the process of Court. Justice is a two way sword. It is for the applicants as well as the respondents. Equity does not aid the indolent.”
Aggrieved, the appellants have come before us. O.C.J. Okocha, S.A.N., formulated only one issue for determination in the appellants’ brief. The issue is:

“Whether the learned trial judge was right when he refused to grant that appellants leave to apply for an Order of Certiorari to remove to the High Court for the purpose of being quashed the decision judgment and orders of the Customary Court. Oloibiri given on 30th November, 1998 in Suit No. CCO/8/98?”

Chief K. Babalola agreed that is the only issue involved in this appeal.

The only point really made by the learned Senior Advocate of Nigeria on behalf of the appellant was that the decision of the learned Chief Judge was premature since the parties had not gone into the merits of the appellants’ application. According to the learned senior counsel, at the stage when the ex parte application was made,

“all that was required was for the learned trial Judge, upon hearing the motion ex parte, to exercise his discretion to grant leave as sought by the appellants, knowing full well that the stage would come when the respondents, upon being served with the substantive application for the order of certiorari would have ample opportunity to deny and controvert the facts upon which the appellants were proceeding, that is if they could effectively deny and controvert those facts.”

Learned senior counsel appears to me to be suggesting that once an ex parte application is made, supported with an affidavit, for leave to apply for certiorari it becomes a matter of course for the trial Judge to grant it. If this is what he is suggesting, then I must disagree with him. It is always a matter for the judge’s discretion whether or not to grant such leave. If the facts disclosed by the applicant do not warrant the grant of leave and the Judge grants it, then he would not have exercised his discretion judicially.
The question here boils down to whether or not the facts disclosed by the appellants warranted a grant to them of leave to apply for certiorari. As was seen before the main ground on which the appellants sought to have their application for certiorari, if granted leave to file it, was that the Customary Court lacked jurisdiction to proceed with the case before it. This, according to the applicants, was because there was a subsisting Court order forbidding it to do so, and because the Court did not notify the appellants of the hearing.

In paragraph 5 of the affidavit supporting the application for leave the deponent revealed that the motion on notice pending the determination of which the order of stay of further proceedings was made was struck out on 07/10/98 by the same Court. It followed that the order of stay automatically lapsed on that day. It was, therefore, a misrepresentation of facts for the deponent to the supporting affidavit to assert, that there was in existence at the time the Customary Court resumed the proceedings a prohibiting order in existence.

It is their contention that in the circumstances the Customary Court should still have held its hands because soon after the striking out of the motion for stay another motion was filed on behalf of the appellants to re-list the one struck out. It is true that when an application is pending before a higher court, the result of which is likely to affect proceedings in a lower court, it is better for the latter court to await the outcome of the application. The lower court must, however, be aware of the pendency of the application in the higher court, otherwise it cannot be expected to await its outcome. In the present case there is no evidence that the attention of the Customary Court was ever drawn to the pendency of the application for re-listing.
On the showing of the applicant themselves there can be no basis for the contention that the Customary Court lacked jurisdiction to proceed with the case, as it did, on account of there being in existence an order prohibiting it from doing so. The learned trial Chief Judge was therefore, right in so concluding and in holding that the Customary Court, from the moment the motion for stay of proceedings was struck out, regained its jurisdiction to proceeds with the hearing.
Another complaint on behalf of the appellants relates to the ruling by the learned Chief Judge that the had been undue delay in bringing the application giving rise to this appeal. This learned senior advocate pointed to paragraph 6 of the supporting affidavit in which it was averred that the tardiness on the part of the appellants was due to the communal strife that ensued soon after they obtained the prohibiting order against the Customary Court. Evidently this excuse did not impress the learned Chief Judge. This, in his view, did not constitute sufficient explanation for the over one year delay. I am completely with him here. The excuse does not impress me. It was convenient for the deponent to make the bland statement there was a civil disturbance. He did not, however, think it necessary to give details as to when exactly this disturbance erupted and how long it lasted. Evidently it was no intense enough to prevent the appellants from monitoring the state of the prohibiting order placed on the Customary Court. it did not prevent hem from travelling across counter from Oloibiri and sneaking into the registry of the High Court in Oporoma to file the motion for re-listing the one struck out that very next day after it was struck out. It was however, intense enough to prevent them from going to the registry of the Customary Court to pursue their defence. How so very convenient.
One point that paragraph 5 oft eh affidavit revealed is that the appellants because aware that their restraining order against the Customary Court lapsed immediately the occurrence took place. The order striking out their motion on notice for stay of proceedings was made on 07/10/98. They filed their motion the next day, 08/10/98, to have it re-listed. They were evidently aware that without the prohibiting order nothing would stop the Customary Court from proceeding with hearing.
It is easy from all this to agree with the Customary Court that the appellants, having obtained the prohibiting order were doing everything to keep the case from being disposed of on merit. They themselves exhibited the record of proceeding before the Customary Court. see pp.17 – 20 of the record of appeal, particularly p.19, where the Customary Court stated that some of the appellants were served while others evaded service.
“After hearing from the plaintiffs and their witnesses in the absent of the 1st set of defendants and the 2nd set of defendants, more especially the 1st set of defendants as from the genesis of the mater 18th day of March, 1998 after duly served by a bailiff of the Court deliberately refused to appear in Court until an order of state of proceedings by YHC/M.8/98. In conformity with absenteeism in Court also cause the struck out of their motion in Suit No.YHC/M.8/98. Hearing notice was issued out on the 15th day of October, 1998 and were served on some of the 1st set of defendants at Okodi and Otuabulu and the 2nd set of defendants at Yenagoa with their normal attitude from onward set in this Court on the remarks from the endorsement and return evaded service on them. From the above without prejudice and one having no personal interest over the said matter adjourned the matter from 26th day of October, 1998 to 4th November, 1998 the Court having no other option than to hear from the plaintiffs and his witnesses and to pass judgment.”
All the materials that cast serious doubt on the complaints of the appellants in their application before the lower Court were put before the Court by the appellant themselves. In my view, therefore, it would have amounted to an improper exercise of discretion had the lower Court allowed the appellants to proceed beyond the point they had reached. With all due respect to the learned senior counsel, for the appellants, the question of fair hearing has not arisen in the proceedings giving rise to this appeal. What has fallen for consideration is whether or not the appellants have sufficiently explained their tardiness in bringing their application and whether or not they have shown that the matters ought to proceed any further. The learned trial Chief Judge, in my view, rightly came to the conclusion that they have failed on both scores. No amount of ingenuity on the part of counsel can save them.

I see no merit at all in this appeal. Accordingly I dismiss it. The appellants shall pay costs of N5,000.00 to the respondents.

JAMES OGENYI OGEBE, J.C.A: I read in advance the lead judgment of my learned brother Ikongbeh, JCA just delivered and I agree with his reasoning and conclusion in dismissing the appeal.
I too dismiss the appeal for lack of merit and affirm the ruling of the lower court. I endorse the order of costs made in the lead judgment.

SYLVANUS ADIEWERE NSORFOR, J.C.A: I agree. I, too, do dismiss the appeal with costs of N5,000.00 against the appellants in favour of the respondents.



N.O. Dinwoke, Esq.,For Appellant



S.O. Opara, Esq;For Respondent


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