Christopher Ogene V. Michael Ogene & Anor. (2007)
LawGlobal-Hub Lead Judgment Report
DENTON-WEST, J.C.A.
The appellant in this appeal is contending the ruling of G.N. Mbanugo, J. of the Anambra State High Court sitting in Onitsha delivered on 19/10/2005 in suit No. O/80M/2002. The appellant was the defendant in the lower court whilst the 1st respondent was the plaintiff/respondent.
The appellant had applied under motion ex-parte and the motion was granted, which gave rise to this appeal and accordingly the appellant applied as follows:-
“(a) An order of extension of time within which to apply for leave to apply for an order of certiorari as per paragraph (B).
(b) An order granting leave to the applicant to apply for an order of certiorari to remove to the said High Court for quashing the judgment of the Customary Court, Atani in suit No. CCA/451/99 Michael Ogene v. Christopher Ogene and Anor., delivered on 29/3/2000. The said judgment of the customary court arose from claim by the respondent for interim and perpetual injunction restraining the applicant, his servants, privies, and assigns from further trespass into the disputed plot of land and N2,000.00 damages.”
When the appeal came up for hearing, the learned counsel on both sides D.M.N. Nweke of counsel to the appellant and C.C. Okaa of counsel to the respondent adopted their respective briefs and relied on same. The appellant’s brief was dated 12th day of May, 2006 and filed on 16th day of May, 2006. The appellants filed six grounds of appeal and formulated six issues for the court’s consideration. However, during the course of argument of their brief, the appellant’s counsel abandoned issue No.5 of the issues Formulated, further requested that paragraphs 4.05 – 4.06 on pages 5 – 6 of the Brief of argument relating to the issues be also abandoned. Accordingly issue 5 and all arguments, pertaining to the said issue are hereby struck out of court.
He consequently urged the court to allow the appeal and send the matter back for retrial.
Mr. Okaa of counsel to the respondent in highlighting his brief submitted that the respondent’s brief was filed on 6th day of September, 2006 and that only one issue was formulated for the court’s consideration and asked the court to dismiss the appeal.
The issues For determination as Filed by the appellant are:-
“(1) Whether the learned trial Judge was right in law when he ignored the extension of time granted to the applicant by his learned brother and ruled that the applicant was guilty of undue delay in bringing the application for certiorari.
(2) Whether in an application for certiorari, the court can close its eyes to the laid down principles as envisaged by Order 37 of the High Court Rules of Anambra State, 1988, S.74(4) Administrative Law, Cap. 5, Laws of Anambra State, 1986 and even case law, i.e. denial of fair hearing, granting a prayer not claimed, lack of jurisdiction, control of inferior courts and used even when there are other remedies open to applicant like going on appeal and maintaining a position presupposing that proceedings under certiorari is no more as the practice is even dead and only option open to a party who does not like the court trying his case is in applying to the Chief Judge/Administrative Judge for transfer to another court.
(3) Whether the applicant’s refusal to agree that the suit be tried by the customary court because of the fear he would not get justice and opting to go to magistrate’s court ipso facto amount to holding the court to ransom and contemptuous of the court.
(4) Whether it is proper in law to contend that a party must have participated fully and cooperated in proceedings before he could successfully maintain an action for certiorari as per denial of fair hearing.
(5) Whether it is in all situations that the ignorance of the law is no excuse.
(6) Whether the trial court was right not to have ruled that the customary court lacked jurisdiction to award to the plaintiff that which he did not claim thereby failing to issue certiorari to quash the said proceedings of the customary court.”
The appellant’s counsel had earlier applied to abandon issue No.5 as per his brief of argument. He had also abandoned ground one of the grounds of appeal. Therefore, ground one of the grounds of appeal having been abandoned is also hereby struck out.
The respondents have a lone issue:-
“Whether the trial Judge in the exercise of his equitable jurisdiction acted judicially and judiciously in dismissing the application.”
