CHIEF PATRICK UDOH v. INTERCONTINENTAL BANK PLC & ORS
(2018)LCN/11839(CA)
In The Court of Appeal of Nigeria
On Thursday, the 5th day of July, 2018
CA/OW/5/2009
RATIO
COURT AND PROCEDURE: RIGHTNESS OF THE LOWER COURT DECISION
“In resolving this issue it needs to be borne in mind that an Appellate Court should consider the rightness of the decision of the lower Court and not its reasons in an appeal before it. A misdirection which does not occasion injustice is immaterial. See HILLARY FARMS LTD & ORS v. M/V MAHTRA & ORS (2007) 14 NWLR PART 1054 p. 210; OBASI & ANOR v. ONWUKA & ORS (1987) NWLR (PR 61) 364; AMAECHI v. INEC & ORS (2008) 5 NWLR (PT 1080) 227.” PER TUNDE OYEBANJI AWOTOYE, J.C.A.
JUSTICES
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
CHIEF PATRICK UDOH – Appellant(s)
AND
1. INTERCONTINENTAL BANK PLC
2. CHUKS OKONKWO
3. CHINWE EMEKA DIWE
4. HIS WORSHIP G. I. UKEJE, ESQ.
(Chief Magistrate Grade I, Magistrate’s Court Aba South Magisterial District) – Respondent(s)
TUNDE OYEBANJI AWOTOYE, J.C.A. (Delivering the Leading Judgment):
This is the judgment in respect of the appeal filed by the Appellant (who was the second Respondent at the lower Court) against the decision of Abia State High Court delivered on 30/6/2008 in Suit No. A/MI/2008 INTERCONTINENTAL BANK PLC & ORS v. HIS WORSHIP G. U. UKEJE & ANOR.
The applicants had applied for an ORDER OF CERTIORARI to remove into the lower Court for the purpose of being quashed the order of Court below made ex parte on the 4th day of October, 2007 by the 1st Respondent and the entire proceedings in summons No. MAS/MIS/C/44/2007, CHIEF PATRICK UDDOH v. INTERCONTINENTAL BANK PLC & 2 ORS pending before the 1st Respondent and ?for an order that the grant of leave shall operate as a stay of further hearing trial and or determination of the said summons No. MAS/MISC/44/2007 CHIEF PATRICK UDDOH v. INTERCONTINENTAL BANK PLC & 2 ORS pending the determination of the application on notice or until the Court otherwise direct.
After hearing the parties the learned trial Judge ruled inter alia as follows:
What order will this Court make in the interest of justice? This application is brought under Order 43 of the Rules of this Court, which deals with judicial review proceedings. Under Order 43 Rule 1(1)(a) of the Rules there are three reliefs an applicant can seek namely:-
”an order of mandamus, prohibition and certiorari” Order 43 Rule 2 provision.
‘On an application for judicial review, any relief in Rule 1(1) or (2) may be claimed as an alternative or in addition to any other relief so mentioned if it arises out of or relates to or is connected with the same matter’.
To dismiss this application in its entirety will be to punish the applicants for the mistake or inadvertence of their counsel. It was a misconception of the law which the Court is bound to correct on the facts before it. The proper remedy to be sought in this application from the facts of the case before me is for prohibition and not certiorari since the case falls within the jurisdiction of the lower Court. Again Order 47 Rule 1 of the Rules of this Court provides as follows:-
”Subject to particular rules, the Court may in all causes and matters make any order which it considered necessary for doing justice whether such an order has been expressly asked for by the person entitled to the benefit of the order or not”.
Now although the above rule is subject to particular rules, it does not seem to me that Order 43 is one of them. I can therefore substitute the relief of certiorari for that of prohibition even though not asked for, though demanded by the facts and circumstances of the case.
The learned trial Judge in conclusion held thus:
”Consequently and for all I have said, it is in the interest of justice that I hereby substitute the application for certiorari with that for prohibition. I therefore issue the writ of prohibition against the 1st Respondent from continuing the trial of the criminal complaint before her.
