In Re: Lawal

LAWGLOBAL HUB Lead Judgment Report

MAHMUD MOHAMMED, J.S.C.

This appeal is against the judgment of the Court of Appeal Ibadan delivered on 1st July, 2003 in which that Court dismissed the Appellants’ appeal against the Ruling of the High Court of Justice of Oyo State Ibadan dismissing the Appellants’ application for an order of certiorari to quash their conviction and sentence by the 1st Respondent/Respondent Senior Magistrate Court 4 Ibadan for the offences of conspiracy, malicious damages and causing grievous Bodily Harm.

From the record of appeal particularly the proceedings at the trial Senior Magistrate Court where the Appellants were tried and convicted, it is clear that the judgment of the trial court was delivered about 10 months after the addresses of the learned Counsel. It is not disputed from the record that the offences for which the Appellants were convicted were within the jurisdiction of the trial Court. The main contention between the parties in this appeal therefore is whether or not the High Court and the Court of Appeal were right in their decisions that the reliefs sought by the Appellants in their application for an order of certiorari to quash the entire proceedings of the trial Magistrate Court resulting in their conviction, were not available to the Appellants in the circumstances of this case.

In the Appellants brief of argument, the following two issues for the determination of this appeal were formulated from the 4 grounds of appeal filed on behalf of the Appellants.

“(1) Whether the learned Justices of the Court of Appeal were right in law in holding that criminal trial conducted in the absence of an accused person cannot be quashed by an order of certiorari. (Grounds 1 of Notice of Appeal).

(2) Whether the learned Justices of the Court of Appeal were right in upholding the decision of trial Court that appeal rather than an order of certiorari should be called in aid by the Appellants to challenge the decision of the 1st Respondent. (Grounds 2- 4 of the Notice of Appeal)”

In the Respondents brief of argument however, their learned counsel distilled only one issue from the 4 grounds of appeal filed by the Appellants. That issue reads –

“Whether the learned Justices of the Court of Appeal were not right to have unanimously held that the Appellants ought to have challenged the proceedings and judgment of the 1st Respondent by way of appeal rather than by prerogative writ of certiorari”

Although two issues for determination have been framed by the Appellants from the 4 grounds of appeal contained in their Notice of Appeal, the common factor in the two issues as shown in the Appellants brief is the possibility or otherwise of challenging of the decision of the 1st Respondent by an order of certiorari. This in my view makes the issue as identified in the Respondents’ brief of argument as the only real issue for determination in this appeal.

For the Appellants, their learned Counsel after quoting from the judgment of the Court below that – “A complaint on the delivery of judgment in the absence of the 3rd accused is better lodged as a ground of appeal to set aside the judgment not to quash the judgment in certiorari,” submitted that the Court below had completely failed to apply the correct principles of law governing when an order of certiorari will issue to quash judgment of an inferior court or Tribunal which that Court correctly stated in its judgment. That order may be made, argued the learned Counsel where –

(i) it is established by evidence that the inferior Court has acted in excess of its jurisdiction or,

(ii) where there is a breach of natural justice; or

(iii) where on the face of the record, there is distinct error of law.

Learned Appellants counsel supported this argument with the case of Nwaoboshi v. Military Administrator Delta state (2003) 11 N.W.L.R. (Pt. 831) 305 and stressed that based on this case alone, the court below ought to have allowed the Appellants appeal and granted the Appellants’ reliefs refused by the High Court. Learned Counsel further argued that the law is well settled that an accused person cannot be tried in his absence and that where that happened, it renders the trial a nullity. The case of Adeoye v. The State (1999) 4 S.C.N.J. 136, was cited in support of the submission; that in the instant case where at page 44 of the record the Court below confirmed that the 3rd Appellant was convicted and sentenced in absentia while at page 41 of the record the 1st Appellant was confirmed absent when the trial Senior Magistrate was addressed, the Court below ought to have allowed the Appellants’ appeal against the decision of the High court refusing their application for certiorari which ought to have been granted in exercise of the supervisory powers of the High court to keep in check excesses and arbitrariness of such inferior Courts or Tribunals. Learned counsel therefore pointed out that the Appellants resorted to find aid in an order of certiorari to quash their conviction mainly on the grounds of breach of their rights of natural justice by the 1st Respondent and errors committed by that court on the face of the record showing denial of fair hearing and likelihood of bias under sections 36 and 294 of the 1999 constitution. Relying on the cases of Edoho v. The State (2004) 5 N.W.L.R. (Pt.865) 17 at 47 and Odiba v. Azege (1998) 9 N.W.L.R. (Pt.556) 370, learned Counsel urged this Court to declare the decision of the court below affirming the decision of the High Court perverse and liable to be set aside.