Issues 1, 2 & 6 of the appellant’s issue and the lone issue of the respondent being akin one to the other shall be treated under the lone issue of the respondent and accordingly issues as issues 1, 2 & 6 relate one way or other to the use of discretion and the lone issue is a question on judicious discretion of the trial court, are hereby struck out of court. This court would therefore proceed to treat the lone issue and the remaining issues 3 & 4 of the appellant, in the determination of this appeal.
The appellant counsel in his arguments submits that once a competent court makes an order that order is binding until set aside on appeal and referred the court to the case of Oba Amos Babatunde & Anor v. Simon Olatunji & Anor (2000) 2 NWLR (Pt.646) 557, (2000) 2 SCNJ 26, contending that it was wrong in law for the learned trial Judge to ignore the order of extension of time granted the appellant by his learned brother before he took over the case (see pp. 1 and 17 of the record). Appellant’s counsel, Mr. Nweke further expatiated on his brief by submitting that it is clear from the customary court judgment that the principle of fair hearing was breached and that the customary court judgment that the principle of fair hearing was breached and that the customary court was biased. He submitted that the certain documents must be present in proceedings for certiorari, which would initiate the proceedings and the order or judgment sought to be quashed and referred the court to In Re M.O. Kubeinje (1974) 1 All NLR (Reprint) (pt.II) 269: R v. Gov. of Eastern Nigeria (Exparte Okafor) 21 NLR 67: State v. President Grade A Customary Court Oyo (Ex parte Atoke) (1967) NMLR 267. He contended that where there is a breach of natural justice as in this case, certiorari may be granted instead of appeal. Certiorari can equally lie even when there are other remedies open to the applicant, since it can be granted as a matter of right (Ex debito justiciae) referring the court to the Queen v. District Officer & Ors. (Ex parte Eti Atem (1961) All NLR 51 (Reprint); Head of State v. Oguazor (Ex parte Bamgbona) (1976) 6 ECSLR page 247: The State v Falade & Ors. (1971) 2 NLR 219
He maintained that certiorari can lie even when an appeal is pending, and referred the court to section 74(4), Administrative Law, Cap. 5. Laws of Anambra State, 1988 & Re M.O. Kubeinje (1974) (Reprint).
Having abandoned paragraphs 4.05 & 4.06 of argument, he urged the court to allow the appeal. set aside the judgment and remit the case back to the customary court for retrial because the learned trial Judge failed in his duty to consider the principles envisaged in the granting or refusing the application for certiorari but instead dwelt on extraneous and irrelevant matters and secondly that qualified legal practitioners are now in charge as presidents of the various customary courts in Anambra State.
There was of course a stout opposition by the respondent who in the argument proffered in respect of their sole issue for determination to wit:
“whether the trial Judge in the exercise of his equitable jurisdiction acted judicially and judiciously in dismissing this application.”
He anchored his arguments against the appeal under three headings namely:-
(a) Whether there was undue delay?
(b) Whether the appellant’s conduct entitles him to an equitable discretion?
(c) Whether the trial Judge acted judicially and judiciously in refusing the application?
Under undue delay, he submitted that the appellant initiated the application for certiorari in the lower court, 24 months after the judgment of the customary court and cited Order 37(2) of the High Court Rules of Anambra State, 1988 and section 74 of the Administrative Law of the Anambra State, Cap. 5.
On the conduct of the appellant, the respondent counsel, Mr. Okaa submitted that the appellant was proud and unco-operative and referred the court to page 50 of the record of proceedings, line 19 – wherein the customary court described the appellant in those words and said that appellant was fond of flouting court orders. He referred the court to Odogwu v. Odogwu (1992) 2 NWLR (Pt.225) 539, (2001) 41 WRN p.1 at 21 & 28. He contended that the trial court has exercised her discretion bona fide, as the appellant has neither shown that her discretion was exercised arbitrarily or illegally.
Finally on whether the trial Judge acted judiciously and judicially in refusing the application, counsel quoted with approval the dictum of this court in the case of Lawal v. Quadri (2004) 6 NWLR (Pt. 868) 1 at 12 thus:-
“An order of certiorari is a discretionary order, issued by a court of competent jurisdiction to quash the decision of an inferior court, where it is established by evidence that the inferior court, has acted in excess of its jurisdiction, or where there is a breach of natural justice or where on the face of the record, there is a distinct error of law. Any of the above delicts by the court may create a reason for the order of certiorari to be issued, if the court so decide.”
