Chief Kenneth C. Ariolu V. Godwill Ariolu Ors (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

TIJJANI ABDULLAHI J. C. A. (Delivering the leading judgment)

This is an appeal against the ruling of the High court of Justice sitting at Port Harcourt Judicial division, Coram Alex W. Jumbo delivered on the 27th of September, 2OO4, wherein the order to quash the decision of the Obio Magistrate court was granted. The learned trial judge held inter alia thus:

“In view of the foregoing, this application succeeds and I order as follows:

1. The proceedings, rulings and or orders of the Obio Magistrate Court, Rumuogba, Port Harcourt, presided over and delivered by senior Magistrate J.M.J. Elenwo Esq. on 3rd November, 2003 in suit No. MCR/2R/2003 Chief Kenneth C. Ariolu v. Godwill Ariolu and MCR/3R/2003 Chief Kenneth C. Ariolu Vs Evelyn Aginwa are hereby qashed.
2. The 1st Respondent is hereby restrained either by himself, agents or privies from harassing or preventing the applicants from peacefully occupying their accommodation at No.1 Ariolu Drive, Oginigba, in Obio/Akpor Local Government Area Rivers State.

3…

4. That is the ruling of this Court”.

Dissatisfied with the ruling stated supra, the Appellant who was the Respondent in, that court, approached this court and filed a notice of appeal which carries four grounds on 28th day of September, 2004, from which they distilled four issues for determination in his appellant’s brief of argument dated 3rd of February, 2005, and filed the same date. The issues for determination are as follows:

“1. Whether the Learned Trial Judge was right to have decided that the filing of originating summons before leave was obtained and the use of originating summons for judicial review does not nullify the proceedings for certiorari (This issue is distilled from grounds 2 and 3 of the grounds of appeal).

2. Whether the learned Trial judge was right to have held that there was breach of fundamental right to fair hearing with respect to the adoption of customary Arbitration report as judgment of the Magistrate Court (This issue is distilled from ground 4 of the grounds of Appeal).
3. Whether the application for certiorari by the 1st set of Respondent does not rob the Learned Trial Judge of jurisdiction especially when there exist a Notice of Appeal and motion for stay of execution, which constitutes an abuse of Court process. (This, issue is distilled from grounds 3 of the grounds of Appeal).
4. Whether the Learned Trial Judge can in Law restrain an already completed act (This issue is distilled from grounds of the Grounds of Appeal).

The 1st set of Respondents in their brief dated 22nd day of March, 2005 and filed on the 30th March, 2005 did not formulate any issue for determination but adopted the issues formulated by the Appellant as theirs, The 2nd set of Respondent did not file any brief in this appeal. The 2nd set of Respondent, needless to say is J.M.J Elenwo, senior Magistrate, Obio Magisterial District whose decision was quashed by the lower court.

On the 12th day of January, 2010 when the appeal came before us for hearing, learned counsel adopted their briefs of argument. Learned counsel for the Appellant Dr. Amuda Kanike urged us to allow the appeal whilst B.F. Omidina urged us to dismiss the appeal as lacking in merit and affirm the ruling of the trial Court.

Arguing issue No.1 on whether the trial judge was right to have decided that the filing of originating summons before leave was obtained and the use of originating summons for judicial review does not nullify the proceedings for certiorari Learned counsel for the Appellant submitted that the trial Judge was not right to have decided that the filing of originating summons before leave was obtained and the use of originating summons for judicial review did not nullify the proceedings for certiorari.

Learned counsel further argued that even the learned trial Judge agreed that the application for certiorari was filed before leave was granted contrary to order 43 Rule 3(1) of the Rules of the High Court and that the application ought not to have been by way of originating summons but held that the issue of non-compliance is a mere irregularity of which cannot nullify the proceedings.

It is the submission of the learned counsel that the case of ATTORNEY GENERAL OF BENDEL STATE VS. ATTORNEY GENERAL OF THE FEDERATION (1982) 3 NCLR page 1 at 16 relied upon by the learned trial judge is inapplicable to the case in hand in that in the said case, it was held that “Particularly where such objections are curable.” Learned counsel contended that the objection in this case is incurable because leave must be obtained first before an application for certiorari could be filed” It is also his contention that originating summons is not what to be used except during vacation as stated in order 43 Rule (1) of the High Court (Civil Procedure) Rules, 1987.

It is the submission of the learned counsel that the apex court has said in a number of cases that the rules of court are not made for fun and that it is essential that they must be obeyed by parties in all case.

Learned counsel urged us to resolve this issue in favour of the Appellant.

On the other hand, learned counsel for the 1st set of Respondents submitted that, the learned trial judge was right in his ruling and that the arguments preferred by the learned counsel for the appellant can be faulted on the grounds which were canvassed at the trial court.