MR. JOHN ONYEKWELU & ORS v. THE CHIEF REGISTRAR KANO STATE HIGH COURT & ORS
(2014)LCN/7292(CA)
In The Court of Appeal of Nigeria
On Friday, the 20th day of June, 2014
CA/K/133/2010
RATIO
APPEAL: APPLICATION FOR LEAVE; WHETHER THE COURT SHALL NOT GRANT LEAVE UNLESS THE APPLICANT HAS SUFFICIENT INTEREST IN THE MATTER WHICH THE APPLICATION RELATES AND THE IMPORT OF THE PHRASE “SUFFICIENT INTEREST”
The first port of call in an application of this nature is to ascertain whether the applicants have sufficient interest to maintain the application. This is a paramount criteria. It is the key consideration in an application of this nature. Order 43 rule 5 of the High Court (Civil Procedure) Rules 1988 (then applicable to the case) provides in that wise thus –
“The court shall not grant leave unless the applicant has sufficient interest in the matter which the application relates.”
The phrase “sufficient interest” is not defined in the enactment.
In my modest opinion, the phrase “sufficient interest” is synonymous with the standing to sue or locus standi. A person or group of persons may have the standing to sue if the subject matter of the litigation is justiciable and concerns their interest or for public good in criminal matters which is addressed to the public at large or the pursuit of the litigation centres on the vindication of the legal rights of the person(s) launching the litigation and/or for society in general with respect to criminal law or litigation. See Fawehinmi v. Akilu (1987) 4 NWLR (Pt. 67) 797, Williams v. Dawodu (1988) 4 NWLR (Pt. 87) 189 and Okoye v. Lagos State Government at 124 – 125. Further good authority has it in the case of Kaycee Nigeria Ltd. v. Commissioner of Police (1975) N.N.L.R. 216 at 217 per Bate, SPJ, that even a stranger to the proceedings may apply for an order of prohibition in these liberal words –
“The English Rules of the Supreme Court, 1965 in the 1973 edition, show in note 3 to Order 53, rule 1, that a stranger may apply. The decisions cited as authority are not available to me but I note that De Haber v. Queen of Portugal 17 QB 171 is also cited for the same proposition in the English and Empire Digest, Blueband ed., paragraph 2186.”
I agree with what Bate, SPJ, said in the case of Kaycee Nigeria Ltd. v. Commissioner of Police (supra) that a stranger may apply especially where there is no objection by the opponent and the stranger shows public interest would be served by his intervention in the proceedings by way of an application for an order of prohibition. per. JOSEPH SHAGBAOR IKYEGH, J.C.A.
COURT; INTERFERENCE; WHETHER AN APPELLATE COURT IS JUSTIFIED TO INTERFERE WITH THE EXERCISE OF THE DISCRETION OF THE TRIAL COURT THAT WAS NOT EXERCISED JUDICIALLY AND JUDICIOUSLY
In my respectful opinion, a discretion exercised in vacuo or without reference to the totality of the relevant materials before the court cannot pass the litmus test of judicious and judicial exercise of discretion. In such a case the Appeal Court is justified to interfere. And I so interfere by holding that the appellants exhibited sufficient interest to sponsor the application at the court below. Accordingly, it was wrong for the court below to have ruled on the application without recourse to all the relevant materials placed before it by the appellants. See Enekebe v. Enekebe (1964) N.M.L.R. 42 at 45, University of Lagos v. Aigoro (1985) 1 NSCC 88, Babatunde v. Pan Atlantic Shipping and Transport Agency Ltd. and Ors. (2007) 4 SCNJ 140 and Oduba v. Schhpv Aartoondernening Houtmangracht and Anor (1997) 5 S.C.N.J 216. per. JOSEPH SHAGBAOR IKYEGH, J.C.A.
JUSTICES
THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria
Between
1. MR. JOHN ONYEKWELU
2. EMMANUEL EJIOFOR
3. BASIL ULASI
4. JOSEPH U. NWOSU
5. NELSON OKOYE
6. OBINNA AKWEKE
7. DAVID CHUKWUMA
8. DANIEL FIDELIS Appellant(s)
AND
1. THE CHIEF REGISTRAR KANO STATE HIGH COURT
2. CHIEF MAGISTRATE COURT 7, KANO
3. THE DIRECTOR PUBLIC PROSECUTION, KANO STATE
4. CHIEF MAGISTRATE COURT 24, KANO Respondent(s)
JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment): The appeal arises out of the refusal of the High Court of Justice of Kano State holden at Kano (the court below) to grant the appellants leave to apply for an order of prohibition restraining the 1st respondent’s exercise of his administrative powers to transfer a part heard case of criminal intimidation from the 2nd respondent to the 4th respondent.
