ONYEKWUO V ATTORNEY GENERAL IMO STATE & ANOR

ONYEKWUO V ATTORNEY GENERAL IMO STATE & ANOR


IN THE COURT OF APPEAL
IN THE OWERRI JUDICIAL DIVISION
HOLDEN AT OWERRI

ON FRIDAY, 10TH AUGUST, 2018


Suit No: CA/OW/31/2016

CITATION:

Before Their Lordships:

MASSOUD ABDULRAHMAN OREDOLA

AYOBODE OLUJIMI LOKULO-SODIPE

ITA GEORGE MBABA


BETWEEN

ETHELBERT ONYEKWUO
(APPELLANT)

AND

ATTORNEY GENERAL IMO STATE
THE DEPUTY COMPTROLLER FEDERAL PRISONS, OWERRI
(RESPONDENTS)


PRONOUNCEMENT


A. ACTION
1. Civil Action – How a decision reached in a criminal matter cannot be set aside in a civil matter
Whether a decision reached in a criminal matter can be set aside in a civil matter

Let me also reiterate, that fundamental right enforcement proceeding is basically and essentially a civil proceeding. It is thus unheard of or unthinkable, that recourse can be had to such a proceeding, in an avowed bid to set aside, overturn, interfere, intervene, quash or tamper with a decision reached in the course of a criminal proceeding/matter. In the instant case, the trial, conviction and sentence imposed on the Appellant, which is being pilloried by the Appellant in the lower Court and this Court, arose from the said criminal trial. Both have different and distinct connotations and standards, and civil proceeding cannot be used to overturn decision(s) reached in a criminal matter.

It is rather unfortunate that the learned counsel for the Appellant, did not see reason or deem it fit to have caused an appeal to be lodged for him; against the decision of the trial Court in the criminal matter. Such an approach would have been decisive, incisive and straight forward matter. It must be restated and emphatically too, that the Appellant’s remedy (if any) does not lie in a civil matter/proceeding. This is more so, because, in a civil matter/proceeding, a conviction and sentence which arose from a criminal matter cannot be discharged or set aside on the basis of a civil proceeding in any form or shape. Appellant’s remedy lies in an appeal against the said conviction and sentence. The course of action embarked upon by the Appellant herein, is but a poor substitute for an appeal against his conviction and or sentence in question. Per OREDOLA, JCA. read in context

B. CONSTITUTIONAL LAW
2. Right to Personal Liberty – The limitation to the right to personal liberty
Whether the right to personal liberty is an absolute right

It is instructive to state that a citizen’s right to liberty is not at large, it is curtailed and limited by the provisions of the same Constitution which provided and guaranteed the same fundamental rights. One of such limitations as specified by the Constitution is when the citizen is facing a criminal trial especially when the punishment for the offence he is charged with, carries the ultimate penalty, capital punishment or life imprisonment; and a Court of competent jurisdiction so ordered that he should be kept in prison custody pending the conclusion of his trial or to serve out his term of imprisonment (if found guilty); or pending when he would be executed. See Section 35 (1)(a) (b) and (c) of the Constitution. Per OREDOLA, JCA. read in context

C. COURT
3. Court of Co-Ordinate Jurisdiction – How a Judge cannot reverse the decision of a Judge with of co-ordinate jurisdiction
Whether a Judge can reverse, vary or alter the decision or order of another Judge of co-ordinate jurisdiction

Also, I have taken time to examine the reliefs sought by the Appellant with respect to this case and I do agree with the learned trial judge that the reliefs dwell mainly and/or has major implications on the judgment of Hon. Justice U. D. Ogwurike J., of the High Court of Imo State, Owerri in Suit No. HOW/3C/1999. I also agree with the learned trial judge that pronouncing positively on, coupled with the grant of the reliefs sought by the Appellant in this case, would amount to sitting on appeal on a judgment of a Court of co-ordinate jurisdiction, and in respect of which learned trial judge lacked the power and or jurisdiction to do. See the cases of Shell Petroleum Development Co. Nig. Ltd. v. Edamkue & Ors. (2009) 14 NWLR (Pt. 1160) 1, (2009) LP LR 3048 and National Insurance Corporation of Nigeria v. Power Industrial Engineering Co. Ltd. (1990) 1 NWLR (Pt. 129) 697. The proper course of action opened to the Appellant is to appeal against his conviction and sentence to this Court and not to take out a separate action at the same Court with coordinate jurisdiction (as done in this case) in a bid to set aside his conviction and sentence. The line of action adopted by the Appellant with the filing of the instant action could be classified as a way of seeking justice through the back door, while the front door is still wide open. In the light of all that have been said above, I am of the firm viewpoint that the lower Court was right to have refused to grant the reliefs sought by the Appellant. Per OREDOLA, JCA. read in context

