Abdullahi Abubakar V. Alh. Ibrahim Mai’ahu (1993)
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SIMEON ADEBAYO ODUWOLE, J.C.A.
Two motions are involved in this matter. The first which is for committal is sequel to an ex parte order made by this Court on 26/5/93 in CA/K/117M/93 whilst the second is for an order to vacate the said order.
In the first notice for committal, the complaint of the applicant Abdullahi Abubakar is that the order of this Court made on Alhaji Ibrahim Mai’ahu the Chief Registrar of High Court of Justice, Kebbi State on 26/5/93 had been flouted and whereby he prays this Court for-
(i) “An order committing Alhaji Ibrahim Mai’ahu (the Chief Registrar, High Court of Justice, Kebbi State) to prison for contempt of Court in that the said respondent (Alhaji Ibrahim Mai’ahu) has refused, failed and/or neglected to release to the applicant his Peugeot 404 Pick-up Van with Registration No. SO 2666 BA, Engine No. 1269147, Chasis No. 1269147 in flagrant disobedience to the order of this Hon. Court in Appeal No. CA/K/117M/93 made on the 26th day of May, 1993 which order was served upon the said respondent twice on 27th May, 1993 and on 15th June, 1993;
(ii) For such further consequential order or orders as this Hon. Court may deem fit to make in the circumstance.” (Bracket and underlining supplied).
In the supporting affidavit to this first motion for committal the applicant deposed that the respondent Alhaji Ibrahim Mai’ahu the Chief Registrar, High Court of Justice Kebbi State was ordered by this Court on 26/5/93 to release to him his Peugeot 404 Pick-up van but which order the said Chief Registrar has bluntly refused to comply with not only after due service of the said order on him but even after a serious formal complaint concerning the flagrant disobedience of the said order to his Chief Judge. The applicant further deposed in paragraphs 7, 8 & 9 of his affidavit as follows:-
(7) “That I was informed by the respondent on 15th June, 1993 in hausa language when we went to serve him with a copy of the said letter and I verily believe him:-
That neither my counsel nor this honourable Court can force him to release the said Pick-up Van which Registration has been changed from SO 2666 BA to “K823” by one Manu Oro to whom the said vehicle was given by the respondent and that if either my said counsel or this Honourable Court has the power to get the vehicle from them, they (my counsel and this Honourable Court) should come to Birnin Kebbi and collect it.
(8) That I verily believe that I have been prosecuted at the Upper Area Court 1, Birnin Kebbi by the said Manu Oro for my demanding from him how he got my said vehicle and I verily believe that my prosecution and conviction on the 17th June, 1992 was instigated by the respondent (a copy of the Revenue Collector’s Receipt No. 002148 dated 17th June, 1993 being the fine I paid is attached herein and marked as Exhibit “B”).
(9) That the Policemen now threaten me and my aged parents with detention if I do not stop fighting this case and I now live in constant fear and I verily believe that unless restrained by this Honourable Court, I will be constantly detained by either the courts or Police in Kebbi State.”
It is pertinent to note at this juncture that this committal application relates only to the second part of the order granted in favour of the applicant in this Court on 26/5/93. Somehow there is no indication whatsoever that the first part of the said order which directs the Chief Judge of Kebbi State to expedite the hearing of the criminal appeal concerning the applicant has been complied with and yet uptill now neither has any process been set in motion to enforce that part of the order and more so that the order for the release of the applicant’s Peugeot 404 Pick-up is interlaced with the said order on the Hon. Chief Judge. Be that as it may, one cannot but concede to the applicant that the right of preference of the legal remedies available to him is his and his only and not that of his counsel. In the respondent’s counter affidavit he deposed inter alia that even though he was not a party to the motion filed by the applicant upon which the order for the immediate release of his Pick-up Van to him who made and which order was subsequently served on him, nonetheless he avers that he is at all times willing and ready to comply honestly with any order of this Honourable Court sought and obtained in good faith. He deposed further that the applicant deceived the Court in making the said order in that his purported criminal appeal (KB/BK/41A/92) said to be pending before the State High Court had been disposed on the 27/4/92 long before the filling of the said motion upon which the said order was made. The certified true copy of the criminal appeal proceedings is exhibited to the counter affidavit as Exhibit B. It was also averred that throughout the proceedings in exhibit B the applicant was adequately represented by counsel of his choice.