Reduced to the relevant and necessary facts of the case, the appellants stood trial for the offence of criminal intimidation before the Chief Magistrate Court 7 Nomansland Kano, the 2nd respondent. The case had suffered transfer to several magistrate courts before it rested at the 2nd respondent. Evidence was taken from the prosecution witnesses. The Investigation Police Officer (I.P.O.) was the witness left to close the case of the prosecution. It was at that stage that the 1st respondent acting on a petition brought by the police informant in the case transferred the case from the 2nd respondent to the 4th respondent without hearing the appellants on the petition.
The appellants filed an ex parte application for leave to apply for an order prohibiting the transfer of the case. The ex parte motion was argued before the court below. At the time the ex parte application was argued, the 4th respondent had not received the case file. Also, the appellants were yet to appear before the 4th respondent at the material time. The court below refused to grant leave to the appellants on the grounds that the transfer of the case had already been effected by the 1st respondent who, according to the court below, had the powers to make the transfer.
Not satisfied with the decision of the court below, the appellants filed a notice of appeal with four (4) grounds of appeal against the said decision. In a brief of argument dated and filed on 14.6.2010, the appellants raised these issues for determination in the appeal –
“1. Whether the learned trial Judge exercised his discretion judicially and judiciously in refusing the Appellants application for LEAVE to apply for an order of prohibition restraining the 1st Respondent from giving effect to the purported order of transfer of the case pending before the 2nd Respondent to the 4th Respondent?
2. Whether the 1st Respondent is empowered under the Magistrate Courts Law Cap 89 Laws of Kano State 1991 to transfer a case pending before a Magistrate court to another court or Magistrate.”
Reliance was placed by the appellants on Order 43 rules 3 and 5 of Kano State High Court (Civil Procedure) Rules 1988 and the appellants’ affidavit evidence and statement of facts in support of the ex parte application to contend that had the court below considered the said statutory provisions vis-a-vis the ex parte application it would have granted the leave sought by the appellants to apply for an order of prohibition, as the appellants had shown both sufficient interest to launch the application and the breach of their right to fair hearing under Section 36 of the Constitution of the Federal Republic of Nigeria 1999 by the failure to afford them the opportunity to be heard before the order of transfer of the case was made by the 1st respondent; consequently, it was argued that the court below did not exercise its discretion judiciously and judicially and contrary to the Latin maxim ‘ubi jus ubi remedium’ which the court below ought to have used to remedy the wrong done the appellants, therefore this Court should interfere with the wrongful exercise of discretion by the court below citing in support the cases of C. G. (Nig.) Ltd. v. Baba (2005) All FWLR (Pt. 242) 515 at 529, Shittu v. P.A.N. Ltd. (2005) All FWLR (Pt. 253) 682 at 689.
The appellants contended on the second issue that the court below was wrong to hold that Section 32 of the Magistrate Courts Law, Kano State, 1991, (Magistrate Courts Law) empowered the 1st respondent to transfer the case from the 2nd respondent to the 4th respondent, when the 1st respondent is not a magistrate within the clear and unambiguous provision of the said Section 32 of the Magistrate Courts Law, therefore the purported transfer of the case from the 2nd respondent to the 4th respondent was null and void.
The appellants concluded that the appeal be allowed and the order of the court below set aside and an order granting leave to the appellants to apply for an order of prohibition against the transfer of the case from the 2nd respondent to the 4th respondent by the 1st respondent and, also, an order directing another learned Judge of the Kano State High Court to hear the motion on notice be entered by this court in consequence.
The respondents adopted the two issues formulated by the appellants in their joint brief of argument filed on 16.1.14., upon which they argued on the first issue that leave under Order 43 Rule 3 of the Kano State (Civil procedure) Rules 1988 is not automatic and is at the discretion of the court to refuse or grant the leave and the said discretion cannot be questioned vide the case of Ideozu v. Ochoma (2006) 25 NSCQR 451 at 454.
It was also the submission of the respondents that by Order 43 Rule 4 (1) (a) and (b) of the Kano State High Court (Civil Procedure) Rules 1988 the court below may refuse to grant leave or any relief sought in the application if in the opinion of the court below the granting of the leave would be detrimental to good administration.