D. PRACTICE AND PROCEDURE
4. Academic Issues – Attitude of Courts to academic/hypothetical issues or questions

Before I conclude, let me quickly address the Appellant’s contention with regard to the opinion expressed by the learned trial judge justifying the Appellant’s sentence. It is imperative to point out that the pronouncement in that regard was clearly classified by the learned trial judge as an obiter dictum, which does not form the basis of his decision (that is, ratio decidendi) for refusing the Appellant’s application. Thus, the issue and or contention is considered by me to be an academic exercise, and I will not dissipate my precious judicial time in treating the issue. This is because, it is well established that only live issues between parties and ratio of a decision are matters to be considered in an appeal and not other extraneous matters. See the case of Saraki v. Kotoye (1992) NWLR (Pt. 264) 156. Strangely also, the Appellant’s contention in this regard was that the learned trial judge commented and/or speculated on the sentence passed on him. The Appellant is contending that the learned trial judge erred when he made comment(s) or gave reason(s) for the sentence; yet he is seeking for the order of this Court to set aside the same sentence, on the basis that it has already been spent. This to my mind is more or less approbating and reprobating at the same time. In any event, this contention/point is merely academic and accordingly discountenanced. Per OREDOLA, JCA. read in context


LEAD JUDGMENT DELIVERED BY OREDOLA, JCA


This is an appeal against the judgment of Hon. Justice F. I. Duroha-Igwe, J., of the High Court of Imo State, sitting at Owerri (hereinafter referred to as learned trial judge and lower Court, respectively), delivered on the 16th day of July, 2015 in Suit No. HOW/151/2015. The Appellant appealed against part of the decision of the lower Court, wherein the learned trial judge at the close of hearing, adopted the issues formulated by the applicant/Appellant (hereinafter referred to as the Appellant) and answered Issues A and B in the positive, but answered Issue C in the negative and thereby refused to grant the reliefs sought by the applicant/Appellant (hereinafter referred to as the Appellant), seeking to quash his conviction in Suit No. HOW/3C/99 and the Appellant’s request for compensation for the breach of his fundamental rights.

The suit from where this appeal emanated was commenced by the Appellant against the Respondents/Respondents (hereinafter referred to as the Respondents) by a motion on notice dated the 9th day of April, 2015 and filed on the 22nd day of April, 2015. The Appellant by his application sought for the grant of the following reliefs:

“1. A declaration that by virtue of the provisions of Sections 34, 35, 37 and 41 of the Constitution of the Federal Republic of Nigeria, 1999 as amended, Section 395 of the CPA and articles 2, 3, 4, 5 and 6 of the African Charter on Human and Peoples Right, the applicant has served out the term of his imprisonment of 13 years with hard labour and the continued detention, remand and incarceration of the applicant in the Federal Prisons Owerri by the Respondents constitute a breach and violation of the applicant’s fundamental right to his personal liberty, freedom of movement, dignity of his human person guaranteed under the Constitution and the law afore-stated.

2. A declaration that the 13 years term of imprisonment with hard labour imposed on the applicant on the 22nd day of June 2012 by the High Court of Imo State presided over by Hon. Justice U. D. Ogwuruike J. when the said applicant has been in the prison custody for 18 years before the completion of his trial and sentence ought to have been computed to commence from the date or day on which he was earlier committed to prison custody and his term of imprisonment computed from such a day or date.

3. A declaration that the Respondents have no powers under our laws to continue to unlawfully incarcerate and unjustly imprison the applicant in their custody when he has served out the term of his imprisonment and entitled to be released.

4. A declaration that the trial of the applicant for 18 years before his conviction and sentence to 13 years with hard labour constitute a breach of his right to fair hearing within a reasonable time as provided under SS. 35(1), 36 (4) of the Constitution of the Federal Republic of Nigeria, 1999 as amended.

5. An Order of the Hon. Court releasing the applicant from the prison custody of the 2nd Respondent as having served out his terms of imprisonment of 13 years with hard labour imposed on him on the 22nd day of June, 2012 and for the breach of his fundamental right to fair hearing within a reasonable time.