ORDER: Writ of prohibition to issue against the 1st Respondent. I award N2,000.00 costs to the 2nd Respondent?.
The Appellant being dissatisfied with the above decision filed Notice of Appeal containing five grounds of appeal which read as follows:
GROUND ONE
Having rightly held that all the grounds on which the Applicants based their application for certiorari had failed, the learned trial Judge erred in law and violated the Appellants right to a fair hearing by turning volte-face to grant an order of prohibition which the Applicant did not seek and on which the parties were not heard.
PARTICULARS OF ERROR
i. An Applicant is bound by the prayer on his motion paper, no matter how misconceived it is.
ii. The Court as an impartial arbiter has no jurisdiction to descend into the arena of conflict to conceive nurture and grant a relief not claimed or to make a case which a party did not make.
iii. Different considerations apply to the relief sought and that granted and the Court was duly bound to hear from the parties before granting a relief which was never in the contemplation of the parties
iv. An applicant is bound by the conduct of his counsel as it relates to the competence vel-non of the counsel and the question of mistake or inadvertence of counsel which is applicable in procedural matters does not arise and was in any case not canvassed by the Applicants.
v. The Court in the circumstances caused a grave miscarriage of justice by abandoning the Applicants claim and to suo-motu to make a fresh one for them.
GROUND TWO
The learned trial Judge misdirected himself and consequently arrived at a wrong decision when he held that:
”Now having made the above findings in this judgment especially as to the various suits that are pending in various Courts including the challenge of the judgment itself in the Court of Appeal, is it fair to allow the trial of the criminal proceedings, the subject matter of this suit, to continue? An appeal has been filed in the Court of Appeal challenging the judgment, the subject matter of the charge before the learned Chief Magistrate. There is also an application before Offonry, J. in Court 1, urging that Court to set aside that judgment. The said suit is yet to be determined. And still there is another suit against the 2nd Respondent in this Court differently constituted for a N1.5 Billion damages. All these suits are between the same parties over this same transaction are all civil suit. Now the money, the subject matter of the complaint before the learned Chief Magistrate was on September 24, 2007 following an application by the applicant, placed under the constructive custody of the Court and has actually been in the proper custody and possession of the Court since December 28, 2007. It seems to me, therefore, unfair and an injustice, in view of the facts and circumstances of this case, to allow the criminal proceedings which if concluded might lead to a conviction of the applicants over the purely civil transaction between a banker and his customer, especially so since the money the subject matter of the complaint is already in the custody of the Court, to continue in that Court”.
PARTICULARS OF MISDIRECTION
i. Having found that the criminal proceedings subject matter of the application before him was valid and competently before the Court, the same Court could not legitimately prohibit the continuation of the proceedings in the name of it being ‘unfair and an injustice’ which was never canvassed by the Applicants.
ii. The pendency of civil proceedings including an appeal against the judgment leading to the institution of criminal proceedings is not a ground for prohibition when the judgment in question was extant having not been set aside.
iii. The paying of the judgment sum into the High Court did not preclude the trial and conviction of the Applicants for previously obstructing the execution of the writ of execution and unlawfully rescuing goods under lawful attachment, both offences under the criminal code.
iv. It was not in the interest of justice for the Court to make a case which the Applicants did not make and furthermore prohibit competent criminal proceedings against acts of the applicants which the same Court had found to be ?fraud? ?deceit’ ?to deceive the Court into releasing his attached properties under the custody of the Court? thereby allowing the applicants to benefit from their fraudulent and deceitful conduct.
GROUND THREE
The judgment is against the weight of evidence.
GROUND FOUR
The learned trial judgment misdirected himself on the facts and the law and consequently arrived at a wrong decision when he held that:-
?Then on 3/10/2007, Mr. Obianwu S.A.N. fulfilled that promise by filing an application before the lower Court for criminal summons to issue against the applicants on the following grounds?.
