Alhaji Idrisu & Ors. V. Commissioner of Police (2008)
LawGlobal-Hub Lead Judgment Report
ABDU ABOKI, J.C.A.
This is an Appeal against the decision of the High Court of Justice, Minna, sitting in its appellate jurisdiction delivered on 26th April 2006 per Coram: J.N. Ndajiwo CJ. and C.T. Auta J.
The brief facts of the case are that the Appellants were convicted by the Magistrate Court, Doko, Niger Stale for offences contrary to Sections 136(b) and 265 of the Penal Code and sentenced to seven months imprisonment without an option of fine.
The Appellants filed an appeal to the High Court of Justice Minna, in its appellate jurisdiction against the ruling of the Magistrate Court, Doko. They also sought the leave of the High Court, sitting at New Bussa Niger State, to apply for a writ of certiorari against the proceedings of the Magistrate Court.
The High Court of Justice, New Bussa, granted the Appellants leave and suspended the committal warrant issued by the Magistrate Court, Doko and further ordered the release of the Appellants from prison custody pending the hearing and determination of the substantive application for an order of certiorari.
The Appellants as a result of this development formally applied to discontinue the appeal pending before the Appellate Division of the Niger State High Court of Justice, Minna.
In their ruling delivered on 26th April 2006 the learned Judges granted the application to discontinue the Appeal, and went further to reinstate the conviction and sentence of the Appellants which had been suspended by an order of the High Court of Justice, New Bussa. This Appeal is against that part of the ruling.
The Appellants distilled two issues for determination from the two Grounds of Appeal contained in their Joint Notice of Appeal.
The issues read as follows:
“1. In considering all application for discontinuance of the appeal before it, whether the learned Court below was right to reinstate the conviction and sentence of the Appellants when same was not in issue before it.
- Whether the Court below has appellate jurisdiction over an order made in its original jurisdiction.
Although the Respondent did not file a cross-appeal, two issues were formulated for determination on its behalf from the Grounds of Appeal as follows:
“1. Whether the discharge of the order made by the High Court New Bussa granting leave to apply for an order of certiorari and that suspending the committal warrant by the lower Court was validly done when it is not prayed or applied for.
- Whether it amounts to sitting on Appeal when the lower Court set aside the interim orders granting leave to apply for an order of certiorari and another order suspending the committal warrant by the Court of coordinate jurisdiction.”
The two sets of issues formulated by parties to this Appeal are identical in content. I however prefer the issues as formulated by the Appellants and same are adopted for the determination of this Appeal.
Learned Counsel for the Appellants argued that the sole issue before the learned Judges of the High Court, Minna sitting in an appellate jurisdiction in the case, was the consideration of an application for discontinuance of the Appeal before it. Learned Counsel contended that the learned Judges suo motu reinstated the conviction and sentences imposed on the Appellants by the Magistrate Court, Doko when same was neither raised nor canvassed before them.
Learned Counsel for the Appellants submitted that the lower Court erred in Law when it yielded to the temptation to ask and answer questions which were not in issue before it and in respect of which the parties were not given an opportunity to address the Court. He submitted that the law is that when an issue is not placed before the Court, it should not determine it, no matter how tempting or expedient, and he referred the Court to the eases of:
State v. Oladimeji (2003) 14 NWLR Pt. 839 page 57 at 61-62
Likita v. C.O.P. (2002) 1 NWLR Pt. 777 page 145 at 148
Learned Counsel respectfully submitted that the learned Judges of the High Court of Justice Minna ought to have confined themselves to the sole issue of determining the application for discontinuance, and that it was not necessary to consider the issue of the conviction and sentence of the Appellants. He maintained that the parties ought to have been given an opportunity to address the Court on the issue. Learned Counsel submitted that it is well settled that Judgment or order given by a Court when the parties have not been heard is a nullity. He referred the Court to the case of Re: Nwude (1993) 3 NWLR Pt. 282 page 492 at 497.
Learned Counsel for the Appellants argued that having failed to do this, it is their submission that the Appellants’ Fundamental Human Rights to fair hearing have been breached. He urged the Court to decide this issue in favour of the Appellants.
In response to the argument of the Appellants on the first issue, it has been submitted on behalf of the Respondent that the word “consider” according to the New Lexicon Webster’s Dictionary means, to ponder, think out, weigh the advantages and disadvantages of access before reaching a decision etc.
He argued that when the Appellants Counsel used the word “consider”, it has this grammatical meanings in mind, and that if that is the case then the lower Court has acted properly when considering the “Lacuna” that is created by the abated application for order of certiorari and that the Court properly made a consequential order discharging the orders made by the Court of coordinate jurisdiction in view of the said application.