6. The sum of five million Naira general damages against the Respondents for the breach of the applicant’s fundamental right to his personal liberty, freedom of movement, dignity of his human person and fair hearing within a reasonable time as enshrined under the 1999 Constitution, the African Charter and the Law.”

The application was supported by a 20 paragraph affidavit deposed to by the Appellant himself, statement of particulars, reliefs sought, the grounds upon which the reliefs were sought, an exhibit and written address.

In response to the application, the 1st Respondent filed a five paragraph affidavit and a written address. On the 7th day of July, 2015 when the application came up for hearing, the learned counsel for the parties identified and adopted their respective processes as filed. Thereafter, the learned trial judge adjourned the application for delivery of judgment. In a reserved and considered judgment, the learned trial judge gave considerations to all the pieces of affidavit evidence adduced by the parties and legal argument in support thereof. At the end of the exercise, the learned trial judge in essence refused all the reliefs being sought by the Appellant. In the main, the learned trial judge commented/observed and held as follows:

“I am afraid that by the peculiar nature of this case, I cannot accede to any of the demands of the applicant. An order of damages cannot follow because a Court of competent jurisdiction has delivered judgment. Any remedy flowing from the inordinate delay in the trial of applicant should be taken in the Court of Appeal. Learned counsel must bear in mind that the learned trial judge convicted for the lesser offence of manslaughter which carries life imprisonment. So, 18 years spent in custody and 13 years prison term put together are still less than life imprisonment. I am sure the learned trial judge had this in mind or adverted her mind to this when passing her sentence. Well that was by the way. It is none of my business. …This application partly succeeds in that I have found the inordinate delay in the trial of applicant a breach of his fundamental right to fair hearing.”

Dissatisfied with the above stated decision of the lower Court, the Appellant has now appealed to this Court, vide a notice of appeal dated the 21st day of August, 2015 and filed on the 25th day of August, 2015. The Appellant’s complaints against the said decision of the lower Court were captured within his three grounds of appeal. The grounds of appeal shorn of their particulars are reproduced below as follows:

“GROUND ONE: ERROR IN LAW

The learned trial judge erred in law when he stated thus:

“A period of 18 years from arraignment to delivery of judgment cannot be doubted that there is a delay which is intrinsically bad or inordinate and therefore constitutionally impermissible” but refused to set aside the trial/judgment and/or declare same as a nullity.”

“GROUND 2 : ERROR IN LAW

The learned trial judge erred in law when after finding as a fact that the applicant’s fundamental right under Section 33(1) and (4) was breached but failed to grant the consequential reliefs to wit the release of the applicant forthwith and payment of compensation.”

“GROUND THREE : ERROR IN LAW

The trial Court erred in law when it speculated on the reason for not computing the 18 years the applicant had spent in prison custody before his sentence for 13 years with hard labour.”

Towards the prosecution of this appeal, the record of appeal was deemed as having been properly compiled, transmitted to this Court and duly served on the parties as ordered on the 24th day of April, 2017. Thereafter, the parties filed and exchanged their respective brief of argument. The Appellant’s briefs of argument was prepared by C. O. Ejiogu Esq. and the same was filed on the 31st day of May, 2017. Also, the Appellant’s reply brief in response to the 1st Respondent’s brief of argument, was filed on the 6th day of March, 2018, but it was deemed as properly filed and served by this Court on the 20th day of June, 2018. The 1st Respondent’s brief of argument was prepared by Mrs. I.

I. Amadi, Assistant Director, Civil Litigation, Ministry of Justice, Imo State. The said 1st Respondent’s brief of argument was filed on the 24th day of October, 2017. It was deemed as properly filed and served by the order of this Court made on the 30th day of October, 2017.

Again, towards the determination of this appeal, the learned counsel for the Appellant donated two issues for resolution. The two issues are reproduced below as follows:

“(a) Whether the Court below was right in adopting and granting issues A and B having found in conclusion that the Appellant’s fundamental right as contained specifically under Section 36(4) of Constitution of the Federal Republic of Nigeria, 1999 as amended was breached in the course of his trial for the offence of murder but only to refrain from a consequential order for the release of the Appellant and compensation as expressly sought by the Appellant (nominated from grounds 1 and 2 of the grounds of appeal).

(b). Whether the Court below was right in speculating on the reason the coordinate Court that tried the Appellant for 18 years and sentenced him to 13 years with hard labour failed to discharge him on the breach of his fundamental right (nominated from ground 3 of the grounds of appeal).”