The respondents further submitted that the ex parte application was filed three (3) days after the order of transfer was made by the 1st respondent therefore, the court below was right to hold that an order of prohibition cannot be granted when the thing sought to be prohibited had already happened citing in aid the cases of R. O. Minister of Health (1929) 4521 L.R. 176, Legal Practitioners Disciplinary Committee v. Fawehinmi (1985) 7 S.C. (Pt. 1) 178 and Okey v. Lagos State Government (1990) 3 NWLR (Pt. 136) 113 to illustrate that prohibition lies only where the act to be prohibited had not taken place.
It was submitted by the respondents on the second issue that the 1st respondent qua the Chief Registrar of Kano State High Court is above the rank of Chief Magistrate Grade 1 and as the directing Magistrate within Kano State Judicial Division the 1st respondent can exercise the power of a Chief Magistrate Grade I to ensure even distribution of work among Magistrate under Sections 8 (2) and 32 of the Magistrates Courts Law to cause the transfer of a case from one Magistrate to another, consequently the court below was right to hold that the 1st respondent had the power to transfer the case in question; so the appeal should be dismissed.
The issues submitted by the appellants for determination in the appeal are, in my view, appropriate and are hereby adopted for the discussion. The first port of call in an application of this nature is to ascertain whether the applicants have sufficient interest to maintain the application. This is a paramount criteria. It is the key consideration in an application of this nature. Order 43 rule 5 of the High Court (Civil Procedure) Rules 1988 (then applicable to the case) provides in that wise thus –
“The court shall not grant leave unless the applicant has sufficient interest in the matter which the application relates.”
The phrase “sufficient interest” is not defined in the enactment.
In my modest opinion, the phrase “sufficient interest” is synonymous with the standing to sue or locus standi. A person or group of persons may have the standing to sue if the subject matter of the litigation is justiciable and concerns their interest or for public good in criminal matters which is addressed to the public at large or the pursuit of the litigation centres on the vindication of the legal rights of the person(s) launching the litigation and/or for society in general with respect to criminal law or litigation. See Fawehinmi v. Akilu (1987) 4 NWLR (Pt. 67) 797, Williams v. Dawodu (1988) 4 NWLR (Pt. 87) 189 and Okoye v. Lagos State Government at 124 – 125. Further good authority has it in the case of Kaycee Nigeria Ltd. v. Commissioner of Police (1975) N.N.L.R. 216 at 217 per Bate, SPJ, that even a stranger to the proceedings may apply for an order of prohibition in these liberal words –
“The English Rules of the Supreme Court, 1965 in the 1973 edition, show in note 3 to Order 53, rule 1, that a stranger may apply. The decisions cited as authority are not available to me but I note that De Haber v. Queen of Portugal 17 QB 171 is also cited for the same proposition in the English and Empire Digest, Blueband ed., paragraph 2186.”
I agree with what Bate, SPJ, said in the case of Kaycee Nigeria Ltd. v. Commissioner of Police (supra) that a stranger may apply especially where there is no objection by the opponent and the stranger shows public interest would be served by his intervention in the proceedings by way of an application for an order of prohibition.
In the instant case, the matter to which the application relates is the transfer of a criminal case from the 2nd respondent to the 4th respondent by the 1st respondent, upon a petition by the police informant. See pages 16 – 18 of the record of appeal (the record). The dual complaint is that the 1st respondent lacked the powers to make the transfer and, that, the appellants were denied a hearing by the 1st respondent before he made the transfer. Of course in any criminal trial an accused person has locus standi in the fortunes of the trial. The anxiety of waiting for the trial to terminate and the speedy trial of the criminal case which is a constitutional requirement enshrined in Section 35 (4) and (5) of the 1999 Constitution, as altered, are matters that singularly affect or concern an accused in a criminal trial. So, to interrupt a criminal case at the juncture the prosecution had taken four witnesses and had a witness to close its case by causing a transfer of the case to another court where it may start afresh, prima-facie, affected the sufficient interest of the appellants as accused in the speedy disposal of the case.
Posturing the application on the position stated above, the appellants had shown sufficient interest to bring the ex parte application, in my view. Had the court below examined the papers in support of the ex parte application it would have ruled that the appellants had disclosed sufficient interest to cross the first vital hurdle for a grant of the application. The court below therefore erred in not taking into account all the relevant papers for the ex parte application to exercise its discretion to grant or refuse the application.
In my respectful opinion, a discretion exercised in vacuo or without reference to the totality of the relevant materials before the court cannot pass the litmus test of judicious and judicial exercise of discretion. In such a case the Appeal Court is justified to interfere. And I so interfere by holding that the appellants exhibited sufficient interest to sponsor the application at the court below. Accordingly, it was wrong for the court below to have ruled on the application without recourse to all the relevant materials placed before it by the appellants. See Enekebe v. Enekebe (1964) N.M.L.R. 42 at 45, University of Lagos v. Aigoro (1985) 1 NSCC 88, Babatunde v. Pan Atlantic Shipping and Transport Agency Ltd. and Ors. (2007) 4 SCNJ 140 and Oduba v. Schhpv Aartoondernening Houtmangracht and Anor (1997) 5 S.C.N.J 216.