Thereafter, he sermonized on the recalcitrant attitude exhibited by appellant before the customary court and his continuous refusal to defend himself and that since he intentionally refused to put in his defence when called upon to do so by the customary court he cannot be heard to complain of lack of fair hearing and referred the court to the following cases Newswatch Comm. Ltd. v. Atta (2006) 12 NWLR (Pt. 993) 144 at 175; Kaduna ile Ltd. v. Umar (1994) 1 NWLR (Pt. 319) P 143 at 159; Aderemi v. Adedamola Ajidahun v. Oteri Ajidahun (2000) 4 NWLR (Pt. 654) 605 at 615; Ugo v. Benue State Local Government Service Commission (1995) 3 NLWR (Pt .383) 288. On issue of jurisdiction, again he quoted and referred this court to the Supreme Court decision in The State v. Boundary Settlement Commissioner (1985) 3 NWLR (Pt. 12) 335 at page 350 thus: “It is not all errors of jurisdiction that will justify the making of an order of certiorari. While all such errors “going to the jurisdiction” can provoke an order of certiorari and the determination is a nullity, all “errors within jurisdiction” are only caught if they are errors patent on the face of the record. If the errors are within jurisdiction, the determination within jurisdiction remains effective, for the tribunal acting within jurisdiction, has jurisdiction, to be right as well as to be wrong.”
From the foregoing, it seems to me without much ado that the trial Judge was in no way biased against the appellant and must have acted judiciously and judicially in dismissing the application in accordance with the law as regards the principles applicable in the grant of the order of certiorari, or refusal thereof.
In Okachi Azuokwu v. Tasle Nwokanma & Anor. (2005) 11 NWLR (Pt.937) page 537 at 551, the Supreme Court per Kalgo. JSC (rtd) thought of bias in relation to a court or tribunal and had this to say:
“Bias in relation to a court or tribunal is an inclination or preparation or predisposition to decide a cause or matter in a certain pre-arranged way without regard to any law or rules and the likelihood of bias may be drawn or surmised from many factors such as corruption, partisanship, personal hostility, friendship, group membership or association and so on, towards or involving a pm1icular party in a case.
Also in a case where bias is being alleged against a court or Judge, it is not the real likelihood that the court or Judge could or did favour one side at the expense of the other that is important, it is that any person looking at what the court or Judge has done, will have the impression in the circumstances of the case, that there was real likelihood of bias. See Metropolitan Properties Co. Ltd. v. Lannon (1969) 1 QB 577; Olue & Ors. v. Enenwali & Ors. (1976) 2 SC 23,”
In my opinion, the trial Judge in this appeal was right in taking the view he did. It has been held by the Apex Court that Adjudicatory justice has its foundation in the concept of fair heming, as the fairness of a trial can be tested by the maxim audi alteram partem. The appellant had opportunity to defend himself and he refused. He was invited to defend himself by the customary court, but he refused and this is clearly on record, and in that wise, Mbanugo, J., in the ruling observed:
“Where a plaintiff or defendant choose to hold the court to ransom without permission from the Chief Judge, he cannot be heard to blame the court for breach of fair hearing, where he was given the opportunity to defend himself but he refused to do so without permission from the Chief Judge transferring the suit to another court. He is solely in contempt of the court and cannot complain of breach of fair hearing or natural justice.”
I have read and digested the proceedings in the lower court and also the customary court’s judgment, which the appellant was seeking for an order of certiorari to remove to the lower court for quashing the said judgment of the Customary Court. Atani. The trial Judge analytically assessed the behaviour of the appellant and came to the conclusion that:
“this application would have succeeded if the applicant had taken part in the case and had stated why he was not given fair hearing. You cannot stay outside to complain. You must participate to be able to point out where you were denied fair hearing. How then can he appeal against his refusal if he refused to answer the questions put to him by the defendants.” (Italics mine).
