ONYEMA  et. al. V. OKOGBUE et. al.

ONYEMA et. al. V. OKOGBUE et. al.


IN THE COURT OF APPEAL

OWERRI JUDICIAL DIVISION

HOLDEN AT OWERRI

ON THURSDAY THE 11TH DAY OF JUNE, 2020


APPEAL NO: CA/OW/237/2018

CITATION: CA (2020) 6 LLER 1

BEFORE THEIR LORDSHIPS:

HON. JUSTICE R. C. AGBO, JCA (Presiding)

HON. JUSTICE I. G. MBABA, JCA

HON. JUSTICE I. A. ANDENYANGTSO, JCA

 

 


BETWEEN:

1. UZODINMA ONYEMA

2. REV. HENRY ISAIAH

3. ERONDU FESTUS  

(APPELLANTS)

AND

1. HIS WORSHIP O. M. OKOGBUE

2. CHIEF MAGISTRATES COURT, OKPUALA NGWA

3. ATTORNEY GENERAL OF ABIA STATE

(RESPONDENTS)


 LEAD JUDGEMENT DELIVERED BY AGBO, P.J., JCA)


The appellants were accused persons in charge No.: MON/37C/2013 pending at the Magistrate Court, Okpuala Ngwa in Abia State. After the testimony of P.W.1, the appellant applied that the charge be struck out for incompetence (1) it involved issue of title to land which the Magistrate Court lacked the competence to adjudicate on and         (2) They were being prosecuted under the wrong law. The Magistrate obliged them on the ground that they were being prosecuted under the wrong law but expressed the opinion that they could still be properly charged under the laws of Abia State. The Police thereafter proceeded to charge the appellants in Charge No: Mon/13C/2014 under the laws of Abia State.

Unhappy with this development, the appellants approached the Abia State High Court by way of prerogative writs of Certiorari and prohibition wherein they claimed of the Respondents as follows:

“(1)  An order of Certiorari against the ruling of the Chief Magistrate Court Okpuala Ngwa presided over by His Worship O. M. Okogbue Esq. Chief Magistrate Court Okpuala Ngwa Magisterial District in Charge No: MON/37C/2013: C.P.O Vs Uzodinma Onyema & 2 Ors. for want of jurisdiction as the charge raises issue of title to law.

(2)    An Order of prohibition against the Chief Magistrate Court Okpuala Ngwa presided over by his Worship O. M. Okogbue, Chief Magistrate Court Okpuala Ngwa District in Charge No: NON/13C/2014: C. O. P. Vs. Uzodinma Onyema & 2 Ors. for want of jurisdiction on ground of real likelihood of bias.”

This process was dismissed hence this appeal to this Court.

This appeal is founded on four grounds of appeal to wit:

“1.    The learned trial Judge erred in law in refusing the application for Certiorari to quash the ruling in Charge No: MON/37C/2013 C.O.P. Vs. Uzodinma Onyema & 2 Ors when the charge raised an issue of title to land.

  1. The learned trial Judge erred in law in holding that there is no real likelihood of bias.
  2. The learned trial Judge erred in law in refusing the prohibition when the learned Chief Magistrate cannot competently and fairly try the fresh Charge No: MON/13C/2014. C.O.P. Vs. Uzodinma Onyema & 2 Ors. brought by the prosecution pursuant to the advice of the learned Chief Magistrate as the outcome of that prosecution as predictable.
  3. The learned trial Judge erred in law in countenancing the case of the state when the State filed no processes in Court against the appellant.”

The appellants filed their brief of argument on 1/11/18. They distilled two issues for determination to wit:-

  1. Whether the High Court was right to hold that the suit at the Chief Magistrate Court did not raise any issue as to title to land (Ground 1)
  2. Whether the High Court was right to hold that there was no real likelihood of bias on the part of the Chief Magistrate Court (Grounds 2 and 3).

The appellant having not raised any issue in relation to ground 4 of the Grounds of appeal, that ground is deemed abandoned. It is hereby struck out.

The Respondents adopted the issues as formulated by the appellants.

On issue 1, the appellants’ prayer is for the vacation of the ruling in Charge No: MON/37C/2013. The appellant at the Magistrate Court sought for the vacation of that charge and were obliged by the Magistrate. The whole appeal relating to that ruling is as rightly argued by the Respondents, an academic exercise. With the Magistrate Ruling, that charge had ceased to exist. This Court will not take part in any academic exercise. Issue 1 is resolved in favour of the Respondents.

Issue 2 relates to the issue of bias. When the issue of bias is raised, it is not founded on the competence of the process. It is rather founded on the personal disposition of the person conducting the trial.  It is the study of the disposition of this person that determines the possibility of the person exhibiting bias in the determination of the matter before him.      On this issue the appellants rely on Bamigdaye Vs. University of Illorin (1991) 8 NWLR (Pt.207)1, Yabugbe Vs C. O. P. (1892) 4 NWLR (Pt.234) 152 and Akinge Vs The State (1988) 7 SC (Pt. 11) 131. I agree with them. I am however hard put to it in agreeing with appellants counsel that with the pronouncement by the Magistrate who had granted the appellants’ application that the prosecution is at liberty to reprosecute under State law is conduct that raises the likely hood of bias in subsequent prosecution. Stating the position of the law as it is by a Magistrate or Judge does not mean entering the arena. This issue is also resolved against the appellant.

I have gone through the judgement of the trial Judge with a toothcomb and find no fault in it. This appeal is dismissed with N100,000.00 costs against the appellants.


MBABA, JCA: I agree.

 


ANDENYANGTSO, JCA: I agree.

 


Appearances:

David Onyeike, Esq.for the Appellants.

  1. O. Kalu, Esq. Chief State Counsel,

Ministry of Justice, Abia State for the Respondents.