CHIEF KENNETH C. ARIOLU V. GODWILL ARIOLU ORS
(2010)LCN/3685(CA)
In The Court of Appeal of Nigeria
On Thursday, the 8th day of April, 2010
CA/PH/18/2005
RATIO
PROCEDURE: ESSENCE OF RULES OF COURT
In the case of PROGRESS BANK PLC VS CONTACT POINT HOLDINGS LTD. (supra) this court held thus:
“Rules of Court are made for the convenience and orderly hearing of cases in court. They are made to help the cause of justice and not to defeat justice. The rules are therefore aids to the court and not master of the court. For courts to Read rules in the absolute without recourse to the justice of the case… Will be making the courts slavish not the raison deter of rules of court.”
In the case of ATTORNEY GENERAL OF BENDEL STATE VS. ATTORNEY GENERAL OF THE FEDERATION (supra) the apex court Per Nnamani JSC held that:
“If the plaintiff is entitled to be heard by this court, how he comes to be heard may be immaterial. This court has in many recent decisions, while affirming the importance of observance of rules of court, stated that it is more concerned with doing substantial justice between the Parties”‘
Again, in the case of ORU ANAN LOCAL GOVERNMENT V. held thus:
“No court of law should be shackled by procedure; case is not made for procedure rather it is the other way round. If the procedure employed has clearly brought out the issues the parties contest, it will not matter that the procedure is not the correct one. Getting to the destination is what is important. It does not matter the means.” PER TIJJANI ABDULLAHI J. C. A.
FAIR HEARING: WHEN A HEARING WILL BE FAIR
In the case of NDUKAUBA V. KOLOMO (2005) ALL FWLR (Pt 248) p.1602 at page 1608, the Supreme Court held thus:
A hearing can only be fair when all parties in the dispute are given a hearing or an opportunity of a hearing. If one of the parties refused a hearing, or not given an opportunity to be heard, the hearing cannot qualify as a fair hearing. PER TIJJANI ABDULLAHI J. C. A.
ORDER: WHEN WILL AN ORDER OF CERTIORARI BE GIVEN
It is also trite that where an inferior court acted in excess of its jurisdiction as in the case in hand, the party aggrieved is at liberty to seek for certiorari, even though there was a right of appeal. This court in LAWAL VS SENIOR MAGISTRATE QUADRI (2004) 6 NWLR page 1 at page 5 held as followsHowever, where the lower court or tribunal jurisdiction adjudicated in excess of jurisdiction, an aggrieved Party will successfully seek an order of CERTIORARI, even though he has a right of appeal…” PER TIJJANI ABDULLAHI J. C. A.
JUSTICES
HON. JUSICE S. GALADIMA (OFR) Justice of The Court of Appeal of Nigeria
HON. JUSTICE T. ABDULLAHI Justice of The Court of Appeal of Nigeria
HON. JUSTICE E. EKO. Justice of The Court of Appeal of Nigeria
Between
CHIEF KENNETH C. ARIOLU Appellant(s)
AND
1. GODWILL ARIOLU
2. EVELYN ARIOL1. GODWILL ARIOLU
2. EVELYN ARIOLU
3. T.M. ELENWO (senior Magistrate, obio Magisterial District Rumuogba Port Harcourt) Respondent(s)
TIJJANI ABDULLAHI J. C. A. (Delivering the leading judgment): This is an appeal against the ruling of the High court of Justice sitting at Port Harcourt Judicial division, Coram Alex W. Jumbo delivered on the 27th of September, 2OO4, wherein the order to quash the decision of the Obio Magistrate court was granted. The learned trial judge held inter alia thus:
“In view of the foregoing, this application succeeds and I order as follows:
1. The proceedings, rulings and or orders of the Obio Magistrate Court, Rumuogba, Port Harcourt, presided over and delivered by senior Magistrate J.M.J. Elenwo Esq. on 3rd November, 2003 in suit No. MCR/2R/2003 Chief Kenneth C. Ariolu v. Godwill Ariolu and MCR/3R/2003 Chief Kenneth C. Ariolu Vs Evelyn Aginwa are hereby qashed.
