CHIEF VICTOR OKOLO & ORS v. H.O. OKONKWO ESQ. & ANOR
(2019)LCN/13832(CA)
In The Court of Appeal of Nigeria
On Friday, the 1st day of November, 2019
CA/B/280C/2008
RATIO
WHEN AN APPLICATION FOR PROHIBITION WILL COME INTO PLAY
In the cases of Ugoh v. Benue State Local Government Service Commission (1995) 3 NWLR (Pt. 383) 288, Oduwole v. Famakinwa (1990) 4 NWLR (Pt. 143) 239 and Governor of Oyo State v. Folayan (1995) 8 NWLR (Pt. 413) 292,
Among the remedies available for judicial review are the prerogative writs of certiorari and prohibition. In judicial review, the Court is concerned with the legality and not with the merits of the proceedings, decisions or acts of the inferior Court. These prerogative writs are designed to check the excesses and arbitrary decision of inferior Tribunals whereby the Tribunals are compelled to bring up their record of proceedings to the superior Court for correction and/or for the purpose of being quashed, where appropriate. PER MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.
JUSTICES
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
MOORE ASEIMO ABRAHAM ADUMEIN Justice of The Court of Appeal of Nigeria
Between
1. CHIEF VICTOR OKOLO
2. DADA OKOLO
3. CHIEF FRANCIS EZE ONOCHIE
4. ADIM ONOCHIE
5. PATRICK SUNDAY OKOLO
6. ANANDU OKOLO Appellant(s)
AND
1.H.O. OKONKWO, ESQ.
(Chief Magistrate Grade II, Asaba Magisterial District)
2. COMMISSIONER OF POLICE, DELTA STATE Respondent(s)
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A. (Delivering the Leading Judgment) The appellants are the accused persons in Charge No. CMA/171C/2004 whereby they are charged with the offences of conspiracy to commit forcible entry; forcible entry into a parcel of land known as Oshigbo-Abo Elili which is in the peaceable possession of one Dr. Philip O. Onianwa; conspiracy to commit wilful damage; wilful damage of some concrete pillars, boreholes and the fence – properties of the said Dr. Philip O. Onianwa.
The said charge was filed by the 2nd respondent ? Commissioner of Police, and it is being tried by the 1st respondent ? H.O. Okonkwo, Esq., who is a Chief Magistrate in Delta State. The appellants are also the defendants in Suit No. A/223/2003 instituted in the High Court of Delta State, holden at Asaba, by Dr. Philip O. Onianwa in which he is seeking N500 million special and general damages for trespass and injunction against the appellants, as defendants. In 2005, the appellants instituted Suit No. A/M/70/2005 in the High Court of Delta State, sitting at Asaba, in which they applied for:-
1). Leave to apply for an order of prohibition prohibiting the 1st respondent from entertaining or hearing or continuing to hear charge No.: CMA/171C/2004 with respect to the applicants.
2). An order that the grant of the leave aforesaid shall operate as a stay of proceedings on all actions in the said charge No. CMA/171C/2004 with respect to the applicants pending the determination of the motion on notice.?
The relief reproduced above was later amended to be as follows:-
An order of prohibition prohibiting the 1st respondent from entertaining, hearing or continuing to hear charge No: CMA/171C/04 with respect to the applicants pending the determination of the issues in Suit No: A/223/2002 between the complainant and the applicants.
The appellants application was opposed by the respondents. After hearing the parties, on the application for prohibition, the trial Court delivered a reserved judgment on 15/04/2008 whereby the application was refused and dismissed, accordingly. This appeal is against the said decision.
A sole issue was identified for determination by the learned counsel for the appellants as follows:-
Whether the learned trial Judge was right to dismiss the appellants application for prohibition.”
Learned counsel for the respondent adopted the issue for determination as formulated by the appellant.
The argument of learned counsel for the appellants is basically that the claim for title to the land in dispute ought to be first resolved before the criminal prosecution of the appellants. In support of this argument, learned counsel referred the Court to the case of Joseph Oshomah v. Owen Jones Nylander (1973) CCHCJ 120, per Adefarasin, J.
On the essence of an order of prohibition, learned counsel cited and relied on cases of Williams v. Dawodu (1988) 4 NWLR (Pt. 87) 189 at 208.