However, in order to appreciate the purport of the 2nd motion to vacate the said order filed by the Chief Registrar High Court of Justice Kebbi State I think it is appropriate to set out fully the relevant parts of the order which read-
“……..it is hereby ordered that
(i) The application is granted as prayed;
(ii) The Chief Registrar High Court Birnin Kebbi (Kebbi State) is hereby ordered to see that this appeal is placed before the High Court appellate division Birnin Kebbi for determination;
(iii) The Chief Judge is hereby ordered to see that the appeal is heard within two months from today;
(iv) The Chief Registrar is also directed to recover the Peugeot 404 Pick-up Van and release it to the applicant immediately.” (underlining for emphasis).
The said Chief Registrar of High Court of Justice Kebbi State in his own application for an order to vacate the ex parte order of this Court made on 26/5/93 deposed to similar facts as in his counter affidavit to the applicant’s application for his committal and to which some reference had already been made. He however proceeded further to lay emphasis on how the respondent, Abdullahi Abubakar has mischievously confused and misled this Court into making the said ex parte order. Some of the relevant paragraphs in his supporting affidavit are paragraphs 7, 7(a) – (h), 8 & 9 stated hereunder-
(7) “That the said Chief Magistrate Alh. Suleiman Ambursa confirmed to so in my office and I verily believed him as follows:-
(a) That the convict/appellant was brought to his court by the police on two separate cases of theft i.e. one for stealing 4 herds of sheep at Gulimbo Fulani settlement valued at N2,000.00 on 18th day of August, 1991 and another one, the applicant along with one other person, on the 21st of August, 1991 at Dutse Fulani settlement stole 2 heads of cows valued at N11,000.00.
(b) That all the animals were transported at the respective dates and time in the convict/appellant’s vehicle a Peugeot 404 Pick-up van.
(c) That the convict/appellant was convicted in both cases.
(d) That the case dealing with the theft of sheeps (sic) was first disposed off then followed by the one in respect of the theft of cows.
(e) That while sentencing the applicant, in the first case the court gave him the option of fine while in the second case no option was given.
(f) That having realized that the pick-up van was the weapon used by the applicant in perpetrating the crime and which has already been tendered as exhibit in the trial, the court forfeited the said van to the State and ordered for its disposal part of the proceed to be used in paying the owner of the cows and the balance to be paid into the government treasury and so was done. The Court order of forfeiture and receipt of the remaining balance of N6,000.00 are attached hereto and mark as Exhibits “B & C” respectively.
(g) That throughout the trial the applicant was represented by a counsel of his choice one Abubakar Abdullahi Esq. from Shantell & Co. Chambers Birnin Kebbi. Refer to “Exhibit G”
(h) That being dissatisfied with the decision of the trial court the applicant appealed to the High Court.
(c) That I extended my investigation in the High Court where I discovered that the appeal was assigned to Honourable J.O. Omokri.
(9) That at Justice Omokri’s Court I discovered that the appeal No. KB/BK/41A/91 filed by the applicant was finally disposed off on 27th April, 1992 the copy of the said judgment is herewith attached and mark as “Exh. D”.
At the hearing of the two motions referred to supra on 16/9/93 it became obvious that the 1st motion for committal filed by Abdullahi Abubakar will certainly be subsumed by the 2nd motion for vacating the 2nd order of this Court made on 26/5/93 sought to be enforced by the full coercive force of law of committal to prison of the alleged ‘contemnor’ the Chief Magistrate of Kebbi State High Court if this 2nd motion succeeds. Put simply in another way, the success of the 2nd motion which will normally result in the discharge of the said order of 26/5/93 would make the hearing and determination of the 1st motion for committal superfluous and unnecessary as it would have then been overtaken by events. Infact both learned counsel in the two motions are agreeable to this course of action which I consider not only apt but prudent.