PARTICULARS OF MISDIRECTION
i. Mr. Obianwu S.A.N. did not file any process before the lower Court as erroneously stated by the Court as that course of conduct is prohibited by statute.
ii. By the provisions of Section 2, 3 and 4 of the Senior Advocates of Nigeria (Privileges and Junctions) Rules the conduct falsely ascribed to Mr. Obianwu S.A.N is prohibited by statute and unbecoming of a Senior Advocate of Nigeria.
iii. The inability of the Court to appreciate the facts before it impaired its consideration of the application before it thus occasioning a miscarriage of justice.
GROUND FIVE
The learned trial Judge was biased against the applicant whom he accused of fraud deceit and concealment without basis.
PARTICULARS OF ERROR
i. In law, “a bank draft (not cheque) is payable at sight and cannot be counter-manded by a letter written in pursuance of the fraud and deceit? which the Court had found against the Applicants.
ii. By failing to appreciate the true nature of the instrument falsely and deceitfully, issued by the Applicants, the lower Court wrongly ascribed fraud and deceit and concealment to the Appellant who acted legally.
iii. This preconceived notion unfairly raised against the Appellant led the Court into truncating lawful criminal proceedings at all costs, thereby sanctioning ‘fraud and deceit’ of the applicants.
After transmission of record of appeal to this Court parties filed and exchanged briefs of argument.
APPELLANT’S BRIEF OF ARGUMENT
The Appellant’s Brief of Argument was filed on 10/8/2009 but deemed filed on 27/1/2016. It was settled by his counsel CHIDOZIE OGUNJI ESQ.
Learned counsel to the Appellant formulated three issues for determination, to wit:
1. Whether the Court below was right in granting a relief which the Appellants did not pray for and on which the parties were not heard (Distilled from ground 1 of the grounds of appeal).
2. Whether the trial Court after holding that the criminal complaint was validly commenced and that all the grounds for seeking certiorari were without merit, could turn around to issue a writ of prohibition stopping the same proceedings (Distilled from ground 2 and 3 of the ground of appeal).
3. Did the Court appreciate the facts and the applicable law (Distilled from ground 4 of the grounds of appeal).
ISSUE NUMBER: ONE
Whether the Court below was right in granting a relief which the Appellants did not pray for and on which the parties were not heard (Distilled from ground 1 of the grounds of appeal).
Learned counsel to the Appellant submitted that the trial Court erred in law when it granted a relief not sought by the Applicant/Respondent and in respect of which the parties were not heard (See page 210 of the record).
He further submitted that it was a settled law that whilst the mistake or inadvertence of counsel as it relates to procedural matters would not be visited on the litigant, the litigant was bound by the conduct of his counsel as it relates to the counsel’s competence. He relied on the cases of AKANBI v. ALAO (1989) 3 NWLR PT. 108 p. 118 AT P. 140; NWAFOR ELIKE v. IHEMEREME NWANKWOALA & ORS (1984) 12 SC. P. 301 AT PP. 311-312; BRISCOE v. BRISCOE (1968) P. 501; (1966) 1 ALL E.R. 4651; MAGMA MARITIME SERVICE LTD & ANOR v. OTEJU & ANOR (2005) 6 CLRN P. 43; IBORI v. AGBI (2004) ALL FWLR PT. 202 P. 1799; IGWESHI v. ATU (1993) 6 NWLR PT. 300 P. 484 AT P. 496.
He submitted that what was deducible from the plethora of the above cited decisions was that the Applicants/Respondents were bound by the competence or incompetence of their counsel and they were bound by his misconception of the appropriate relief that suited the facts and circumstances of the case and the Court below had no business granting then a relief which they did not seek and that they were bound by their prayer no matter how misconceived. He relied on the cases ofAYANBOYE v. BALOGUN (1990) 5 NWLR PT. 151 P. 392; COMMISSIONER OF POLICE BENUE STATE v. DEVCON LTD (1988) 3 NWLR PT. 53 P. 407; OKOYE v. SANTILLI (1990) 2 NWLR PT. 131 P. 172; GOV OF GONGOLA STATE v. TUKUR (1989) 2 NWLR PT. 117 P. 592.