2. The 1st Respondent is hereby restrained either by himself, agents or privies from harassing or preventing the applicants from peacefully occupying their accommodation at No.1 Ariolu Drive, Oginigba, in Obio/Akpor Local Government Area Rivers State.
3…
4. That is the ruling of this Court”.
Dissatisfied with the ruling stated supra, the Appellant who was the Respondent in, that court, approached this court and filed a notice of appeal which carries four grounds on 28th day of September, 2004, from which they distilled four issues for determination in his appellant’s brief of argument dated 3rd of February, 2005, and filed the same date. The issues for determination are as follows:
“1. Whether the Learned Trial Judge was right to have decided that the filing of originating summons before leave was obtained and the use of originating summons for judicial review does not nullify the proceedings for certiorari (This issue is distilled from grounds 2 and 3 of the grounds of appeal).
2. Whether the learned Trial judge was right to have held that there was breach of fundamental right to fair hearing with respect to the adoption of customary Arbitration report as judgment of the Magistrate Court (This issue is distilled from ground 4 of the grounds of Appeal).
3. Whether the application for certiorari by the 1st set of Respondent does not rob the Learned Trial Judge of jurisdiction especially when there exist a Notice of Appeal and motion for stay of execution, which constitutes an abuse of Court process. (This, issue is distilled from grounds 3 of the grounds of Appeal).
4. Whether the Learned Trial Judge can in Law restrain an already completed act (This issue is distilled from grounds of the Grounds of Appeal).
The 1st set of Respondents in their brief dated 22nd day of March, 2005 and filed on the 30th March, 2005 did not formulate any issue for determination but adopted the issues formulated by the Appellant as theirs, The 2nd set of Respondent did not file any brief in this appeal. The 2nd set of Respondent, needless to say is J.M.J Elenwo, senior Magistrate, Obio Magisterial District whose decision was quashed by the lower court.
On the 12th day of January, 2010 when the appeal came before us for hearing, learned counsel adopted their briefs of argument. Learned counsel for the Appellant Dr. Amuda Kanike urged us to allow the appeal whilst B.F. Omidina urged us to dismiss the appeal as lacking in merit and affirm the ruling of the trial Court.
Arguing issue No.1 on whether the trial judge was right to have decided that the filing of originating summons before leave was obtained and the use of originating summons for judicial review does not nullify the proceedings for certiorari Learned counsel for the Appellant submitted that the trial Judge was not right to have decided that the filing of originating summons before leave was obtained and the use of originating summons for judicial review did not nullify the proceedings for certiorari.
Learned counsel further argued that even the learned trial Judge agreed that the application for certiorari was filed before leave was granted contrary to order 43 Rule 3(1) of the Rules of the High Court and that the application ought not to have been by way of originating summons but held that the issue of non-compliance is a mere irregularity of which cannot nullify the proceedings.
It is the submission of the learned counsel that the case of ATTORNEY GENERAL OF BENDEL STATE VS. ATTORNEY GENERAL OF THE FEDERATION (1982) 3 NCLR page 1 at 16 relied upon by the learned trial judge is inapplicable to the case in hand in that in the said case, it was held that “Particularly where such objections are curable.” Learned counsel contended that the objection in this case is incurable because leave must be obtained first before an application for certiorari could be filed” It is also his contention that originating summons is not what to be used except during vacation as stated in order 43 Rule (1) of the High Court (Civil Procedure) Rules, 1987.
It is the submission of the learned counsel that the apex court has said in a number of cases that the rules of court are not made for fun and that it is essential that they must be obeyed by parties in all case.
Learned counsel urged us to resolve this issue in favour of the Appellant.
