➥ CASE SUMMARY OF:
The State v. Monsurat Lawal (SC. 80/2004, 15 Feb 2013)
by Branham Chima.
➥ ISSUES RAISED
Accused absent during criminal trial address stage;
Order of certiorari.
➥ CASE FACT/HISTORY
This appeal is against the judgment of the Court of Appeal, Ibadan delivered on 1 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 Magistrates’ 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 Magistrates’ 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 Magistrates’ Court resulting in their conviction were not available to the appellants in the circumstances of this case.
➥ ISSUE(S) & RESOLUTION(S)
I. 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?
RESOLUTION: ORDER OF CERTIORARI WAS GRANTED; HIGH COURT AND COURT OF APPEAL DECISION IS QUASHED (Certiorari was available to challenge the inferior court’s decision.)
[THE SENIOR MAGISTRATE OUGHT NOT TO PROCEED WITH THE TRIAL OF THE ACCUSED WHEN ONE OF THEM WAS ABSENT
‘In the case at hand, with regard to the errors of law on the face of the record of the inferior court or tribunal, it is quite clear from the proceedings of the trial Senior Magistrates’ Court of 14 June 1999 at page 21 of the record of appeal that the 1st respondent Senior Magistrate 1 recorded the 1st accused person absent while 2nd, 3rd and 4th accused persons were present. As all the 4 accused persons were jointly charged particularly in the charge of conspiracy and were being jointly tried, the 1st respondent ought not to have proceeded with the trial in the absence of 1st accused person even though the hearing of that day was for address. The law is trite that addresses by parties or their learned counsel are an integral part of the hearing or trial of the accused person: Obodo v. Olomu (1987) 3 NWLR (Pt. 59) 111. Proceeding with the trial of the accused persons in the absence of one of them therefore, had constituted a serious breach of the criminal procedure law of Oyo State which requires the presence of an accused person in court throughout his trial in the absence of any necessary allowable reasons in law to keep him out of court for public safety.’
‘In any case, the very fact that the 1st appellant and the 3rd appellant were absent in their joint trial in court on 14 June 1999 when the inferior court was addressed and 18 April 2000 when the inferior court delivered its judgment, this exercise of allowing the trial to proceed in the absence of some of the accused persons being jointly tried had rendered the entire proceedings of that court including the judgment a complete nullity for not only denial of fair hearing under section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 but also for failure of that court to give the affected appellants even a hearing that may not be called a fair hearing: Godpower Asakitikpi v. The State (1993) 5 NWLR (Pt. 296) 641 at 657.’]
‘Accordingly, this appeal shall be and is hereby allowed. The ruling of the High Court of Justice of Oyo State dismissing the applicants/appellants application which was affirmed on appeal by the Court of Appeal, Ibadan Division in its judgment of 1 July 2003, is hereby set aside and replaced with an order granting the order of certiorari and quashing the proceedings of the trial of the appellants including the judgment of the 1st respondent the Senior Magistrate 1 in suit No. MI/944C/98. The 3rd relief of discharge and acquittal of the appellants cannot be granted after quashing the entire proceedings of the inferior court. That relief which is no longer available is hereby refused.’
➥ FURTHER DICTA:
⦿ CERTIORARI ENABLES THE HIGH COURT ACT AS WATCH DOGS OVER INFERIOR COURTS
The law is well settled that the prerogative writ of certiorari is available under the Constitution of the Federal Republic of Nigeria, 1999 in section 272(2) and the various State High Court laws and the State High Court (Civil Procedure) Rules to empower the various High Courts to act as watch dogs over judicial activities of inferior courts or tribunals. The process is meant to provide a supervisory process to keep in check the excesses and arbitrariness of such courts. Denning L. J. (as he then was) precisely put it in Rex v. Northumberland Compensation Appeal Tribunal Ex-parte Shaw (1952) 1 KB 338 at 346-347 thus: “The court of king’s bench has inherent jurisdiction to control all inferior tribunals, not in an appellate capacity, but in a supervisory capacity…This control extends not only to seeing that inferior tribunals keep within jurisdiction, but alsoto seeing that they observe the law. The control is exercised by means of a power to quash any determination…which on the face of it offends against the law.” — M. Mohammed JSC.
⦿ A PERSON CAN APPLY FOR ORDER OF CERTIORARI EVEN IF HE HAS A RIGHT OF APPEAL
In other words, once grounds for bringing application for order of certiorari exists, a person aggrieved by the decision or order of an inferior court or tribunal can apply for an order of certiorari to issue, even though he has a right of appeal also against the order or decision. With the statutory provisions also on the ground, there is no doubt whatsoever that the High Court of Justice of Oyo State before which the appellants filed their application by prerogative writ of certiorari asking that court to quash the entire proceedings of the 1st respondent’s Senior Magistrates’ Court culminating in the undated judgment convicting them of the offences of conspiracy, assault occasioning grievous harm and malicious damage, has jurisdiction to entertain their case. — M. Mohammed JSC.
⦿ THE HIGH COURT HAS UNFETTERED POWERS TO CONTROL INFERIOR COURTS VIA CERTIORARI
Queen v. District Officer and Anor. (Ex-parte Eti Atem) (1961)All NLR 55 (Reprint) where Ademola, CJF (of the blessed memory) put it pointedly thus at page 58: “Now it is clear that it is of the utmost importance that the court should act to prevent an injustice being done when the remedy sought is within its powers to grant. This to my mind, is one of such matters in which the court should act. The High Court has an inherent powers, unfettered by statute, to control inferior tribunals in a supervisory capacity. Such control is by means of certiorari to keep the inferior tribunal within the law, within bounds and within such jurisdiction as the legislature deemed fit to confer upon it.” See also the case of Agwuegbo v. Kagoma (2000) FWLR (Pt. 19) 511, (2000) 14 NWLR (Pt. 687) 252 at 269, a judgment of the Court of Appeal, Kaduna Division in which I affirmed the order of certiorari issued by the High Court of Justice of Kaduna State quashing the proceedings, judgment conviction and sentence and other orders made by the Kaduna Rent Tribunal. — M. Mohammed JSC.