Learned Counsel referred the Court to the cases of:
Wemabod Estate Ltd. v. Joy Land Limited (2001) 18 NWLR Pt. 744 page 22; Chief Francis Owupele and 9 others v. Chief Edward Jim OgboJo and 5 others (2003) 4 FNR 15 on the procedure for an application for an order of Certiorari which he said is commenced by an application ex-parte for leave as a matter of course. He argued that it is the cumulative effect of the action of the Appellants, by abetting the application for order of certiorari to be heard on 12th October 2005, and filing of Notice of discontinuance that led the lower Court to give the consequential order that reinstated the conviction and sentence of the Appellants when same was not applied or prayed for. He referred the Court to the case of Chief A.O. Ainu v. Alhaji (Chief) Amina A. Abiodun & Anor (2005) 10 NWLR Pt. 933 page 375 where it was held that a High Court Judge has jurisdiction to set aside the Judgment of a Judge of coordinate jurisdiction, and that the Court had jurisdiction to so act.
In the case of Senator I.G. Abana v. Chief Ben Obi & 4 others (2005) 6 NWLR Pt. 920 page 1, where the Court of Appeal enumerated the 5 conditions upon which a Court will set aside its Judgment.
He submitted that a situation where the application for leave for an order of certiorari would be taken or used as the order itself would definitely deprive the “decision or judgment of the character of legitimate adjudication”.
In the present case, as can be gleaned from the ruling of the lower Court, the Appellants after obtaining an order for leave to apply for certiorari and were subsequently released from prison custody upon the suspension of their conviction by the High Court, New Bussa, failed to pursue the final application for the order of certiorari. The High Court Minna said on the situation at page 1 lines 5-16 thus:
“However instead of the Applicants/Appellants to take steps to pursue the appeal they went to High Court, New Bussa and sought of the Court to apply for a writ of certiorari against the proceedings of the learned Magistrate, Doko. The leave was granted by the Court and in the interim the Court ordered that the committal warrant issued by the Magistrate be suspended, and if they are in prison they should be released pending the determination of Motion on Notice filed before the Court. The motion was to heard on 12/10/2005.
Nevertheless the Applicants/Appellants did abandon the Motion and never came to Court to move same. The order of certiorari was accordingly abated. Now the Applicants/Appellants have come to this Court to withdraw the appeal filed by them on 28/7/2005. “(Underline mine)
It is the law that a Court has no power to entertain or sit on any matter that has been decided by a Court of coordinate jurisdiction. To do so would amount to sitting on appeal on such decision, a procedure which the law does not permit.
In the present case, the order suspending the conviction of the Applicants/Appellants and releasing them from prison custody was pending the determination of Motion on Notice filed before the New Bussa High Court.
The Applicants/Appellants willfully failed to pursue their Motion on Notice for an order of certiorari, but rather choose to abscond only to file later an application for discontinuance of the Appeal they filed. These two wrong steps taken by the Applicants/Appellants are unlawful and fraudulent attempts contrived to avoid serving their prison term and to escape from justice.
The order of the High Court, Bida releasing them from prison which is subject to the determination of their application on Notice could be said to have lapsed and became ineffective when they absconded and failed to pursue their application on Notice for the order of certiorari. The order of the High Court, Minna that the Applicants/Appellants go back to serve the various sentences imposed on them was proper and legal. The said order is a consequential order flowing directly and naturally from the order applied by the Applicants/Appellants for discontinuance of the Appeal.
A consequential order is not one merely incidental to a decision, but one necessarily flowing directly and naturally from, and inevitably consequent upon it. It must be giving effect to the judgment already given not by granting a fresh and unclaimed or unproven relief. A proper consequential order need not be claimed but a substantive order must be claimed and sustained from the facts before the Court. Before a consequential order can be granted, it must be closely related to the substantial relief claimed. See:
NDIC v. SBN Ltd. (2003) 1 NWLR Pt. 801 Page 311 at 367-368 & 386 – 387;
Broad Bank of Nigeria Ltd. v. Odjemu (2001) 12 WRN 40;
A.G. Federation v. A.I.C Ltd. (2000) 10 NWLR Pt. 675 Page 293;
Momah v. VAB Petroleum Inc. (2000) 2 SC 142;
Liman v. Mohammed (1999) 9 NWLR Pt. 617 Page 116 at 132;
Ezeonu v. Onyechi (1996) 3 NWLR Pt. 438 Page 499 at 521;
Akinbobola v. Plisson Fisko (1991) 1 NWLR Pt. 167 Page 270 at 288;
Obayaogbona v. Obazee (1972) 7 NSCC 383
It is clear from the circumstances or the present case that the action of the High Court of Justice, Minna in making a consequential order after granting the order of discontinuance of Appeal does not amount to sitting on Appeal over the decision of the High Court, Bida.
The second issue for determination is also resolved in favour of the Respondent. This Appeal lacks merit and is hereby dismissed. There will be no order as to cost.
Other Citations: (2008)LCN/2791(CA)
