The State Ex Parte Eze Elect Japhet O. Eke V. The Military Administrator, Imo State & Ors. (2006)

LawGlobal-Hub Lead Judgment Report

SAULAWA, J.C.A.

This is an appeal against the decision of the High Court of [mo State, Owerri Coram Ogwu-Rille, J. dated 8th December 1999 dismissing the appellant’s application for an order of certiorari. It is trite that the appeal has had a chequered historical background. As borne out by the records, the appellant had on 15/10/97 filed an ex parte application dated 02/10/97 in the lower court praying for leave … to apply for an order of certiorari to remove into the High Court for the purpose of being quashed the proceedings, recommendation and the acceptance of same by the Military Administrator of Imo State in the matter of Ezeship stool of Obinze Autonomous Community in page 28 – 29 of exhibit “A ” (the white paper).

The above relief sought by the appellant was predicated on the following grounds –

3. Grounds upon which Relief is sought.

(i) That the applicant was denied fair hearing by the 1st respondent and his appointees contrary to section 33(1), and (2) of the Constitution of the Federal Republic of Nigeria 1979. The relevant portions of exhibit “A” grossly violate the appellant’s right to fair hearing.

(ii) That the 1st respondent and his appointees exhibited gross bias against the applicant to the handling of the competing claims of the applicant and the 3rd respondent to the Obinze Ezeship stool as per exhibit “A”, the white paper.

(iii) That the 1st respondent was not competent to take unilateral actions touching on the subject matter of suit No. HOW/16/96 after pleading had been exchanged in the suit in which the applicant is the plaintiff and the 1st respondent is the defendant. The 3rd respondent herein is the 3rd defendant.

(iv) That at all times material to exhibit “A” herein suit No. HOW/16/96 was pending at the Owerri High Court. The panel and 1st respondent in that circumstance had no jurisdiction or authority to investigate, conclude and pass judgment in form of exhibit “A” when same question or issue is pending before the High Court for determination.

Consequent upon the granting of the leave sought, the appellant filed in the lower court a motion on notice (dated 20/11/97) on 25/11/97. Attached to and in support of the said motion on notice was a verifying affidavit sworn to by one Miss Stella Obiageri a litigation clerk in the chambers of the appellant’s counsel. As it would appear from the records, the appellant’s learned counsel has added at the foot of the prayers contained in the motion on notice thus – And Further Take Notice that at the heading the applicant shall rely on the affidavits and the exhibit thereto. And shall rely on the statement of particulars and grounds with this application. See page 16 of the lower court’s record at paragraphs 4 – 10.

Ironically however, apart from the verifying affidavit alluded to above, neither the said statement of particulars nor the grounds were actually annexed to the motion on notice in question. Consequent upon the conclusion of the hearing of the motion on notice in question on 25/10/99, the learned trial Judge adjourned the matter to 01/12/99 and thereafter to 08/12/99 for ruling. See page 57 – 66 of the lower court’s records. The said ruling is to the conclusive effect that

” … In the circumstances it is my view that the issue of breach of the applicants right of fair hearing and bias and the incompetence of the 1st respondent and the panel complained of by the applicant do not apply nor do they arise. In the light of the above, the application for certiorari is refused and hereby dismissed.”

Not unnaturally, the appellant being dissatisfied with the totality, of the decision of the lower court filed this appeal upon seven grounds. See pages 67 – 73 of the lower court’s records. In this court, the parties filed and exchanged their respective briefs between them. The appellant in particular formulated two issues for determination, to wit –

“1. Whether the learned trial Judge properly considered the case put forward by the appellant in the certiorari proceedings.

2. Whether the learned trial Judge was right in refusing to grant appellants application for an order of certiorari as sought.”

On the other hand, the 1st and 2nd respondents have also formulated two issues for determination which are to the effect that

“1. Whether the learned Judge considered the case as put forward by the appellant and the certiorari proceedings.