On the other hand, learned counsel for the 1st set of Respondents submitted that, the learned trial judge was right in his ruling and that the arguments preferred by the learned counsel for the appellant can be faulted on the grounds which were canvassed at the trial court.
Firstly, learned counsel argued that the appellant entered appearance at the High Court in defence of the suit unconditionally after receiving the court processes and he took still more steps. He filed his Counter Affidavit where no objection on procedure adopted was raised till during his reply stage after the first set of Respondents’ counsel address in which he actively participated.
Learned counsel contended that the Appellant received the court processes with the leave of court attached. He was not over reached or in any way prejudiced. The Appellant, the learned counsel went on, will want this court to sacrifice substantial justice on the alter of technicalities.
Again, learned counsel contended that although there had been few cases in favour of adherence to rules, the preponderance of recent Supreme Court’s and Court of Appeal’s decisions have favoured Supremacy of substantial justice over technicalities based on rules of Procedure. He relied on the cases of PROGRESS BANK VS. CONTACT POINT HOLDINGS LTD, ATTORNEY GENIERAL OF BENDEL STATE VS. ATTORNEY GENEML OF THE FEDERATION (1982) 3 NCLR Page 16, and ORUK ANAN LOCAL GOVERNMENT VS IKPA (2005) ALL FWLR (PT 249) P. 1910, UTC (NIG) LTD VS. POMOTEL (2001) FWLR (Pt 129) p. 1557 particularly at page 1575 ratio 3, FAGUNWA VS ADIBI (2004) ALL FWLR (PT. 226) P. 340 at p. 344, SHANU VS AFRIBANK (NIG.) PLC (2003) FWLR (PT. 136) P. 823 and OBISI v. CHIEF OF NAVAL STAFF (2004) ALL FWLR (PT. 215) P. 193 at P. 200.
Let me begin my consideration of this issue by reproducing Order 2 Rule 2(1) of Rivers State High Court (Civil Procedure) Rules 1987 which is not only relevant but apt in the appeal under consideration. It reads thus.
“An application to set aside for irregularity any proceeding, any step taken in any proceeding or any document, judgment or order therein shall not be allowed unless it is made within a reasonable time and before the party applying has taken and fresh step after becoming aware of the irregularity.” (underlining supplied for emphasis).
The provision of the order above stated are very clear and unambiguous and require no aid for their interpretation, An applicant who desires any proceedings, judgment or order to be set aside must not take any steps after becoming aware of the irregularity or else his Application will fail.
In the light of the foregoing, the question that must be asked and answered is whether the Applicant/Appellant had taken any fresh step after becoming aware of the irregularity complained against.
Lest I forget, the Appellants entered appearance at the High Court in defence of the suit unconditional after the court processes had been served on him. This singular act of the Appellant would legally be viewed as having waived his right of raising any objection as regards to the procedure adopted by the 1st set of Respondents. Having made this point, let me quickly say that the Appellants took further steps in the proceedings by filing their counter affidavit.
In the case of OJO vs ANONGO (2004) ALL FWLR (pt, 218) P.34 AT 938 this court per Oguntade (JCA) (as he then was) pointedly defined “taking a step,, thus:
“Allowing the case to proceed to hearing or doing such acts as would convey to the other party that the complaining party is not raising objection, or where he has raised one, he is not pursuing it.”
Again, in the case of OKWUEZE vs. EJIOFOR (2001) FWLR (PT. 45) P. 1277 at p. 1281, this court held that filing a counter affidavit constituted “taking a fresh step. The learned Author T. Akinola Aguda in his book ” practice and procedure, 2nd Edition, page 14 paragraphs 3:10 and 3:11 states that “Merely asking for:” time to file his pleadings constitutes “taking a step in the proceedings.” The learned Author cited Nigeria produce MARKETING COMPANY LTD VS. COMPANIES NOGA D’ IMPORTATION (L971) N.M.L.R. 223 as authority for his opinion.