On the part of the learned counsel for the 1st Respondent, she distilled a sole issue for resolution and eventual determination of the appeal. The issue is reproduced below as follows:

“WHETHER THE LOWER COURT WAS WRONG TO HAVE REFUSED TO RELEASE THE APPLICANT FROM PRISON CUSTODY HAVING BEEN TRIED AND SENTENCED BY A COURT OF COMPETENT JURISDICTION?”

Having considered the issues formulated for resolution by learned counsel to both parties vis-à-vis the judgment appealed against, I am of the considered opinion that the issue put forward by learned counsel to the 1st Respondent is more apt and has sufficiently covered the Appellant’s issues and reliefs sought by/in this appeal. Thus, the issue donated by the 1st Respondent’s counsel is adopted for the resolution and subsequent determination of this appeal.

LEGAL ARGUMENTS ON ISSUE.

The learned counsel for the Appellant set out by arguing, that by virtue of Section 36(4) of the Constitution of Federal Republic of Nigeria, 1999 (as amended), the Appellant is entitled to have his trial conducted and concluded within reasonable time. He contended that the durational period of 18 years within which the trial lasted was unreasonable and he urged this Court to so hold. The learned Appellant’s counsel further stated, that the learned trial judge despite agreeing with the position of the Appellant that the period within which the Appellant’s trial lasted was unreasonable and amounted to a breach of the Appellant’s fundamental right to fair hearing; he failed to set aside the Appellant’s conviction and make award in damages as compensation.

The learned Appellant’s counsel maintained that Courts (including the lower Court and this Court) has a “sacred duty to guard jealously the preservation of the fundamental rights of the citizenry and to ensure that they are not in any manner whittled down or restricted.” According to the learned counsel for the Appellant, “from the facts of this case which remain unchallenged there is no doubt that the Appellant’s fundamental rights,” have been grossly violated with the unavoidable legal consequence that the Appellant is entitled to compensation and apology. He referred us to the cases of Akulega v. Benue State Civil Service & Anor. (2002) ALL FWLR (Pt. 123) 255 and Odogu v. Attorney General of the Federation (1996) 40/41 LRCN 1454. The learned counsel stated that the learned trial judge having held that the Appellant’s fundamental right was violated and the violation is inexcusable by law, damages and other consequential reliefs should follow automatically. It was thus submitted, that the “Appellant is entitled to be released unconditionally by Court below as a matter of duty but that Court refrained from performing that sacred duty.”

Also, the learned counsel for the Appellant submitted, that “once there is a breach of the fundamental rights of any person in the course of any proceeding, the result of that proceeding shall be void no matter how well conducted.” He called in aid the cases of Effiom v. State (2003) ACLR 192 and Akulega v. B. S. C. S. C, (Supra). Thus, he urged this Court “to hold that the Appellant is entitled to be released from prison custody forthwith with apology and compensation” in his favour.

In reply, the learned counsel for the 1st Respondent submitted, that the lower Court was right to have refused to order the release of the Appellant from custody, the Appellant having been tried, convicted and sentenced by a Court of competent jurisdiction. She maintained, that the lower Court being a Court of coordinate jurisdiction with the Court that convicted the Appellant, it lacked power and or jurisdiction to set aside the Appellant’s conviction. She referred us to the cases of Ogunsola v. Usman (2003) ALL FWLR (Pt. 180) 1465 at 1484 – 1485; Nworgu v. Njoku (2001) 14 NWLR (Pt. 734) 539 at 550 – 551 and Ogunyade v. Oshunkeye & Anor. (2007) 15 NWLR (Pt. 1057) 218 at 257.

The learned counsel for the 1st Respondent stated that, the option available to the Appellant against his conviction is to appeal against the said conviction and sentence at the Court of Appeal and not to have the same reviewed by a Court of coordinate jurisdiction. She supported this position with the decisions in the cases of National Insurance Corporation of Nig. V. Power Industrial Engineering Co. Ltd. (1990) 1 NWLR (Pt. 129) 697 at 707 and Shell Petroleum Development Co. Nig. Ltd. v. Chief Tigbara Edamkue & Ors. (2009) 14 NWLR (Pt. 1160) 1 at 25.

In addition, the learned counsel for the 1st Respondent argued, that granting the reliefs sought by the Appellant would be tantamount to the lower Court sitting on appeal over the decision of a Court of coordinate jurisdiction, which is not permitted by law. He referred us to the decisions in the cases of National Hospital Abuja & Ors. v. National Commission for Colleges of Education & Ors. (2014) 11 NWLR (Pt. 1418) 309 at 334 and Witt & Busch v. Dale Power Systems Plc. (2007) 17 NWLR (Pt. 1062) 1 at 25, among others.