⦿ IT IS A SERIOUS ERROR IN LAW TO RECORD AN ALLOCUTUS FOR AN ACCUSED PERSON WHO WAS NOT PRESENT DURING THE TRIAL
In this regard in my view, a more serious error of law committed by the 1st respondent is at page 35 of the record where 1st respondent after finding all accused persons guilty of counts 1, 2 and 3 in the absence of the 3rd accused person, proceeded as follows: “Previous conviction: Nil Allocutus: Accused persons pleaded for leniency.” Certainly, for the 1st respondent to attribute a plea of leniency to the 3rd accused person who was absent in court on the day the judgment was delivered, may call into question the status of the proceedings of the court of that day as to whether or not such proceedings can qualify as judicial proceedings of a court of law. In other words, by refusing to record the absence of the 3rd accused person but recording what the absent 3rd accused person did not say in court that day, had in my view, constituted a serious error of law on the face of the record of that inferior court to justify the removal of the entire proceedings of that court to the High Court by certiorari order to be quashed by the High Court as sought by the appellants in their application in exercise of the supervisory powers of the High Court. — M. Mohammed JSC.
⦿ ONLY EXCEPTION FOR WHEN AN ACCUSED MAY BE ABSENT FROM HIS TRIAL
In any case, the very fact that the 1st appellant and the 3rd appellant were absent in their joint trial in court on 14 June 1999 when the inferior court was addressed and 18 April 2000 when the inferior court delivered its judgment, this exercise of allowing the trial to proceed in the absence of some of the accused persons being jointly tried had rendered the entire proceedings of that court including the judgment a complete nullity for not only denial of fair hearing under section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 but also for failure of that court to give the affected appellants even a hearing that may not be called a fair hearing: Godpower Asakitikpi v. The State (1993) 5 NWLR (Pt. 296) 641 at 657. — M. Mohammed JSC.
⦿ CERTIORARI IS USED TO CHECK THE EXCESSES OF INFERIOR COURTS
The prerogative writ of certiorari process is meant to provide a supervisory process or measure to check the excesses, arbitrariness of inferior courts or tribunals: Rex v. Northumberland Compensation Appeal Tribunal Ex-parte Shaw (1952) 1 KB 338 at 346 347. This decision of the English court was considered and applied in Oduwole v. Famakinwa (1990) 4 NWLR (Pt. 143) 239 at 251. See further the cases of Queen v. District Officer (Ex-parte Eti Atem) (1961) All NLR 55 (Reprint); Agwuegbo v. Kagoma (2000) FWLR (Pt. 19) 511, (2000) 14 NWLR (Pt. 687) 252 at 269. The certiorari procedure is available under section 272(1) and (2) of the Constitution of the Federal Republic of Nigeria, 1999 and various State High Court Laws and High Court (Civil Procedure) Rules. This powers of control of inferior courts or tribunals by the High Court is exercised by A means of quashing any decision of an inferior court which on the face of it is excessive, arbitrary or oppressive. — Galadima JSC
⦿ FOUR CONDITIONS, ON ANY, ORDER OF CERTIORARI MAY BE GRANTED
De Smith, the learned author of “Judicial Review of Administrative Action” 4th Edition at pages 396-407 thereof listed four conditions on any one of which the order of certiorari may be granted. The four conditions are: 1. Lack of jurisdiction. 2. Breach of rules of natural justice. 3. Error of law on the face of the records, and 4. Decision obtained by fraud or collusion. — Ngwuta JSC
⦿ A MAGISTRATE COURT IS ESTABLISHED UNDER THE CONSTITUTION
A distinction has to be drawn between a court established directly by the Constitution and a court established under the Constitution. The Magistrates’ Courts belong to the latter category. Magistrates’ Courts are established pursuant to powers donated to the states by the Constitution. See section 4(6) of the Constitution of the Federal Republic of Nigeria, 1999, as altered which provides: S. 4(6): “The legislative powers of a State of the Federation shall be vested in the House of Assembly of the State.” The Magistrates’ Court Law of Oyo State which created or established the Magistrates’ Court as conceded by learned counsel for the respondent is a law made pursuant to section 4(6) of the Constitution. The Magistrates’ Court is established under the Constitution and is therefore subject to section 294(1) of the Constitution. — Ngwuta JSC.
⦿ MAGISTRATE COURT IS TO DELIVER JUDGEMENT WITHIN TIMEFRAME SET BY THE CONSTITUTION
In any case, section 294(1) of the Constitution is intended to ensure that a court delivers its judgment before the lapse of human memory. Those who preside over the Magistrates’ Court have no claim to better and longer memory than the Judges of Superior Courts, nor can there be a double standard of justice delivery, one in the lower and the other in the High Courts. — Ngwuta JSC.
The State v. Monsurat Lawal Kazeem Alimi Saidi Bello Akeem Lawal
Senior Magistrate Grade II Mr. B.O. Quadri Of Magistrates’ Court 4 Ibadan
Commissioner of Police Oyo State
➥ LEAD JUDGEMENT DELIVERED BY:
Mahmud Mohammed JSC
⦿ FOR THE APPELLANT(S)
⦿ FOR THE RESPONDENT(S)
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)