Now, in the light of the avalanche of authorities on what constitutes “taking a fresh step” as adumbrated above, the question posed a while ago must be answered in the affirmative. That is; to say that the Appellant had taken fresh steps after becoming aware of the irregularity. I am therefore of the humble view that this being the case, they are cought by the provisions of order 2 Rule 2(1) of the Rivers State High Court (Civil Procedure) Rules, 1987. They cannot therefore be allowed to set aside the proceedings complained against for the reasons stated supra.
In the case of PROGRESS BANK PLC VS CONTACT POINT HOLDINGS LTD. (supra) this court held thus:
“Rules of Court are made for the convenience and orderly hearing of cases in court. They are made to help the cause of justice and not to defeat justice. The rules are therefore aids to the court and not master of the court. For courts to Read rules in the absolute without recourse to the justice of the case… Will be making the courts slavish not the raison deter of rules of court.”
In the case of ATTORNEY GENERAL OF BENDEL STATE VS. ATTORNEY GENERAL OF THE FEDERATION (supra) the apex court Per Nnamani JSC held that:
“If the plaintiff is entitled to be heard by this court, how he comes to be heard may be immaterial. This court has in many recent decisions, while affirming the importance of observance of rules of court, stated that it is more concerned with doing substantial justice between the Parties”‘
Again, in the case of ORU ANAN LOCAL GOVERNMENT V. held thus:
“No court of law should be shackled by procedure; case is not made for procedure rather it is the other way round. If the procedure employed has clearly brought out the issues the parties contest, it will not matter that the procedure is not the correct one. Getting to the destination is what is important. It does not matter the means.”
In the right of the avalanche of authorities as adumbrated above, I am the considered view that issue No’1 must be and it is hereby resolved in favour of the 1st set of Respondents and against the Appellant.
on issue No. 2 which poses the question as to whether the learned trial judge was right to have herd that there was breach of fundamental right of the 1st set of Respondents to fair hearing with respect to the adoption of Customary Arbitration report as Judgment of the Magistrate court, the learned counsel for the Appellant submitted that it is neither correct nor true that the 1st set of Respondents and their counsel were not heard before the magistrate adopted the report of the peace committee.
Learned counsel referred to page 79 lines 24 31 of the judgment of the learned magistrate wherein he held as follows:
I have carefully considered and examined the Report of the peace committee that obtained leave of this Honourable Court to settle this suit MCR/2R/2003 out of Court I have also considered and examined the objections to the said report filed by B.F. Omidina Learned counsel for the Defendant on behalf of the Defendant. It is clear to me that the decisions and conclusions of the peace committee are aimed at restoring peace.”
Learned counsel contended that based on the re-produced portion of the judgment of the Magistrate, fair hearing was given to the 1st set of Respondents on their objection because earlier in the ruling, their objection was heard wherein the court recorded as follows:
“Adjourned to 03-11-03 for consideration of the panels verdict and objections thereto and ruling accordingly.”
It is the submission of the learned counsel for the Appellant that from what have been stated above, it was wrong for the learned trial judge to have held that the 1st set of Respondents and their counsel were not given fair hearing with respect to their objection to the peace committee report.
Again, learned counsel further submitted that in law, the 1st set of Respondents having participated in the Native Arbitration Culminating in the peace committee report and having accepted the verdict up to when the verdict was delivered cannot turn round now to resile away from the same because the committee report is unfavourable to them. He relied on the cases of KWAS VS LABI (1950) 13 WACA page 76; OHINE v. OBODO (1958) SCNLR page – 298 and NJOKU V. EKEOCH A (1972) ECSLR page 199 to buttress his submission on this point.
Learned counsel urged us to resolve this issue in their favour.
For his part, learned counsel for the 1st set of Respondents submitted that the learned trial judge was right in his ruling to the effect that his clients were denied fair hearing by the planned magistrate.