Learned counsel to the Appellant submitted that whichever way one approaches the issue, the trial Court was in grave error in issuing a writ of prohibition against the Chief Magistrate Court when the Applicants did not ask for it and as such descended into the arena of conflict by granting a relief not sought for. He relied on the cases of DUMEZ (NIG) LTD v. NWAKHOBA (2009) 9 WRN PG 20 LINES 30-40; EGONU v. EGONU (1978) 11-12 SC 111; EMMANUEL v. DEBAYO DOHERTY (2009) 4 WRN P. 160 LINES 15-25 CA;IJAODOLA v. REGISTERED TRUSTEES OF C&S CHURCH MOVEMENT (2008) NWLR (PT. 1110) P. 416; ONYEAMA v. OBODOH (2008) 16 NWLR (PT. 1114) 583; VEEPEE IND. LTD v. COCOA IND. LTD (2008) 13 NWLR (PT 1105) 494.
He further submitted that the Appellant’s right to a fair hearing was violated by the decision of the learned trial Judge who did not give him the opportunity to be heard on the issue before granting a relief not prayed for by the Applicant and the Appellant’s fundamental right to be heard, before the Court suo motu granted the new relief was in the circumstances abridged. He relied on Section 36(1) of the 1999 Constitution of F.R.N. (AS AMENDED).
He finally submitted that the case of ADEKEYE v. CHIEF AKIN OLUGBADE (1986) 6 SC P. 268 relied upon by the trial Court in granting the Respondents the relief not sought for was not Applicable in the case. He relied on CASES AND MATERIALS ON CONSTITUTIONAL LAW IN NIGERIA BY P. A. OLUYEDE AND D.O. AIHE 2ND EDITION AT PAGE 391.
Learned counsel to the Appellant urged this Court to resolve this issue in favour of the Appellant.
ISSUE NUMBER: TWO
Whether the trial Court after holding that the criminal complaint was validly commenced and that all the grounds for seeking certiorari were without merit, could turn around to issue a writ of prohibition stopping the same proceedings.
Learned counsel to the Appellant contended that it was difficult to follow the reasoning of the trial Court which had found the conduct of the Respondents to be a ‘fraud’ and ‘deceit’ by issuing a dud cheque to deceive the Court and its officials into releasing their properties could not at the same time raise the issue of fairness in favour of fraudulent and deceitful conduct and that the Respondents at the magistrate Court were being charged for the very acts which the court found to be fraudulent and deceitful. Thus, unfairness was not a ground for issuing a writ of prohibition because prohibition was a remedy strictly concerned with the excess of jurisdiction. He relied on RUBINSTEIN, JURISDICTION AND ILLEGALITY P. 94, R v. GREATER LONDON COUNCIL EX P. BLACKBURN (1976) 1 WLR P. 538 AT P. 559. (See pages 207 line 27; page 208 line 7, 105-106, 208-209 of the records)
He further submitted that the trial Court dismissed each and every ground raised in the challenge of the criminal proceedings but turned around to stop the same process on the ground of unfairness at the instance of persons whose conduct it had found to be fraudulent, deceitful of the Court and its officials, this was not justice and that the trial Court allowed the Respondents to take benefit of their ‘fraud’ and deceit’.
He relied on the cases of ADEDEJI v. N. B. N. LTD (1989) 1 NWLR PT. 96 P. 212 AT P. 226; GREEN v. GREEN (2001) 45 NRN P. 90; EZEUGO v. OHANYERE (1978) 67 SC P. 171; EDUN v. ODAN COMMUNITY (1980) 11 SC P. 103.