Finally, the learned counsel for the 1st Respondent submitted, that “the right of personal liberty of a citizen of the Federal Republic of Nigeria is not absolute but can be curtailed in execution of the sentence or order of a Court in respect of a criminal offence of which he has been found guilty.” She referred us to Section 35 of the Constitution. It was thus submitted in conclusion, that one of such instances, when a citizen’s right to liberty can be lawfully tampered with is, “where a person is arrested upon a reasonable suspicion of having committed a capital offence, as in the instant case.” Thus, the learned counsel urged us to “discountenance the submission of the Appellant’s counsel that the Appellant’s right to personal liberty was infringed on.” Therefore, he urged this Court to resolve this issue in favour of the 1st Respondent.

In the Appellant’s reply brief, the learned counsel for the Appellant argued and canvassed the point, that the period of 18 years it took the 1st Respondent to conduct the trial of the Appellant for offence with which he was charged was in clear breach of the Appellant’s right to liberty and fair hearing, pursuant to Section 35 and 36 of the Constitution, respectively. He once again urged this Court to set aside the Appellant’s conviction and award him damages as compensation for the breach of the Appellant’s fundamental rights. He called in aid the cases of Garba v. State (1972) 4 S.C. 118 at 122; Ariori & Ors. v. Elemo & Ors. (1983) ALL NLR 1, among others.

Before delving into the substance of this appeal, it would be necessary to state the salient facts which culminated into this appeal. The Appellant was arrested on the 7th day of March, 1997 for causing the death of one Valentine Onyeneke. The Appellant was first arraigned on the 10th day of April, 1997 for the offence of murder and remanded in prison custody. Thereafter, he was arraigned again for murder before the High Court of Imo State, Owerri on the 29th day of November, 1997 and his plea was taken. The Appellant’s trial however became protracted and eventually judgment was delivered in Suit No. HOW/3C/1999 on the 22nd day of June, 2012, a period of more than 15 years from the period when he was first arrested. In the said judgment, he was found guilty of manslaughter and sentenced to 13 years imprisonment with hard labour. The learned trial judge in that criminal case was however silent on the issue of whether the term would be served afresh or be presumed served from the period the Appellant was already incarcerated and in the custody of the 2nd Respondent. Thus, the natural inference was that the Appellant would serve the 13 years term of imprisonment in addition to the period of his incarceration during the course of the trial.

Aggrieved by the decision of the trial Court in the criminal proceedings especially on the computation of his term of imprisonment, the Appellant thereby brought this suit wherein he sought for the order of the lower Court to declare his continuous incarceration and long period of trial unconstitutional and breach of his fundamental rights, coupled with an apology and award of damages as compensation for the alleged breach of his fundamental rights. The learned trial judge after the giving of due consideration to all the pieces of affidavit evidence adduced by the parties, found and or held that the inordinate delay with regard to the period of Appellant’s trial was a breach of the Appellant’s fundamental right to have his criminal trial conducted within reasonable time as enshrined in Section 36 (4) of the Constitution. However, the learned trial judge declined to grant the Appellant’s reliefs sought in the said suit on the basis that granting the same would amount to sitting on appeal in respect of a judgment delivered by a judge of coordinate jurisdiction. The decision and or position taken by the learned trial judge did not go down well with the Appellant, thus, he appealed against the same to this Court.

It is instructive to state that a citizen’s right to liberty is not at large, it is curtailed and limited by the provisions of the same Constitution which provided and guaranteed the same fundamental rights. One of such limitations as specified by the Constitution is when the citizen is facing a criminal trial especially when the punishment for the offence he is charged with, carries the ultimate penalty, capital punishment or life imprisonment; and a Court of competent jurisdiction so ordered that he should be kept in prison custody pending the conclusion of his trial or to serve out his term of imprisonment (if found guilty); or pending when he would be executed. See Section 35 (1) (a)(b) and (c) of the Constitution.

In the instant case, the Appellant was initially remanded pursuant to an order of a Magistrate (as stated by him). Again, that he was ordered to be kept in prison custody by the High Court of Imo State, Owerri whereat he was tried. There is no evidence laid before this Court that he applied for bail and the same was refused or that he appealed against the order committing him to prison pending his trial and the appeal went in his favour, yet the Appellant was not released. Thus, the implication of this is that the Appellant was held and kept in prison pursuant to orders of Courts of competent jurisdiction which has not been challenged or set aside.