By prayer 1 in the motion ex parte in pages 6 – 7 of the record the “Transfer Order” was made on 9.2.2010. While the motion ex parte for leave was filed on 12.2.10 vide page 2 of the record. At the time the motion ex parte was filed on 12.2.10, the order sought to be prohibited had taken place. The court below thought as much in its ruling refusing the leave sought in these unedited words –
“But it appears from prayer 1 of the Applicants that order of transfer has been made since Tuesday, 9th February, 2010. Can what has been done be undone? I think the answer should be in the negative “No”.”
I agree. For in Okupe v. Federal Board of Inland Revenue (1974) A.N.L.R. 284 at 296 – 297, the Supreme Court held inter alia that an order of prohibition lies to restrain an inferior body or tribunal or body of persons from exceeding its jurisdiction. It is a pre-emptive and peremptory remedy. Once the order sought to be prohibited had been issued, as in this case, the remedy of prohibition is extinguished. See the case of Kaycee Nigeria Ltd. v. Commissioner of Police (supra) 216 at 218 thus –
“It is also objected for the respondent that prohibition does not lie in this case because the act which it is sought to prohibit has already been carried out …. Here I think that the learned State Counsel is on firmer ground…. I find that it is too late for prohibition to issue in this case.”
In my respectful opinion, if leave is granted to prohibit what had already taken place, it would tantamount to locking the stable after the horse or steed had escaped. It would be an exercise in futility or an academic exercise indeed. And courts of law do not engage in academic adjudication, nor do courts of law act in vain. See P.P.A. v. INEC and Ors. (2011) 11 – 12 SC (pt. 11) 40, Nwora and Ors. v. Nwabunze and Ors. (2011) 12 SC. (pt. 111) 1, Associated Discount House Ltd. v. Amalgamated Trustees Ltd. (2007) 7 SCNJ 416, Drexel Energy and National Resources Ltd. and Ors. (2008) 12 SC (pt. 11) 240.
The appellants argued that for every wrong there must be a remedy; or ubi jus ibi remedium. I agree. But the remedy here cannot be an order of prohibition. It is not the right remedy. Leave cannot be granted to a party to litigate a spent remedy. In cases the act complained of has already happened, and the complaint is on lack of jurisdiction, and/or alleged denial of fair hearing by the inferior body or person, as in this case, the remedy available may either be certiorari or declaratory action, as the case may be; but certainly not an order of prohibition. See Okupe (supra). So, the appellants cannot say the collapse of the application wrongly deprives them of remedy under the umbrella of the latin maxim ubi jus ibi remedium. There should therefore be no cause for alarm.
The respondents’ reliance on Order 43 rule 4 (1) (a) and (b) of the Kano State High Court (Civil Procedure) Rules 1988 for the contention that the leave sought could not have been granted to the appellants as it would be detrimental to the administration of justice to grant the leave appears, with respect, untenable, as the said consideration avails only after the time for leave has expired and the applicant is asking for extension of time to bring the application. Here the appellants brought the application within time. Therefore Order 43 rule 4 (1) (a) and (b) of the said Rules did not apply to the application.
Arguments were made here and there on the powers of the 1st respondent to transfer cases from one Magistrate to another. I think the arguments are germane when considering the application on notice after leave to file it has been granted. In other words, the arguments are premature and may only be relevant while hearing the motion on notice upon a grant of the exparte application for leave.
In the final analysis, I find the appeal unmeritorious as the leave sought is with respect to an act that was overtaken by events and is no longer amenable to an order of prohibition. Accordingly, I hereby dismiss the appeal and affirm the Ruling of the court below (Shehu Atiku, C.J.) refusing the appellants leave to bring an application on notice for an order of prohibition. Parties to bear their costs.
THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I agree.
TIJJANI ABUBAKAR, J.C.A.: I had the opportunity of reading before now the lead judgment just prepared and delivered by my learned brother IKYEGH J.C.A, I entirely agree with the judgment and adopt same as my own in this appeal.
I also abide by all consequential orders including order on costs.
Appearances
Mr. J. A. Kehinde OlaitanFor Appellant
AND
Mr. D. Y. Dada (D.DPP, Ministry of Justice, Kano)For Respondent