I have gone to great lengths to quote this succinct part of the trial Judge’s ruling because it reflects the workings of an unbiased umpire who is diagnosing the circumstances pervading in the customary court during the pendency of the proceedings that led to the judgment of the customary court now sought to be quashed by the appellant in the lower court.
Definitely, if one is to apply strictly the principles enunciated by this court in the grant or refusal of certiorari, it would be glaring that those principles were indeed adhered to and observed by the trial Judge. See A.G of the Federation v. Chief Zebohan Abule (2005) 11 NWLR 9Pt.936) page 369; Evangelist Bayo Johnson v. E.A. Lufadeju (Mrs) (Chief Magistrate Grade I) & Attorney-General of Lagos (2002) 8 NWLR (Pt.768) 192.
This court in Onyekwuluje v. Benue State Government (2005) 8 NWLR (Pt.928) page 614, held that fair hearing within the meaning of section 36(1) of the 1999 Constitution means a trial or investigation conducted according to all rules formulated to ensure that justice is done to the parties. It is an indispensable requirement of justice that an adjudicating authority to be fair and just, shall give both sides opportunity to present their case. See Olumesan v. Ogundepo (supra).
Nevertheless, where both parties are given ample opportunity and one party opts not to take the opportunity on his volition, that party cannot be heard to complain for justice is a two edged sword.
An order of certiorari is usually used to challenge a judicial or quasi-judicial act. Therefore, certiorari corrects errors of inferior tribunals and quashes erroneous decisions.
Would it have been wise or just for the trial Judge to quash this judgment of the customary court? The answer to this can be gleaned in the negative from this succinct portion of the judgment of the customary court, which I hereby reproduce:
“All court processes were duly completed. Plaintiff proved his claims beyond doubts. Plaintiff tendered the survey plan of the plot under dispute showing that his claim was on a different plot and not that owned by the defendant. The evidence of witnesses who appeared in the court corresponded and confirmed the claim of the plaintiff. The documented decisions of both Ndichie Atani and Igwe’s Advisory Committee upheld the claim of the plaintiff without contradictions. The defendant, throughout the proceedings proved very uncooperative and proud. He used to appear in court at will, and even went as far as flouting the interim injunction orders restraining him and his servants from further trespassing into the said plot of land under dispute, when he went and constructed a toilet in the said plot. After going through all the evidences and submissions made by the plaintiff and his witnesses, the court had come to the conclusion that the defendant is liable to the claim of the plaintiff.
Court order: The court hereby therefore ordered that the defendant, Mr. Christopher Ogene should with immediate effect remove all that he has on the disputed plot including the plantain plants and leave the said plot shown on survey plan No. CD/AN/D01/2000. He should do this to enable plaintiff to do his building without further delay and molestation. Furthermore, the plaintiff retains the right to live in his present apartment till he is able to build his own house and pack in. The defendant is hereby given up to 10/4/2000 to totally surrender the disputed plot as shown on survey plan No. CD/AN/D01/2000 to the plaintiff.”
Therefore reps ipsa loquitor – the facts speak for themselves. There is always a presumption of the correctness of a trial Judge’s decision on facts, a presumption which can only be displaced by a person who seeks to upset the decision if he can. In Nkado v. Obiano (1997) 5 NWLR (Pt.503) 31 at 55, (1997) 50 LRCN page 1084 at 1114, Onu, JSC delivering the lead judgment where in all their Lordships concurred, said:
“On evaluation of evidence, I wish to stress firstly, by saying that the confirmation of the concurrent findings of facts by this court of the decisions of the two courts below is compelling in the sense that it is an avowed and age-long judicial policy in this country that the evaluation of evidence called at the trial, the ascription of probative values to them and making primary findings on them, are matters within the province of the court of trial which has the singular advantage of pre-eminently placed to hear the witnesses testify and watching their demeanours. See Balogun & Ors. v. Alimi Agboola (1974) 1 All NLR (Pt. 2) 66: 77/e Military Governor of Western States v. Afolabi Laniba & Anor (1974) 1 All N.L.R. (Pt. 2) 179. For this reason, there is a presumption that a trial Judge’s decision on facts is correct – a presumption which must be displaced by a person who seeks to upset the decision if he can. An appellant court for its pan in such a case, should always be reluctant to interfere or to substitute its views of the facts for those of the court of trial. See Ajao v. Alao (1986) 5 NWLR (Pt. 45) 802 and Kponuglo v. Adja Kodaja (1933) 2 W.A.C.A. 24.”