It is the submission of the learned counsel that the learned Magistrate and the learned counsel for the Appellant misled themselves by referrings to an out of court settlement for which leave was granted as; “customary Arbitration.” He referred the court to the case of Ras Pal Gazi Construction Co. Ltd. Vs. FCDA (2001) FWLR (pt. 1sB) p. 1013.
Learned counsel contended that by disallowing the 1st set of Respondents from correcting or contradicting the statement or allegation made by the committee’s chairman, or allowing their counsel to address him on the matter, and equally affording the other party an opportunity to reply, the learned senior Magistrate did not act judicially, It is his further contention that his subsequent adoption wholesale of the committee’s decision as the court’s ruling amounted to a denial of fair hearing. He relied on the case of MENAKAYA VS. MENAKAYA (2001) FWLR (pt. 76) p.742 at p.756,
Learned counsel submitted that assuming without conceding that the matter was Arbitration, a party can reject an award by an Arbitration panel. He referred us to the case of Ras Pal Gazi construction co. Ltd; Vs FCDA (supra). we were urged to resolve this issue on favour of the 1st set of Respondent.
Now, the first port of call on this issue is whether the learned senior magistrate and the counsel for the Appellants mislead themselves by referring an out of court settlement as customary Arbitration as canvassed by the learned counsel for the 1st set of Respondents. To take a position on this aspect of the case, recourse had to be made to the case of Ras Pal Gazi (supra) a case cited and relied by the learned counsel for the 1st set of Respondents.
In that case, Ras Pal Gazi Construction Coy. Ltd Vs FCDA (supra), the apex court at page 1018 held the view that arbitration proceedings are not the same thing as negotiation for settlement out of court. As can be gleaned from the records, the matter was already in the magistrate court before leave was granted Chief Stephen Anyaugu, representing the settlement committee to settle the matter out of court.
Again, when the committee’s report was presented to the magistrate court, the learned senior magistrate was informed that the 1st set of Respondents had rejected the report and written to the committee, which the committee chairman, chief Anyaugu confirmed to have received.
In the case of MENAKAYA VS MENAKAYA (supra) page 742 at page 756, the Supreme Court held thus:
“where a party had made moves to settle a dispute already subject of litigation, but could not agree on terms of settlement; the trial judge seised of the case cannot proceed to judgment in such a matter before him without hearing and in the absence of the parties arriving at terms of settlement. A judge so seised of the matter is enjoined to proceed to trial by calling on the parties to adduce evidence in support of their respective cases.”
(Underlining supplied by me for emphasis)
I am of the humble view that the report having been rejected by the 1st set of Respondents as can be gleaned from the records of the learned magistrate, the latter should have proceeded with the hearing of case by allowing the parties to adduce evidence in respect of the position taken by each. I am of the further view that the ruling of the learned magistrate seriously violated the sacred tenants of “audi alteram partem”‘
In the case of NDUKAUBA V. KOLOMO (2005) ALL FWLR (Pt 248) p.1602 at page 1608, the Supreme Court held thus:
A hearing can only be fair when all parties in the dispute are given a hearing or an opportunity of a hearing. If one of the parties refused a hearing, or not given an opportunity to be heard, the hearing cannot qualify as a fair hearing.”It is manifest from the records of the learned senior magistrate that the 1st set of Respondents were denied fair hearing. It is not in dispute that they (1st set of Respondents) timeously and promptly rejected the report of the committee. That being the case, the learned magistrate, consistent with the decisions in the cases r:ited and relied by the parties to the dispute as reproduced Supra, :should have proceeded with the hearing of matter by calling them to adduce evidence. Having failed to do so, it goes without saying that the 1st set of Respondents were. Denied fair hearing by the learned magistrate and I so hold.