Consequently, in arguing the 2nd motion first, Mr. M. B. Audia the learned Deputy Director of Public Prosecution Ministry of Justice Kebbi State for the applicant in this 2nd motion submitted briefly that the order of this Court made on 26/5/93 ought and should be vacated in that (a) the order was made on the premises that the appeal No. KB/BK/41A/91 filed by Abdullahi Abubakar had not been heard for two years when it had infact been heard and judgment given in the said appeal by the Hon. Justice Omokiri at Birnin Kebbi High Court on 27/4/92 that is to say over a year before the respondent’s ex parte motion which culminated in our first order for the release of his Peugeot 404 Pick-up van to him; (b) that with regard to the order (Exhibit B) attached to the respondent’s application in relation to the Pick-up No. SO 2666 SA which was tendered as Exhibit A at the trial in one of the two sister criminal cases involving the respondent Abdullahi Abubakar had been disposed as the vehicle owned by the respondent and used by him in the proceeds had been used to compensate one of the complainants whose cow was stolen and the balance paid to government officers as per Exhibit C.
Mr. Ustaz Usman the learned counsel for the respondent however submitted that the application is incompetent having not been brought timeously that is within 21 days from the day the order sought to be set aside was made. Reliance was placed on Or.3 R.27(1)(2) of Court of Appeal Rules, 1976 which as rightly contended by Mr. Audie in his reply does not appear to be relevant in that to be applicable the order must be founded on an appeal lodged to this Court and not otherwise as in the nature of the application in hand that is not predicated nor arising from any appeal. It is further contended by the learned counsel that the Exhibits and in particular the Court’s order for forfeiture of the respondent’s Pick-up van and the receipt showing the sum for the balance of N6,000.00 realized from the sale of the forfeited respondent’s Pick-up van attached to the motion as Exhibits B & C respectively are public documents but which were not certified to make them admissible. He concluded therefore, that there is nothing on the record that the trial court did infact make a forfeiture order in respect of the respondent’s vehicle and which in effect means that the respondent’s Pick-up van has not been forfeited on the face of the applicant’s application for discharge, when on the ground it is no longer so. The learned counsel further submitted, that even though no appeal was pending in this Court when the order sought to be vacated was sought and proved, the Court is nonetheless, vacated with inherent jurisdiction to hear and determine the said ex parte motion in the manner it did and which resulted in the order now being sought to be vacated.
After the conclusion of argument and in answer to question put by the Court and before ruling was reserved, both learned counsel agreed that if there was no further appeal pending in this Court in respect of the original appeal No. KB/BK/41A/91 at the time the order for the release of the respondent’s vehicle was made by this Court on 26/5/93 the order will not operate being a NULLITY.
Having reached thus far what remains therefore, is whether as spiritually contended by Mr. Ustaz Usman the learned counsel for the respondent in this 2nd application that inspite of the fact that there is no appeal pending at the time he filed the ex parte application leading to his subsequent application for committal, this Court, under its inherent jurisdiction was still right to have heard this ex parte application which was somehow pending before it and that the Court was equally right to have made the consequential order already referred to supra.
I am afraid that Mr. Usman’s submission on the employment of the inherent power of the Court to vest jurisdiction on this Court where it has none has not found the least favour with me because the powers of this Court as will as any other court having appellate jurisdiction are founded on statute as clearly enunciated recently by Karibi-Whyte JSC in Odofin v. Agu (1993) 3 NWLR Pt. 229 p. 350 at p. 367:-
“It is a well settled principle of law that the exercise of appellate jurisdiction is entirely statutory- See Queen and Resident Ijebu Evidence (1959) WNLR 87, Ugwu v. A.G. East Central State (1975) 6 SC 13. An appellate court derives its jurisdiction from the statute creating it and other enabling statutory powers – See Moses v. Ogunlabi (1975) 4 SC 31. The Court of Appeal is a creature of the Court of Appeal Act, 1976, and S. 217 of the Constitution 1979. The exercise of its appellate jurisdiction is spelt out in the constitution. S. 219 vests in the Court of Appeal the jurisdiction to hear and determine appeals from the Federal High Court, High Court of a State. Sharia Court of Appeal of a State and Customary Court of Appeal of a State. Ss.220 – 225 prescribes the circumstances.” (underlining supplied).