Learned counsel to the Appellant submitted that whichever way the decision of the Court was looked at, it was bad in law, unjust and based on irrelevant considerations as such justice was not a one way traffic, there must be justice for the Appellant, justice for the Respondents and justice for the Court and its officials who had been victims of ‘fraud’ and deceit at the hands of the Respondents.
Learned counsel to the Appellant urged this Court to resolve this issue in favour of the Appellant.
ISSUE NUMBER: THREE
Did the Court appreciate the facts and the applicable law? Learned counsel to the Appellant submitted that the inability of the trial Court to appreciate the facts and applicable law affected the decision complained of leading to a miscarriage of justice. He relied on the case of OKWUOSA v. OBIORA (2009) 8 NWLR (PT 1147) P. 593 AT P. 628-P. 629.
He further contended that a Senior Advocate of Nigeria was prohibited from issuing or applying for process in an inferior Court. (SECTION 2, 3 & 4 OF THE Senior Advocate of Nigeria (Privileges and Functions) Rules’ REGISTERED TRUSTEES, ECWA CHURCH v. IJESHA (1999) 13 NWLR PT. 635 P. 368. (See page 198 lines 6-9, 102 of the records)
Learned counsel to the Appellant urged this Court to resolve this issue in favour of the Appellant and allow this appeal.
1ST – 3RD RESPONDENTS’ BRIEF OF ARGUMENT
The 1st – 3rd Respondents’ Brief of Argument was filed on 27/3/2017. It was settled by his counsel EZEOGU CHUKWUEMEKA ESQ.
Learned counsel to the 1st-3rd Respondents formulated three issues for determination to wit:-
1. Whether having regard to the facts and circumstances of this case the learned trial Judge had rightly made an order for prohibition prohibiting further proceedings in the criminal summons pending before 4th Respondent instead of the order for certiorari which the 1st-3rd Respondent had applied for (Distilled from ground 2 of the grounds of appeal).
2. Whether the order of prohibition made by learned trial Judge without the parties specifically addressing him on that issue before judgment amounted to denial of fair hearing and/or miscarriage of justice? (Distilled from ground 1 of the grounds of appeal)
3. Whether the learned trial Judge was biased against the Appellant (Distilled from grounds 4 and 5 of the grounds of appeal).
ISSUE NUMBER: ONE
Whether having regard to the facts and circumstance of this case the learned trial Judge had rightly made an order for prohibition prohibiting further proceedings in the criminal summons pending before 4th Respondent instead of the orders for certiorari which the 1st – 3rd Respondent had applied for (Distilled from ground 2 of the grounds of appeal).
Learned counsel to the Respondents submitted that the learned trial Judge rightly made an order for prohibition after reviewing the facts of this case before him and both certiorari and prohibition were prerogative writs which courts of record or superior courts used to check or control the orders, judgments and proceedings or the powers of inferior courts and that the application for judicial review which the 1st to 3rd Respondents made in the court below for certiorari was bought pursuant to Order 43 High Court of Abia State (Civil Procedure) Rules, 2001. (See also Order 43 Rule 2 of High Court of Abia State (Civil Procedure) Rules, 2001.
He further submitted that the same set of facts in a matter could give rise to the claim for the relief of prohibition or certiorari and either of the reliefs could be claimed in the alternative or in addition to the other. In other words, both reliefs could be claimed in one application at the same time or both of them could be claimed but in the alternative to each other and that the only difference was that while certiorari might be claimed or granted to quash an order or judgment, prohibition might be claimed or granted to prohibit or stop further proceedings. (See pages 101-109, 152-159 of the records)
Learned counsel to the Respondents submitted that the fact that the 1st – 3rd Respondents’ counsel did not claim relief for prohibition either in addition to the relief for certiorari or in the alternative to it in the application for judicial review did not in any way make the action of the Court below wrong. (See Order 47 Rule 1 High Court of Abia State (Civil Procedure) Rules, 2001).
