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.