I am of the further view that a hearing can only be fair when all parties in the dispute are given a hearing or an opportunity’ of a hearing. If one of the parties is refused a hearing, as in the case we have in hand, or not given an opportunity to be heard, the hearing cannot qualify as a fair hearing. See the case of NDUKAUBA VS KOLOMO (supra)
This issue like the previous one, in the light of all that has been said is resolved in ,favour of the 1st set of Respondents and against the Appellant.
On the 3rd issue for determination which poses the question as to whether the application for certiorari by the 1st Set of Respondents does not rob the learned trial judge of jurisdiction especially when there exist a Notice of Appeal and Motion for Stay of Execution which constitutes an abuse of court process, the learned counsel for the Appellant submitted that the said application for certiorari by the 1st set of Respondents robbery the learned trial judge of jurisdiction especially when there exist a Notice of Appeal and Motion for Stay of Execution which constitutes an abuse of Court Process. Learned counsel opined that the application for certiorari ought to be struck out and allow the appeal to continue together with the Motion for Stay of Execution.
Learned counsel submitted that the filing of originating summons for purpose of certiorari proceedings and allowing a Notice of Appeal and , Motion for Stay of Execution to remain pending is nothing short of using court process to interfere with the administration of justice and it is causing annoyance and irritation to the Appellant. He relied on the case of CENTRAL BANK OF NIGERIA VS AHMED AND ORS (2001) 7SC, SARAKI VS KOTOYE (1992) 9 NWLR (PT 264) page 156 and ANYADUBA VS NRTC LTD (1990) 1 NWLR (part 129) p. 397 to buttress his submission. We were urged to resolve this issue in favour of the Appellant.
Learned counsel for the 1st Set of Respondents on the other hand contended that the trial judge was right and acted within jurisdiction when he took cognizance of the certiorari suit in view of the circumstances of the case in hand. Though they filed a Notice of Appeal and Motion for Stay, oh the 3rd November, 2003, Learned counsel went on, the learned Senior Magistrate chose to ignore the processes and also ignored Order 4 Rule 1 of the Judgment (Enforcement) Rules under the Sheriffs and Civil Process Act, Cap 407 LFN, 1990 by causing the issuing on the same
31/11/2003 of the writ of possession against the 1st sel. Of Respondents without allowing the mandatory days of grace.
Learned counsel, rightly in my view submitted that the learned senior Magistrate, having shown such a bias against the 1st set of Respondents, the only option left was to comply with Order 44 Rule 22 (3) of the High Court (Civil procedure) Rules which provides thus;
” … where execution has been ordered by the court, the application shall not be made to the lower but to the court (High Court). ”
I am of the considered view that the action of the 1rt set of Respondents cannot be said to have constitute an abuse process in view of court the provisions of order 43 Rule 3(6) of the High court (civil Procedure) Rules, 1987 applicable in the state time of the action. The said order provides thus:
“43 Rule 3 (6) where leave is sought to apply for an order of certiorari to remove for the purpose of its being quashed any judgment, order, conviction or other proceedings which is subject to appear and a time is limited for the bringing of the appeal, the court may adjourn the application for leave until the appear is determined or the time for appealing has expired.
It is very clear from the provisions of order 43 Rule 3 (6) reproduced supra that the 1st Set of Respondents are permitted to apply for leave for an order of certiorari provided the appeal is determined, or the time of appealing has expired-which is 30 days. In this case as can be gleaned from the record, the 30 days time of appealing had expired. Learned counsel for the 1st set of Respondents rightly submitted that by order 44(1), the time of appealing expired 30 days after the learned Magistrate’s ruling of 3-11-2003, Consequently their filing of the application of 31-12- 2003 was after the expiry period, which complies with order 44 Rule 1 of the rules of court applicable at that time.
I am of the strong view that there was no abuse of Processes involved in this matter and this issue is therefore resolved in favour of the 1st set of Respondents and against the Appellant.