He submitted further that the law was trite that allegations of crime were to be proved beyond reasonable doubt. Thus, the proceedings before the 4th Respondent being criminal proceedings must be proved beyond reasonable doubt, the question then was how such could be proved beyond reasonable doubt without the other matters related thereto being determined or resolved. He relied on Sections 135 and 136 of the Evidence Act 2011 as Amended.
Learned counsel to the Respondents finally submitted on this issue that the criminal summons ought not to have commenced at all when the motion to set aside the judgment/suspension of execution had been filed and was still pending when the criminal action commenced which amounted to an abuse of Court process since the said motion to set aside the judgment/suspension of execution was still pending at a High Court at Aba. He relied on the case of ELIZABETH MABAMIJE v. HANS WOLFGANG OTTO (2016) 252 LRCN PAGE 57 AT PAGE 78.
Learned counsel to the Respondents urged this Court to resolve this issue in favour of the Respondents.
ISSUE NUMBER: TWO
Whether the order of prohibition made by the learned trial Judge without the parties specifically addressing him on that issue before judgment amounted to denial of fair hearing and/or miscarriage of justice.
Learned counsel to the Respondent submitted that the fact that the parties in this case did not address the Court below specifically on the prerogative writ of prohibition before same was ordered did not amount to any denial of fair hearing and neither did it lead to any miscarriage of justice. He relied on the case of AKPUNONU v. BEKAERT OVERSEAS & ORS (1995) 5 NWLR PART 393 PAGE 42 AT PAGE 64.
He submitted that there was no miscarriage of justice in this since an order of certiorari or prohibition would have had the same effect on the criminal proceedings before the 4th Respondent. (See page 209 of the record)
Learned counsel to the Respondent submitted that rules of Court were meant to be followed and implemented, that the rules of Court were not made for the fun of it. He relied on FIRST BANK OF NIGERIA PLC v. KAYODE ABRAHAM (2009) 179 LRCN PAGE 156 AT PAGE 173.
He submitted that the law was trite that the mistake of counsel could not be visited on the poor litigant.
He further contended that it would have amounted to denial of fair hearing if the 4th Respondent was allowed (without the order of prohibition) to hurriedly try the 1st – 3rd Respondent regardless of the other suits and issues that needed to be resolved first. He relied on the case of ALHAJI SANI ABUBAKAR DANLADI v. BARR. NASIRU AUDU DANGIRI (2014) 238 LRCN PAGE 1 AT PAGE 42.
ISSUE NUMBER: THREE
Whether the learned trial Judge was biased against the Appellant.
Learned counsel to the Respondents submitted that the learned trial Judge was not in any way biased against the Appellant, the trial Court made an order of prohibition instead of certiorari which he was empowered to do under Order 47 Rule 1 and Order 43 Rules 1 and 2 of Abia State High Court (Civi Procedure) Rules, 2001 did not make him to be biased and that the learned trial Judge stated that the criminal summons was signed by Obiora Obianwu SAN and not Chidozie Ogunji did not mean that he was biased or that he did not appreciate the facts of the case as such the allegation of bias was baseless and unfair to the learned trial Judge. He relied on the case of G. C. AKPUNONU (DOING BUSINESS UNDER THE NAME AND STYLE OF G. C. AKPUNONO TRADING COMPANY) v. BEAKARI OVERSEAS & 2 ORS (1995) 5 NWLR (PART 393) PAGE 42 AT PAGE 76.
Learned counsel to the Respondents urged this Court to resolve this issue in favour of the Respondents and dismiss the instant appeal as same lacks merit.
RESOLUTION OF ISSUES
The issues formulated by learned counsel on either side are similar. I shall therefore focus on the issues as framed by the Appellant’s counsel as I consider them apt for the just determination of this appeal.
The three issues are:-
a. Whether the Court below was right in granting a relief which the Appellants did not pray for and on which the parties were not heard.
b. Whether the trial Court after holding that the criminal complaint was validly commenced and that all the grounds for seeking certiorari were without merit could turn around to issue a writ of prohibition stopping the same proceedings.
c. Did the Court appreciate the facts and the applicable law?