In all fairness to the two lower courts, I think their findings had been consistent and sought to be based on the basic principles governing the exercise of a judicial discretion. See Oduba v. Houtmangracht (1997) 6 NWLR (Pt.508) [Pg 185, (1997) 5 LRCN page 1291 at page 1309 where Iguh, JSC delivering the unanimous judgment of the Apex Court in respect of the essence of discretion and how to apply same said:-
‘The rules vests in the trial court a discretion as to whether or not to order a foreign plaintiff or plaintiffs ordinarily resident out of the jurisdiction, such as the respondents in the present case, to give security for the defendant’s costs, and the amount of such security. See too Aeronave S.P.A. v. Western Charters Ltd. (1971) 1 WLR 1445. (1971) All E.R. 531. It cannot also be disputed that such discretion, like other judicial discretions must be exercised judicially and judiciously by having regard to all the circumstances of each case. See Donald Campbell & Co. v. Pollak (1927) AC 732. It must be exercised in good faith, uninfluenced by irrelevant considerations and not arbitrarily or illegally or upon a misconception of the law or under a misconception of facts. See University of Lagos & Anor. v. Aigoro (1985) 1 NWLR (Pt.1) 143, (1985) 1 SC 265 at 271, Ntukidem v. Oko (1986) 5 NWLR (Pt.45) 909; Nneji & Anor. v. Chukwu & Anor. (1988) 3 NWLR (Pt.81) 184, etc. A court’s exercise of its discretion without adverting to all the peculiar facts and circumstances of the particular case before it has been said to be as bad as its exercise upon a wrong principle. See Leonard Okere v. Titus Nlem (1992) 4 NWLR (Pt. 234) 132 per Nnaemeka-Agu, J.S.C. And if there is any miscarriage of justice in the exercise of a judicial discretion, it is within the competence of an appellate court to have it reviewed. See Odutola v. Kayode (1994) 14 LRCN 1; (1994) 2 NWLR (Pt. 324) 1; Nzeribe v. Dave Engineering Co. Ltd. (1994) 8 NWLR (Pt. 361) 124; John C. Okafor v. Bendel Newspapers Corporation (1991) 7 N.W.L.R. (Pt. 206) 651 etc.”
Once more, I reiterate that from the facts of the judgment of the lower court on issues of lack of fair hearing, undue delay and contemptible acts. I find that there is no cause for me to disturb the findings of facts in this appeal. The findings of facts by the two courts below relating to the contemptible acts of the appellant especially before the customary court obviously does not attract the intervention of the appellate court Since the appellant was not subjected to any sanction from the lower courts for those obvious acts of contempt as recorded in the proceedings giving rise to the judgment, 1 find that there was no miscarriage of justice in the exercise of judicial discretion by the courts below. See David Itauma v. Friday Jackson Akpe-Ime (2000) 12 NWLR (Pt.680) 156, (2000) 8 WRN 53. I am bound from the foregoing to resolve the lone issue
in favour of respondents. I so resolve.
The other two issues 3 & 4 for determination propped up by the appellant shall now be considered.
The refusal of the applicant to have the suit tried by the customary court because of the fear that he would not get justice and opting to go to the magistrate court ipso facto does not ordinarily amount to holding the court to ransom and contempt of court. If he had politely and courteously made his request known to the court and channeled a letter to the Chief Judge through the court, such a refusal made properly and politely through the proper channel would have not amounted to holding the court to ransom nor contemptible of the court.
After a critical study of the issues raised in the briefs of the learned counsel, which are diametrically opposed in respect of their arguments and authorities relied on. it is clear that shun of embellishments, their arguments centred on fair hearing or lack of fair hearing. It is crystal clear that all these authorities proclaim that parties to an action must be given fair hearing by a court seised with the determination of their matter.
