MR. John Onyekwelu & Ors V. The Chief Registrar Kano State High Court & Ors (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment)

The appeal arises out of the refusal of the High Court of Justice of Kano State holden at Kano (the court below) to grant the appellants leave to apply for an order of prohibition restraining the 1st respondent’s exercise of his administrative powers to transfer a part heard case of criminal intimidation from the 2nd respondent to the 4th respondent.

Reduced to the relevant and necessary facts of the case, the appellants stood trial for the offence of criminal intimidation before the Chief Magistrate Court 7 Nomansland Kano, the 2nd respondent. The case had suffered transfer to several magistrate courts before it rested at the 2nd respondent. Evidence was taken from the prosecution witnesses.

The Investigation Police Officer (I.P.O.) was the witness left to close the case of the prosecution. It was at that stage that the 1st respondent acting on a petition brought by the police informant in the case transferred the case from the 2nd respondent to the 4th respondent without hearing the appellants on the petition.

The appellants filed an ex parte application for leave to apply for an order prohibiting the transfer of the case. The ex parte motion was argued before the court below. At the time the ex parte application was argued, the 4th respondent had not received the case file.

Also, the appellants were yet to appear before the 4th respondent at the material time. The court below refused to grant leave to the appellants on the grounds that the transfer of the case had already been effected by the 1st respondent who, according to the court below, had the powers to make the transfer.

Not satisfied with the decision of the court below, the appellants filed a notice of appeal with four (4) grounds of appeal against the said decision. In a brief of argument dated and filed on 14.6.2010, the appellants raised these issues for determination in the appeal –

“1. Whether the learned trial Judge exercised his discretion judicially and judiciously in refusing the Appellants application for LEAVE to apply for an order of prohibition restraining the 1st Respondent from giving effect to the purported order of transfer of the case pending before the 2nd Respondent to the 4th Respondent?

2. Whether the 1st Respondent is empowered under the Magistrate Courts Law Cap 89 Laws of Kano State 1991 to transfer a case pending before a Magistrate court to another court or Magistrate.”

Reliance was placed by the appellants on Order 43 rules 3 and 5 of Kano State High Court (Civil Procedure) Rules 1988 and the appellants’ affidavit evidence and statement of facts in support of the ex parte application to contend that had the court below considered the said statutory provisions vis-a-vis the ex parte application it would have granted the leave sought by the appellants to apply for an order of prohibition, as the appellants had shown both sufficient interest to launch the application and the breach of their right to fair hearing under Section 36 of the Constitution of the Federal Republic of Nigeria 1999 by the failure to afford them the opportunity to be heard before the order of transfer of the case was made by the 1st respondent; consequently, it was argued that the court below did not exercise its discretion judiciously and judicially and contrary to the Latin maxim ‘ubi jus ubi remedium’ which the court below ought to have used to remedy the wrong done the appellants, therefore this Court should interfere with the wrongful exercise of discretion by the court below citing in support the cases of C. G. (Nig.) Ltd. v. Baba (2005) All FWLR (Pt. 242) 515 at 529, Shittu v. P.A.N. Ltd. (2005) All FWLR (Pt. 253) 682 at 689.

The appellants contended on the second issue that the court below was wrong to hold that Section 32 of the Magistrate Courts Law, Kano State, 1991, (Magistrate Courts Law) empowered the 1st respondent to transfer the case from the 2nd respondent to the 4th respondent, when the 1st respondent is not a magistrate within the clear and unambiguous provision of the said Section 32 of the Magistrate Courts Law, therefore the purported transfer of the case from the 2nd respondent to the 4th respondent was null and void.

The appellants concluded that the appeal be allowed and the order of the court below set aside and an order granting leave to the appellants to apply for an order of prohibition against the transfer of the case from the 2nd respondent to the 4th respondent by the 1st respondent and, also, an order directing another learned Judge of the Kano State High Court to hear the motion on notice be entered by this court in consequence.

The respondents adopted the two issues formulated by the appellants in their joint brief of argument filed on 16.1.14., upon which they argued on the first issue that leave under Order 43 Rule 3 of the Kano State (Civil procedure) Rules 1988 is not automatic and is at the discretion of the court to refuse or grant the leave and the said discretion cannot be questioned vide the case of Ideozu v. Ochoma (2006) 25 NSCQR 451 at 454.

It was also the submission of the respondents that by Order 43 Rule 4 (1) (a) and (b) of the Kano State High Court (Civil Procedure) Rules 1988 the court below may refuse to grant leave or any relief sought in the application if in the opinion of the court below the granting of the leave would be detrimental to good administration.

The respondents further submitted that the ex parte application was filed three (3) days after the order of transfer was made by the 1st respondent therefore, the court below was right to hold that an order of prohibition cannot be granted when the thing sought to be prohibited had already happened citing in aid the cases of R. O. Minister of Health (1929) 4521 L.R. 176, Legal Practitioners Disciplinary Committee v. Fawehinmi (1985) 7 S.C. (Pt. 1) 178 and Okey v. Lagos State Government (1990) 3 NWLR (Pt. 136) 113 to illustrate that prohibition lies only where the act to be prohibited had not taken place.