On issue No. 4, the last but not the least issue for determination which poses the question is to whether the learned trial judge can in law restrain an already completed act, learned counsel for the Appellant submitted that there is no doubt that the learned trial judge knew that the 1st set of Respondents have already been ejected out of the house and that being the case, the trial judge, he went on, was wrong to have restrained the Appellant contending that the act the learned trial judge restrained was already completed. He relied on the case of OGUNTAYO v. ADEBUTU (1997) 72 NWLR (PT 531) P.87 to support his ‘ submission on this point. We were urged to resolve this issue in favour of the Appellant.
On the other hand, learned counsel for the 1st Set of Respondents submitted that the learned trial judge was right in making the restraining order against the Appellant. He is of the opinion that the effect of a superior court’s quashing the judgment of a magistrate court under the prerogative order of certiorari was to set aside completely the inferior court’s decision which was void ab intio. It became as if no such judgment ever existed and any order arising out of the non- existent judgment is ipso facto erased, while it restores to the parties (1st set of Respondent) their old rights of occupation in their accommodation.
Now, the question to be asked at this stage is whether a completed act can be restrained or set aside as canvassed by the learned counsel for the 1st Set of Respondents. In the case of MMB LTD VS JOHN EDOS AND Co. LTD (1997) 10 NWLR (pt s24) p. 309 at page 312, this court held thus:
“A wrongful or irregular execution of a writ of attachment is liable to be set aside by the trial
Court.”
Again, in the case of ORTISE VS MILITARY GOV. OF STATE (1991) 4 NWLR (pt 183) p. 117 this court herd that:
“A writ of certiorari lies at common law to remove the proceedings of inferior courts of record or other persons or quasi judicial functions for the purpose of being quashed …and serves as a means of controlling inferior courts or tribunal.”
I am of the considered view that flowing from the decision of the two cases cited above, a completed act of an inferior court or tribunal done in excess of its jurisdiction as in this case can be quashed or set aside. Appellant’s argument that the High court should be in-capacitated from carrying out its controlling duty once an inferior court or tribunal has put into effect its wrongful and illegal act cannot be the law. once CERTIORARI issues, the Proceedings, order and judgment stand quashed and are therefore void abinitio.
It is also trite that where an inferior court acted in excess of its jurisdiction as in the case in hand, the party aggrieved is at liberty to seek for certiorari, even though there was a right of appeal. This court in LAWAL VS SENIOR MAGISTRATE QUADRI (2004) 6 NWLR page 1 at page 5 held as followsHowever, where the lower court or tribunal jurisdiction adjudicated in excess of jurisdiction, an aggrieved Party will successfully seek an order of CERTIORARI, even though he has a right of appeal…”
Again, let me say that the option to seek certiorari, operates whether the wrongful act is completed or not. This issue like the previous issues is resolved in favour of the 1st set of Respondents and against the Appellant”.
In the result, having resolved all the four issues against the Appellant and in favour of the 1st set of Respondents, the appeal is lacking in merit. It ought to fail. The appeal is accordingly dismissed. The ruling of the learned trial judge delivered on 27th September, 2004 is hereby affirmed. N50,000 costs are awarded in favour of the 1st set of Respondents and against the Appellant.
SULEIMAN GALADIMA. J. C. A.: I have had the privilege of reading the draft of the lead judgment of my learned Brother ABDULLAHI, JCA, just delivered. I entirely agree with his reasoning and conclusion leading to the dismissal of the appeal. I abide by order made as to costs.
EJEMBI EKO. J. C. A.: The lead judgment just delivered by my learned brother, TIJJANI ABDULLAHI, JCA, which I had read before now, has adequately considered and resolved all the issues in this appeal. I have nothing further to add. I agree that the appeal lacks merits and it deserves to be dismissed, and it is hereby dismissed. I abide by all consequential orders therein, including order as to costs.
Appearances
Dr. Amuda KannikeFor Appellant
AND
B.F. OmidinaFor Respondent