The main grouse of the appellant raised in this issue is the fact that he is shroudcd with fear of possible injustice that could likely be his portion if he should subject himself to be tried by the customary court, may be because the said customary court as at that time was not manned by lawyers. Some people do not feel confident and relaxed appearing in our customary courts in this country. The feelings generated by these courts on some people are that of fear, intimidation, and sometimes, substandard approach to issues. This of course, would affect some litigants who promptly are skeptic and approach those courts with some form of skepticism and they become very aloof and sometimes livid towards the court and may act contemptuously knowingly or unknowingly before the court or even ex facie.
Whatever the approach of the appellant is towards the courts below, as earlier said in this judgment, the appellate court would hesitate to tamper with the findings of the lower court except where it occasions miscarriage of justice. The appellant may or may not have been genuinely afraid of the customary court hence his refusal to testify before the court. Customary law can only be established by evidence and the appellant ought to have taken the advantage of the invitation by the customary court to defend himself by evidence which he refused. In Ifabiyi .v. Adeniyi (2006) 6 WRN page 41 at 51, Onu, JSC delivering the lead judgment of the Apex Court described
customary law or native law and custom as questions of facts, which must be proved by evidence if judicial notice is not available through decided cases of superior courts. See Oduba v. Houtmangracht (supra).
However in this appeal, the finding of facts by the lower court tend not to support the above postulations that the appellant was genuinely afraid but only found his attitude is contemptible. The courts are entitled to exercise their judicial discretion, in accordance with the circumstances of the matter before them.
In the light of the foregoing, I am obliged to resolve issue 3 in favour of the respondent.
Issue 4.
Whether it is proper in law to contend that a party must have participated fully and cooperated In proceedings before he could successfully maintain an action for certiorari as per denial of fair hearing.
When treating the lone issue, I ruled that the appellant was not denied fair hearing and that the lower court acted in accordance with principles laid down in the guiding principle for grant or refusal of the order of writ of certiorari.
The contention whether a party must have participated fully and cooperated in proceedings before he could successfully maintain an action for certiorari as per denial of fair hearing may not always be correct. Depending on the circumstances of the case, a party does not have to fully cooperate in proceedings before an action for certiorari as per denial of fair hearing can be maintained. Depending on the facts and the circumstance surrounding a case, a party may refuse to participate fully nor cooperate and yet still maintain an action for certiorari as per denial affair hearing. See Lawal v. Quadri (2004) 6 NWLR (Pt. 868) 1. This court held in Lawal’s case that:
‘The scope of an order of certiorari is limited, because certiorari will not be used where there is an equally competent and effective remedy like the process of an appeal. Therefore, in exercising the discretion, a judicial officer will be judicious, and will not allow the prerogative order of certiorari to supplant the regular process of appeal to a higher court. However, where the lower court or tribunal adjudicated in excess of its jurisdiction, an aggrieved party will successfully seek an order of certiorari even though he has a right of appeal. In the instant case, the error or bias alleged were not apparent on the face of record, the complaint made need to be tendered in court and the evidence evaluated by the High Court which procedure is outside the scope of the hearing for certiorari.”
However, a party in a court who even actively participated in proceedings could still be deprived of fair hearing depending on the circumstances of the deprivation within the proceedings, and still could not be able to effect or maintain an action for certiorari as per denial of fair hearing. Therefore, the lower court may be correct and right to refuse the application for an order of certiorari when an appeal to a higher court can equally, if not more appropriately be used. See Chiagbama v. Queen (1957) SCNLR 98; Nwankwo v. Shitta-Bey (1999) 10 NWLR (Pt.621) 75; The Queen v. District Officer & Ors. (Ex parte Atem) (1961) All NLR 51; Agwuegbo v. Kagoma (2000) 14 NWLR (Pt.687) 252 referred to.
In the circumstance, I also resolve issue 4 in favour of the respondents.
Before concluding, I hereby wish to exhort the parties to sue for peace for they are both brothers and it would be desirous for them to live in peace and harmony so that they live and fight for great heights.
In conclusion, I hereby dismiss the appeal and because of consanguinity between the parties, there shall be no other as to costs.
Other Citations: (2007)LCN/2416(CA)