I have deeply considered the arguments canvassed by learned counsel on both sides.
ISSUE A
It is true the Applicants/Respondents at the lower Court prayed for an order of certiorari and not prohibition and yet the lower Court granted an order of prohibition.
In resolving this issue it needs to be borne in mind that an Appellate Court should consider the rightness of the decision of the lower Court and not its reasons in an appeal before it. A misdirection which does not occasion injustice is immaterial. See HILLARY FARMS LTD & ORS v. M/V MAHTRA & ORS (2007) 14 NWLR PART 1054 p. 210; OBASI & ANOR v. ONWUKA & ORS (1987) NWLR (PR 61) 364; AMAECHI v. INEC & ORS (2008) 5 NWLR (PT 1080) 227.
The Appellant had obtained judgment against the 1st Respondent in Suit No. A/M/310/2007 , Chief Uddoh v. Intercontinental Bank Plc & Ors at Aba High Court delivered on 13/9/2007. During the execution of the judgment some properties of the 1st Respondent were attached. In satisfaction of the judgment debt the Respondent issued a bank draft which was dishonoured by the Respondent. As a result of this at the instance of the Appellant criminal summons was issued by Chief Magistrate Court Aba South commanding the Respondents to appear at the said Court on 10/10/2007.
The said order was issued on 4/10/2007. Prior to the issuance of the order, the Respondents on 24/9/2007 had applied to the High Court of Abia State, Aba Judicial Division in suit No. A/M/310/2007 praying for extension of time to set aside the default judgment order to set the said judgment aside, stay of further execution of the said judgment among other prayers. The Respondents further instituted an action in suit No. A/316/2007 in respect of the execution of the judgment, claiming damages on 17/10/2007 (See pages 81-89 of record of appeal). On 3/1/2008, the Respondent further filed an appeal to challenge the judgment of 13/9/2007 in Suit No. A/M/310/2007. (See 90-94 of record of appeal).
The Respondents even went further to apply for writ of certiorari on 9/1/2008 praying that the order of the Chief Magistrate made ex parte on 4/10/2007 be removed to the High Court for the purpose of being quashed.
All these Suits were pending as at the time the lower Court delivered the judgment subject of the instant appeal.
It seems clear to me that the multiplicity of the action muddled up the course of justice and was capable of leading to conflicting judgments being delivered in respect of the same subject matter. This could bring the administration of justice into disrepute. If the suits had been instituted in the same Court the learned trial Judge would have dismissed the suits that constituted abuse of Court process. See IGBEKE v. OKADIGBO & ORS (2013) 12 NWLR PT 1368 p. 225, DINGYADI & ANOR v. INEC & ORS (2010) 7-12 S.C p. 105; ARUBO v. AIYELERU (1993) 3 NWLR (PT 280) p. 125.
The offending suit in this instance was the criminal action commenced at the Chief Magistrate Court after the Respondents had applied to the High Court for extension of time to apply to set aside the default judgment in A/M/310/2007 on 24/9/2007.
Nnaemeka-Agu JSC. in ARUBO v. AIYELERU (supra) had this to say on the inherent power of a Court to correct an ugly situation like this, he said:
?Now inherent jurisdiction or power is a necessary adjunct of the powers conferred by the Rules and is invoked by a Court of law to ensure that the machinery of justice is duly applied and properly lubricated and not abused?.
The lower Court was right in my respectful view to have frowned at the issuance of criminal summons by the Chief Magistrate Court and the continuation of the criminal proceedings in the face of the several actions instituted at the High Court challenging the default judgment which was the very basis of the execution subject matter of the criminal summons. The lower Court simply stopped the criminal proceedings which constituted an abuse of Court process by the Chief Magistrate Court. His lordship rightly invoked his powers under Order 47 Rule 1 of the Rules of Court and Section 58(1) of the Magistrates Courts Law Cap. 82 Laws of Eastern Nigeria 1963 to stop the offending criminal proceedings. Section 58(1)(H) of the Magistrate Courts Law read thus:
(I) ”The High Court may call for and examine the record or any certified copy thereof of any criminal proceedings before any Magistrate Court which is within the area of jurisdiction of the High Court for the purpose of satisfying itself as to the correctness, legality or property of any findings, sentence or order recorded or passed, and as to the regularity of any such proceedings of any such Magistrate’s Court.