In response, learned counsel for the respondents argued that the dicta of Adefarasin, J. in Joseph Oshomah v. Owen Jones Nylander (supra) do not apply to this case because it is not binding on this Court and that the decision ?is easily distinguishable from the instant case. Joseph Oshomah?s case dealt with an offence touching on title or ownership of the land in dispute whereas the offences in the instant case concerns (sic) possession and not title.”
Learned counsel for the respondents submitted that the order of prohibition cannot avail the appellants in the circumstances of this case because:-
In the Court below, the appellants conceded that the 1st respondent has jurisdiction to try the offences charged, as per Charge No. CMA/171C/2004. They also conceded that the issue of title raised in Suit No. A/223/2002 is not relevant to the determination of Charge No. CMA/171C/2004, which, at any rate, is not before the 1st respondent hereof. As we have ably demonstrated above, the prerogative writ of prohibition lies to restrain an inferior Tribunal from exceeding its jurisdiction.
Relying on the cases of Ugoh v. Benue State Local Government Service Commission (1995) 3 NWLR (Pt. 383) 288, Oduwole v. Famakinwa (1990) 4 NWLR (Pt. 143) 239 and Governor of Oyo State v. Folayan (1995) 8 NWLR (Pt. 413) 292, learned counsel for the respondent urged the Court to resolve the issue against the appellants bycontending as follows:-
Among the remedies available for judicial review are the prerogative writs of certiorari and prohibition. In judicial review, the Court is concerned with the legality and not with the merits of the proceedings, decisions or acts of the inferior Court. These prerogative writs are designed to check the excesses and arbitrary decision of inferior Tribunals whereby the Tribunals are compelled to bring up their record of proceedings to the superior Court for correction and/or for the purpose of being quashed, where appropriate.
I read the record of proceedings, including the judgment of the trial Court. I have also read the briefs of the parties to this appeal. In addition, I have adverted my mind to the legal authorities cited and relied upon by the contending parties. To be brief and precise, the trial Court, per Hon. Justice T.O. Diai, was eminently right by holding on pages 148 to 149 of the record of appeal as follows:-
The Court has set out these submissions in order to highlight the basis upon which this application for prohibition is predicated. It has been conceded that the lower Court has jurisdiction to try the offences charged. It is conceded too, that the issue of title, which the Magistrate is prohibited from trying, is not relevant to the determination of the charge in the lower Court. The basis of this application appears to be that the issue of peaceable possession and ownership of the properties alleged to have been damaged by the respondents are pending in the High Court and for this reason, the lower Court ought to be prohibited from hearing the charge pending before it, pending the determination of these issues in the High Court.
I have stated earlier that the prerogative writ of prohibition will lie to restrain an inferior Tribunal from exceeding its jurisdiction. If, as it is conceded, the lower Court has jurisdiction to try the offences charged and that the trial will not impinge on issues which the Magistrate has no jurisdiction to entertain in the course of hearing, then an order of prohibition, in my view, would not be available to the application.
The above decision of the trial Court, upon the review of the appellants application for prohibition, is amply justified in view of the facts and circumstances of the case and the law applicable to the remedy of judicial review by way of prohibition. The appellants have not advanced any reason to show that the trial Court erred in its reasoning and decision.
Without further ado, I hold that the trial Court was right to have dismissed the appellants application for prohibition. The lone issue in this appeal is hereby resolved against the appellants.
This appeal fails and it is hereby dismissed.
The decision of the trial Court, per Diai, J., delivered in Suit No. A/M/70/2005 on the 15th day of April, 2008 is hereby affirmed.
CHIOMA EGONDU NWOSU-IHEME, J.C.A.: My lord M.A.A. ADUMEIN, JCA obliged me with the draft of the lead judgment just delivered. I agree with the reasoning and conclusion that the judgment of the trial Court be affirm.
I hereby affirm the judgment of Dial., J, delivered in Suit No. AIM/70/2005 on the 15th day of April, 2008.
TUNDE OYEBANJI AWOTOYE, J.C.A.: I entirely agree.
9
Appearances:
C.O. Erondu, Esq. with him, E.J. Okoli, Esq. and S.A. Nwaeli, Esq.For Appellant(s)
A.O. Orhorhoro, Esq. (Deputy Director, Delta State Ministry of Justice)For Respondent(s)
Appearances
C.O. Erondu, Esq. with him, E.J. Okoli, Esq. and S.A. Nwaeli, Esq.For Appellant
AND
A.O. Orhorhoro, Esq. (Deputy Director, Delta State Ministry of Justice)For Respondent