See also Moore v. Tavee (1934) 1 WACA 43. This same authority of Odofin’s case supra is also instructive in sounding a cautious note to counsel who times without number indulge in invoking the inherent powers of the Court when in difficulties of some sort that are more often than not self created without the least advertence to the Court’s jurisdiction vis-a-vis its inherent powers. At P. 369 the learned justice of the Supreme Court Karibi Whyte has this to say-
“Now and then Mr. (A’s) main contention is that the Court of Appeal has an inherent power to make a consequential order. He includes a gratuitous order for extension of time to file a notice of appeal as a consequential order. There are few misconceptions here first, I have pointed out the exercise of appellate jurisdiction is entirely statutory. There cannot therefore be an inherent jurisdiction outside the statute. Secondly, learned counsel was confusing the exercise of jurisdiction with the exercise of powers. See Adeloba v. Kushima (1965) 1 All NLR 248; (1965) NMLR 284. Power cannot be exercised unless where there is jurisdiction in respect of the subject matter – See Bronik Motors Ltd. v. Wema Bank Ltd. (1983) 3 SCNLR 295, (1993) 6 SC 158. It is not exercised in vacuo…………. Provisions of S.6 of the Constitution, 1979 which deals with inherent powers is of assistance only where there is a valid exercise of jurisdiction – See ex parte Atom (1961) 1 All NLR 51, Bronik Motors Ltd. v. Wema Bank supra.” (underlining for emphasis).
As now admitted in the case in hand, there is no appeal pending in this Court in fulfillment of S. 219 of the Constitution of Federal Republic of Nigeria, 1979 which vests in this Court to the exclusion of any other court of law in Nigeria, to hear and determine appeals from the High Court amongst other courts enumerated in the section. It therefore goes without saying on the above authorities that invocation of inherent power to fill the vacuum of lack of jurisdiction cannot hold in as much as S.6 of the Constitution of Federal Republic of Nigeria, 1979 which deals with inherent jurisdiction is only of assistance where there is a valid exercise of jurisdiction and in the absence of which my order as the one in question given in pursuance will be deemed to have been given in VACUO and therefore NULL AND VOID.
Conversely, it would have for instance been otherwise if there has been an appeal to this Court probably by the State against a respondent’s acquittal at the High Court and there is an application of this nature making for release of an exhibit (vehicle) or to stay further proceedings in the case, the power to release the exhibit upon any terms that may be imposed or to stay further proceedings where the interest of justice demands it, is inherent in any court of record in order to render the right of appeal more effective.
I think the only use that the inherent power of the Court can effectively serve in the present instance is merely to employ it to declare our said order made ex parte on 26/5/93 and stated supra NULL AND VOID and no more, the order having been made in VACUO. As stated in Chief Kofi Forfia v. Barime Ewebena Anifah (1958) 1 ALL ER P.289 at p.290. Mr. L.M.D. De Silva delivering his opinion in the Privy Council stated inter alia-
“A Court has the inherent power to set aside its judgment which it had delivered without jurisdiction. Lord Green M.R. in Craig v. Kanseen (1943) 1 ALL ER 108 at 113 after referring to several decisions had said”-
“Those cases appear to me to establish that an order which can properly be described as a nullity is something which the person affected by it is entitled or debito justitiae to have set aside. So far as the procedure for having it set aside is concerned, it seems to me that the court in its inherent jurisdiction can set aside its own order; and that an appeal from the order is not necessary.”
In Agents v. Tawia (1949) W.N. 40 (referred to at p.40 of Privy Council Digest by Olisa Chukura) it was held-
“If it appeared to an appellate court that an order against which an appeal was brought had been made without jurisdiction it could never be too late to admit and give effect to the plea that the order was a nullity.”
In the circumstance, nothing now remains than to set aside our order of 26/5/93 directing that the Chief Registrar High Court of Justice Birnin Kebbi (a) place the appellant’s appeal before the appropriate court for determination; (b) recover the Peugeot 404 Pick-up van and release same to the applicant (Abdullahi Abubakar) immediately as already stated above a NULLITY AND IT IS ACCORDINGLY SO DECLARED.
The application for discharge of our said order in this 2nd action having succeeded, the applicant’s application (Abdullahi Abubakar) in the 1st motion for an order committing Alhaji Ibrahim Mai’ahu to prison for contempt of court for flouting our order of 26/5/93 now vacated is ACCORDINGLY STRUCK OUT with N500.00 costs to the respondent Alhaji Ibrahim Mai’ahu in the 1st motion.
Other Citations: (1993)LCN/0166(CA)
