Chief G. A. Akhiwu Vs The Principal Lotteries Officer Mid-western State Of Nigeria (1969) LLJR-SC

Chief G. A. Akhiwu Vs The Principal Lotteries Officer Mid-western State Of Nigeria (1969)

LawGlobal-Hub Lead Judgment Report

UDOMA, J.S.C.

This is an application by Chief G. A. Akhiwu (hereinafter to be referred to as the applicant), who was the first defendant in Suit No. B/30/69-The Principal Lotteries Officer, Mid-Western State, Benin City vs. Chief G. A. Akhiwu and A. I. Ehiahbi-which was heard and determined in the High Court of the Mid-Western State holden at Benin City. The Principal Lotteries Officer, Mid-Western State who was plaintiff and A. I. Ehiahbi who was the 2nd defendant in the said suit hereinafter to be referred to as the 1st and 2nd respondents respectively. The claim of the 1st respondent in the High Court fell under two heads in the alternative and read as follows:-

“The plaintiff claims a declaration:-

(a) That the 1st defendant is the person entitled to the sum of £4,000 being the 1st prize of the Mid-Western State Government Lottery drawn at Benin City on the 10th July, 1969; OR IN THE ALTERNATIVE

(b) that the 2nd defendant is the person entitled to the said amount”.

In his judgment, the learned trial judge came to the conclusion that the 2nd respondent, A. 1. Ehiahbi, that is, had won the first prize of £4,000 “in the 11th draw of the Mid-Western State of Nigeria Government lottery held on 10th July, 1969”, and that he was therefore entitled to the prize. Whereupon the court ordered that the sum of £4,000 be paid out to him forthwith by the 1st respondent herein. In considering the evidence before him, the learned trial judge observed that he found the conduct of the 2nd respondent was consistent throughout with that of the real owner of exhibit ‘H’ (the winning ticket No. M083501),

While the applicant struck him as an imposter and a rogue; a man “who had to wrestle with his conscience as to whether to claim the prize won by one whom he had earlier described as a poor teacher or not”; and that “in the end the avarice in him got the better of him”. The court thereupon ordered the immediate arrest of the applicant, and also there and then granted him bail in the sum of £250 with one surety presumably, in the like sum, on condition that the applicant surrendered him-self to the office in charge of crime in the Mid-Western State police head-quarters, who after the investigation should charge the application to court. Further, the court ordered that:-

“All the exhibits in this case be impounded and released to the Nigeria Police, any appeal in this matter to the Supreme Court notwithstanding.”

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Soon thereafter, an appeal against the whole of the decision of the learned trial judge was filed by the applicant who at the same time instituted this application in this Court. The applicant seeks from this Court an order:-

“(i) staying execution and further proceedings in the above matter pending the determination of the appeal filed herein and in particular for stay of the order of the learned trial judge directing the police to prosecute the appellant;

“(ii) that the exhibits handed over to the Nigeria Police in the above matter be returned to the Registrar of the Benin High Court forthwith so that such exhibits be dealt with as required by the Rules of this Honourable Court;

(iii) for leave to substitute the Notice of Appeal dated 19th September, 1969 for the one dated 11th of September, 1969, each of which is marked exhibits ‘B1’ and ‘B2’ respectively in the Affidavit filed in support of this Motion; and

(iv) such further or other orders as this Honourable Court may deem fit to make”.

On 2nd December, 1969 when the application came up for hearing Chief F. R. A. Williams, counsel for the applicant informed the court that Mr. G. Ikomi, Senior State Counsel in the Ministry of Justice, Mid-Western State, counsel for the respondents had indicated to him that he was not opposing the application in respect of the relief claimed under items (ii) and (iii). This was readily confirmed by counsel for the respondents. Chief Williams also indicated that he was not pressing his prayer for a stay of execution of the judgment since, according to the counter-affidavit dated the 20th October, 1969, filed by the 1st respondent, the sum of £4,000 involved in the case was, in due compliance with the order of the learned trial judge, promptly paid over to the 2nd respondent on 10th September, 1969.

He however maintained his ground and pressed that the order of the learned trial judge directing the prosecution of the applicant be stayed. In support of the application for a stay of the order to prosecute the applicant, counsel submitted that the learned trial judge was not justified in ordering that the applicant be immediately arrested and prosecuted by the police; and that the exhibits in the case were wrongly ordered to be impounded and be released only to the police notwithstanding the appeal to this Court against the judgment of the learned trial judge; and that the latter part of the order contravened Order vii of the Rules of this Court. As the issues raised in this application were not contested and the relief sought not resisted and, as there is an appeal before this Court against the whole of the decision given by the learned trial judge in the case, this Court would not like to say more than to observe that the order made by the court below with respect to the exhibits, the Area Of Law of this application, would appear to have ignored completely or at least not to have had in contemplation the rules of this Court as to how exhibits should be treated in the event of an appeal and when an appeal is pending in this Court from the judgment of a judge.

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In this connection, we would content ourselves with drawing attention to Order vii, rule 18, sub-rules (i) and (5) and Rule 19 of the Rules of this Court, which are in the following terms: Order vii, Rule 18,

Sub-rule (1): “Subject as hereinafter provided, each party shall, immediately after an appeal becomes pending before the Court, deliver to the Court below all documents (being exhibits in the case or which were tendered as exhibits and rejected) which are in his custody or were produced or put in by him at the trial”.

Sub-rule (5): “All original documents delivered to the Court below under this Rule shall remain in the custody of the Court below until the record of appeal has been prepared, and shall then be forwarded with the record to the Registrar and shall remain in the custody of the Court until the determination of the appeal: Provided that the Court or Registrar may allow the return of any document to any party pending the hearing of the appeal and subjects to such conditions as it or he may impose”.

Rule 19: And “After an appeal has been entered and until it has been finally disposed of, the Court shall be seized of the whole of the proceedings as between the parties thereto, and except as may be otherwise provided in this Order, every application therein shall be made to the Court and not to the Court below, but any application may be filed in the Court below for transmission to the Court”.

It is to be hoped that judges at the conclusion of their judgments when making orders would always have recourse to the provisions of the Rules of this Court for guidance as to the limits of their powers. This Court is of the opinion that this application be granted but that the prosecution of the applicant be stayed subject to certain conditions to be imposed by this Court. The application therefore succeeds. It is granted. It is ordered:

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(1) that the prosecution of the applicant in any court whatsoever with respect to any offence arising out of the matter now before this Court be stayed pending the determination of the appeal filed before this Court in the matter or until this Court otherwise orders, on terms that the applicant be released on bail, provided that he doth within one month from this date enter into recognisance in the sum of £500 with one surety to be approved by the Registrar of this Court or of the High Court of the Mid-Western State in the event of any prosecution or intended prosecution of him for such aforesaid offence:

(2) that all exhibits impounded and released to the Nigeria Police pursuant to the order of the learned trial judge be forthwith surrendered to the Registrar of the High Court, Mid-Western State, Benin and that the said exhibits be transmitted without any delay to the Registrar of this Court for safe custody who shall thereafter made adequate copies of the said exhibits to form part of the record of proceedings already delivered to this Court at the sole expense of the applicant; and

(3) that the notice of appeal dated 19th September, 1969 be, and is hereby substituted for the notice of appeal dated 11th September, 1969 filed on behalf of the applicant. Order accordingly.


Other Citation: (1969) LCN/1638(SC)

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