Chukwuemeka N. Agwuna V. The Attorney-general Of The Federation & Anor (1995)

LAWGLOBAL HUB Lead Judgment Report

WALI, J.S.C.

This is an appeal against the unanimous decision of the Court of Appeal, Lagos in which it affirmed the ruling or the High Court. Lagos dated 23rd December, 1993 setting aside its earlier order made on 22nd October. 1993 on the ground that the said order was made without jurisdiction.

The brief facts involved in the case are as follows:-

The appellant is one of the three persons tried and convicted by the Miscellaneous Offences Tribunal. Lagos and sentenced to various terms of imprisonment. His appeal to the Special Appeal Tribunal against conviction for making a forged document was dismissed.

Since there is no further appeal from the decision of the Special Appeal Tribunal, the appellant in an effort to gain his freedom, filed in the High Court of Lagos State a Motion on Notice under Order 53 rule 3(1) of the High Court of Lagos State (Civil Procedure) Rules, 1971 with the following prayers:-

“1. An order of certiorari to remove into this Honourable Court and quash the same the decision of the Special Appeal Tribunal. Lagos date 27th May, 1993 which upheld the conviction and sentence on a count of forgery against the applicant passed by the Miscellaneous Offences Tribunal. Lagos.

2. And for such further or other order or orders as this Honourable Court may deem fit to make in the circumstances.

And further take notice that the Grounds of this application are as follows:-

1. That the Special Appeal Tribunal acted in excess of its jurisdiction.
2. That the conviction of the applicant was affirmed for an offence which he did not commit.”

The motion was dated 25th June, 1993. The learned trial Judge (Adeyinka, J.) heard the motion after which he delivered a considered ruling on 22nd October, 1993 in which he granted the application and ordered as follows:-

“It is hereby ordered as follows:-

1. An order of certiorari is hereby made and it is hereby ordered that the decision of the Special Appeal Tribunal Lagos dated 27th day of May 1993, which upheld the conviction and sentence on a count of forgery against the applicant Chukwuemeka Nnamdi Agwuna passed by the Miscellaneous Offences Tribunal Lagos be removed into this court to be quashed, and it is hereby quashed.

The applicant Chukwuemeka Nnamdi Agwuna shall be released from prison custody forthwith.”

There were attempts by the appellant to enjoy the fruits of the order granted by the High Court but which hit the rock. On application by the Attorney-General of the Federation and the Controller of Prisons, Federal Prisons Service, to the High Court to review and set aside the order of the writ of Habeas Corpus ad subjudiciendum of 14th December 1993 and directed to the Controller of Prisons, Nigerian Prison Services, on ground that it was made without jurisdiction, the same learned trial Judge considered the application, granted it, and set the writ aside in the following words:-

“The issue of jurisdiction is an exception to disobedience of court order. I refer to S. 1(8) Decree 9 of 1991 and hold that the first relief sought succeeds. It is hereby ordered as prayed.

The order of the writ of Habeas corpus ad subjudiciendum of the 14th day of December 1993 directed to the Controller of Prisons, Nigerian Prison Services is hereby set aside.”

The learned Attorney-General of the Federation and the Controller of Prisons appealed against the order of certiorari dated 22nd October, 1993 made by the learned judge while the present appellant cross-appealed against the order made by the trial Judge declining to enforce his order for the release of the appellant from prison on ground that he had no jurisdiction to do so.