(H) Make any order as justice may require, and give all necessary and consequential directions:
Provided that when a person convicted shall have appealed against such conviction, or which the Magistrate shall have reserved any point of law for the consideration of the High Court and shall have stated a case thereon, the High Court shall not exercise the power by this section conferred until after the conclusion of the proceedings upon such appeal or stated case:
Provided further that the powers conferred upon the High Court by Subsections (1) and (3) shall not be exercised after the expiration of six months from the termination of the criminal proceedings in the Magistrate’s Court?.
The order of the Court even though wrongly framed as order of prohibition falls within the purview of the provision of Section 58 of the Magistrate Courts Law. I therefore for the above reasons agree with his lordship. It is in line with dictates of justice. The decision of the learned trial Judge was right. That is the focus of my attention and concern as an appellate Judge? the rightness of the decision and not the reasons. I therefore resolve this issue against the Appellant.
ISSUE B
This issue dovetails into issue A. Was it in the interest of justice for the Appellant to abuse the machinery of justice by proceeding with the criminal proceedings at the Chief Magistrates Court during the pendency of the actions at the High Court on similar issues? The answer in my humble opinion is No. Even though there was some misdirection in law, it was insignificant since the decision of the lower Court was right.
See HILLARY FARMS LTD & ORS v. M/V MAHTRA & ORS (supra). The decision of the lower Court did not occasion any injustice.
I also resolve this issue against the Appellant.
ISSUE C
Did the Court appreciate the facts and the applicable law? My answer is yes. My reasons are not different from the ones aforestated earlier in this judgment. I resolve this issue also against the Appellant. I am not unmindful of the insinuation of bias as made by Appellant’s counsel. I must say that a good professional does not lightly indict the integrity of a Judge all in a bid to win his case. The allegation of bias made by learned counsel is not justifiable at all. It is an unfair allegation. The words of wisdom of NGWUTA JSC. on this issue are germane in this regard. Ngwuta JSC in HUSSENI & ANOR v. MOHAMMED & ORS (2014) LPELR 24216 (SC) said thus:
It is the duty of learned counsel notwithstanding his side of the divide to guard and protect the integrity of the Court with the wrap around security of a mother hen over its chickens. Any aspersion, express or implied cast on the Court by any counsel, reflects adversely on that counsel?. See also NWAFOR v. ANYAEGBULAM (1979) LPELR-2765 (SC).
This appeal lacks merit. The decision of the lower Court delivered on 30/6/2008 in suit No. A/MI/2008, INTERCONTINENTAL BANK PLC & ORS v. HIS LORDSHIP G. U. UKEJE & ANOR is hereby affirmed.
Appeal is dismissed with N100,000 costs in favour of the Respondents.
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I have read before now and while in draft, the lead judgment of my learned brother, Hon. Justice Tunde Oyebamiji Awotoye JCA which has just been delivered, I am in agreement with my noble Lord that the instant appeal matter is devoid of any vestige of merit and that it should be dismissed. I also dismiss it and I abide by all the orders made in the lead judgment of my learned brother, Awotoye, JCA.
ITA GEORGE MBABA, J.C.A.: I agree with the reasoning and conclusions of my learned brother, T.O. AWOTOYE JCA, in the lead judgment, just delivered.
I too dismiss the appeal and abide by the consequential orders in the lead judgment.
Appearances:
Chidozie Ogunji, Esq.For Appellant(s)
Ejikeme Osuala, Esq.For Respondent(s)
