Rev. Elijah Oboroh V. Patrick N.d. Oghuvwu & Anor (1999)

LawGlobal-Hub Lead Judgment Report

AKINTAN, J.C.A. 

The appellant and the first respondent were members of First Christ Apostolic Church Mission. But due to a dispute within that church, there was a split among the members as a result of which the appellant and the first respondent were in different camps. The appellant’s faction is known as First Christ Apostolic Church Mission while the other faction which the first respondent was a member is known as Christ Apostolic Church.

As a result of the raging dispute between the factions, the appellant lodged a report with the police at Agbarho Police Station. The first respondent and two members of his faction were arraigned before the Agbarho Senior Magistrate’s Court presided over by the 2nd respondent, Mrs. Ogene, a Senior Magistrate Grade I. The charges preferred against them are that of conspiracy and stealing of some properties of the church. The criminal trial was before the 2nd respondent. At the close of the case for the prosecution, a no case submission was made by learned counsel for the accused persons. The learned trial Senior Magistrate (now 2nd respondent) upheld the submissions in her ruling delivered on 16/9/92. The accused persons were accordingly discharged.

The learned Senior Magistrate there and then made the following order before she rose on that day:

“I therefore order the release of the said properties, Exhibits G.H-H2, J, K-K1, L, L1 and M to 1st C.A.C. to the complainants until such a time as when the properties will be shared (may be by the order of the High Court). Order is to be carried out forthwith.”

The 1st respondent was dissatisfied with the above order made by the learned Senior Magistrate in respect of the church properties tendered as exhibits during the afore-mentioned criminal trial. He therefore applied to the Ughelli High Court for an order of certiorari to quash that order of the learned Senior Magistrate releasing the exhibits in question. The matter came up before Onoriobe. J., sitting at Ughelli High Court, Delta State, as Suit No. UHC/M/14/92. The President and Commander-in-Chief of the Armed Forces of the Federal Republic of Nigeria was named as the complainant on the application. Mrs. Ogene, the Senior Magistrate was named as the respondent while the present 1st respondent was named as the complainant in the application. The application was ex-parte and as such the present appellant was not put on notice.

The learned judge after hearing submission from the applicant’s counsel, granted the application in his ruling delivered on 24/11/92. The learned judge gave his reason for granting the request, inter-alia, as follows in the concluding portion of his said ruling:

“Once a judge or Magistrate has pronounced judgment he is funcuts officio and any judgment reduced into writing must be looked at by Court of Appeal…

The result is that the subsequent order of the learned Senior Magistrate is made without jurisdiction and it is hereby set aside and quashed.”

The appellant was dissatisfied with the order of the learned judge. He therefore filed a motion on notice in which he prayed the court for an order setting aside the order made by Onoriobe, J., on the ground that the said order was made without any motion on notice and as such made without jurisdiction. It was contended that the order was therefore a nullity. The motion was supported by affidavit evidence and it thereafter came up for heaiing before Akpomudjere, J., also sitting at Ughelli High Court and given Suit No. UHC/M/23/92. The learned judge after hearing counsel for the parties delivered his ruling on 16/9/93. He refused to grant the prayer sought in the motion. He accordingly dismissed the motion and affirmed the earlier ruling of Onoriobe, J.

The present appeal is against the ruling of Akpomudjere, J., refusing to set aside the earlier order made by Onoriobe, J. One original ground of appeal was filed against the ruling. But with leave of this court, three additional grounds were added. The appellant and 1st respondent filed a brief each in this court. No brief was filed by the 2nd respondent. The appellant formulated the following three issues in his brief:

i. Whether the learned trial judge was justified in dismissing the appellant’s motion to set aside the order of Honourable Justice W.A.O. Onoriobe made prematurely, ultra vires and without jurisdiction in breach of Order 43 rule 5(3) High Court (Civil Procedure) Rules 1988 of former Bendel State applicable in the Delta State of Nigeria.

ii. Whether the learned trial judge was right in sitting as an appellate court over his own earlier ruling/order dated 19th January, 1993 and thereby over-ruling himself and purportedly altering the effect of his earlier order of 19/1/93 in his later ruling dated 16th September, 1993.

iii. Whether the learned trial judge was right in holding that the order of the Senior Magistrate Grade I dated 16th September, 1992, ordering the release of exhibits to the owner after discharging the accused persons in charge No. MOA/45C/92, following a no case submission which Honourable Justice W.A.O. Onoriobe quashed without jurisdiction because the magistrate was allegedly functus officio, was in fact so, and hence a nullity.”