Also, I have taken time to examine the reliefs sought by the Appellant with respect to this case and I do agree with the learned trial judge that the reliefs dwell mainly and/or has major implications on the judgment of Hon. Justice U. D. Ogwurike J., of the High Court of Imo State, Owerri in Suit No. HOW/3C/1999. I also agree with the learned trial judge that pronouncing positively on, coupled with the grant of the reliefs sought by the Appellant in this case, would amount to sitting on appeal on a judgment of a Court of co-ordinate jurisdiction, and in respect of which learned trial judge lacked the power and or jurisdiction to do. See the cases of Shell Petroleum Development Co. Nig. Ltd. v. Edamkue & Ors. (2009) 14 NWLR (Pt. 1160) 1, (2009) LPELR 3048 and National Insurance Corporation of Nigeria v. Power Industrial Engineering Co. Ltd. (1990) 1 NWLR (Pt. 129) 697.

The proper course of action opened to the Appellant is to appeal against his conviction and sentence to this Court and not to take out a separate action at the same Court with coordinate jurisdiction (as done in this case) in a bid to set aside his conviction and sentence. The line of action adopted by the Appellant with the filing of the instant action could be classified as a way of seeking justice through the back door, while the front door is still wide open. In the light of all that have been said above, I am of the firm viewpoint that the lower Court was right to have refused to grant the reliefs sought by the Appellant. Thus, the issue adopted for resolution in the determination of this appeal is resolved against the Appellant.

Before I conclude, let me quickly address the Appellant’s contention with regard to the opinion expressed by the learned trial judge justifying the Appellant’s sentence. It is imperative to point out that the pronouncement in that regard was clearly classified by the learned trial judge as an obiter dictum, which does not form the basis of his decision (that is, ratio decidendi) for refusing the Appellant’s application. Thus, the issue and or contention is considered by me to be an academic exercise, and I will not dissipate my precious judicial time in treating the issue. This is because, it is well established that only live issues between parties and ratio of a decision are matters to be considered in an appeal and not other extraneous matters. See the case of Saraki v. Kotoye (1992) NWLR (Pt. 264) 156. Strangely also, the Appellant’s contention in this regard was that the learned trial judge commented and/or speculated on the sentence passed on him. The Appellant is contending that the learned trial judge erred when he made comment(s) or gave reason(s) for the sentence; yet he is seeking for the order of this Court to set aside the same sentence, on the basis that it has already been spent. This to my mind is more or less approbating and reprobating at the same time. In any event, this contention/point is merely academic and accordingly discountenanced.

Let me also reiterate, that fundamental right enforcement proceeding is basically and essentially a civil proceeding. It is thus unheard of or unthinkable, that recourse can be had to such a proceeding, in an avowed bid to set aside, overturn, interfere, intervene, quash or tamper with a decision reached in the course of a criminal proceeding/matter. In the instant case, the trial, conviction and sentence imposed on the Appellant, which is being pilloried by the Appellant in the lower Court and this Court, arose from the said criminal trial. Both have different and distinct connotations and standards, and civil proceeding cannot be used to overturn decision(s) reached in a criminal matter.

It is rather unfortunate that the learned counsel for the Appellant, did not see reason or deem it fit to have caused an appeal to be lodged for him; against the decision of the trial Court in the criminal matter. Such an approach would have been decisive, incisive and straight forward matter. It must be restated and emphatically too, that the Appellant’s remedy (if any) does not lie in a civil matter/proceeding. This is more so, because, in a civil matter/proceeding, a conviction and sentence which arose from a criminal matter cannot be discharged or set aside on the basis of a civil proceeding in any form or shape. Appellant’s remedy lies in an appeal against the said conviction and sentence. The course of action embarked upon by the Appellant herein, is but a poor substitute for an appeal against his conviction and or sentence in question.

In the premise, the implication of resolving the sole issue formulated for resolution and the determination of this appeal against the Appellant is that this appeal is found by me to be unmeritorious and it is accordingly dismissed. Thus, the decision of the lower Court is affirmed by me. No order is made as to costs.

LOKULO-SODIPE, JCA

I agree.

MBABA, JCA

I agree.

Appearances:

M. C. Onwudiwe, Esq. For Appellant(s)

Mrs. I. I. Amadi Asst. Director Civil Litigation, Ministry of Justice, Imo State with him, Mrs. A. I. Nwamadi, State Counsel M O J., Imo State. For Respondent(s)