ADESEUN v. FRN

CITATION: (2018) LPELR-43664(CA)

In the Court of AppealIn the Ibadan Judicial Division

Holden at Ibadan

ON FRIDAY, 2ND FEBRUARY, 2018Suit No: CA/IB/193C/2017

Before Their Lordships:

CHINWE EUGENIA IYIZOBA Justice, Court of AppealHARUNA SIMON TSAMMANI Justice, Court of AppealNONYEREM OKORONKWO Justice, Court of Appeal

BetweenSENATOR AYO ADESEUN - Appellant(s)

AndFEDERAL REPUBLIC OF NIGERIA - Respondent(s)

RATIO DECIDENDI

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1. APPEAL - INTERFERENCE WITH THEEXERCISE OF DISCRETION:Circumstance where an appellate Courtwill not interfere with the exercise ofdiscretion by a lower Court"The learned trial Judge transferred thecase hitherto pending before him in theexercise of his discretion. Certainly, thelearned trial Judge did so in theexercise of the inherent power granteda l l C o u r t s i n t h e e x e r c i s e o fadjudicatory functions by virtue ofS e c t i o n 6 ( 6 ) ( a ) o f t h e 1 9 9 9Constitution of the Federal Republic ofNigeria (as amended). So long as theCourt exercised that inherent powerjudicially and judiciously, the AppellateCourt will not interfere."Per TSAMMANI,J.C.A. (Pp. 25-26, Paras. D-A) - read incontext

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2. COURT - JURISDICTION: Importanceof ju r i sd ic t ion o f Cour t ; whatdetermines whether a court hasjurisdiction"It is trite that jurisdiction is a thresholdmatter as it goes to the competence ofthe Court to hear and determine thesuit. See: BRONIK MOTORS LTD ANDANOTHER V WEMA BANK LTD. 1983 1SCNLR P.296; OKOYA V. SANTILLI 19902 NWLR PT.131 P. 172. In the case ofMADUKOLU V NKEMDILIM 1962 1 ANLRPT.1 P.587 the Supreme Court heldthat a Court is competent to exercisejurisdiction where the Court is properlyconstituted as regards numbers andqualification of its members; thesubject matter of the case is within itsjurisdiction and there is no feature inthe case which prevents it fromexercising jurisdiction and the casecomes before the Court initiated bydue process of law and upon fulfilmentof any condition precedent to theexercise of jurisdiction." Per IYIZOBA,J.C.A. (P. 19, Paras. B-F) - read incontext

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3. PRACTICE AND PROCEDURE -TRANSFER OF CASES: Position of thelaw as regards power of a Chief Judgeto transfer a suit from one Court toanother"Transfer of cases generally, is thepreserve o f the t r ia l judge oradministratively the function of theChief Judge. The trial Court has givenvery good reasons why he could notproceed further with the case whichreasons are unassai lable." PerOKORONKWO, J.C.A. (P. 26, Paras. E-F)- read in context

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CHINWE EUGENIA IYIZOBA, J.C.A.(Delivering theLeading Judgment): This is an appeal against the Rulingof Federal High Court No 1 Ibadan in Charge No.FHC/IB/26C/2017 delivered on the 9th day of May 2017Coram Ayo-Emmanuel J. transferring a criminal chargebrought against the Appellant and 2 others to Court 2where the Appellant had a pending application forinjunction restraining the filing of charges against theAppellant.

THE FACTS: During the 2015 general elections, theAppellant and two others were among the leaders ofPeople’s Democratic Party (PDP) in Oyo State. Theyreceived the sum of N650, 000, 000.00 from a certainsource for the 2015 election expenses. The Respondentclaimed that investigation revealed that the N650, 000,000.00 was proceeds of gratification received by theFormer Minister of Petroleum Resources, Mrs DiezaniAlison-Madueke from various Oil Marketers. TheRespondent through EFCC arrested the Appellant and thetwo others and insisted that they must refund the money tothe Respondent. The Appellant refused to refund the moneyclaiming the funds came from their party and had beenlawfully expended on

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the elections. The Appellant claimed he was released from

custody of EFCC after 40 days detention but that EFCC

continued to harass and intimidate him and other leaders of

the party, threatening further arrests and prosecution.

They consequently instituted Suit No FHC/IB/CS/15/2017:

PEOPLES DEMOCRATIC PARTY & 905 ORS V (1)

ATTORNEY GENERAL OF THE FEDERATION, (2) EFCC,

(3) IBRAHIM MAGU (AG. EFCC CHAIRMAN), and (4) MR.

ROTIMI OYEDEPO claiming inter alia the following reliefs:

i. A DECLARATION that the order purportedly made by

the President and Commander in Chief of the Armed Forces

of the Federal Republic of Nigeria to the 2nd Defendant to

use all means to force the members of the Plaintiff, a

political party to pay back to the Federal Government all

monies used for the 2015 presidential Election, is

undemocratic, unconstitutional, an abuse of Presidential

and official powers and therefore null, void and of no effect.

ii. A DECLARATION that the continuous harassment,

intimidation, prosecution or threat of prosecution of the 1st

Plaintiff’s members across the country and in particular its

members in Oyo State comprising 2nd - 906

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Plaintiffs over the presidential campaign funds given to

them by the 1st Plaintiff without same treatment meted on

members of the Al l Progress ives Congress is

discriminatory, and a breach of their fundamental human

rights.

iii. A DECARATION that the demand and threat by the

2nd - 4th Defendants to refund all monies expended by the

Plaintiffs in respect of the 2015 General Election and the

threat of arrest and prosecution unless they leave the 1st

Plaintiff and join the All Progressives Congress, is

undemocratic, unconstitutional and an attempt to return

Nigeria into a dictatorship.

iv. A DECLARATION that the receipt of money from

Jonathan Campaign Organization which sum as conceded

by the 2nd Defendant is said to have been donated by

private oil companies and individuals does not constitute a

criminal offence under any law in Nigeria for which the

Plaintiffs can be arrested or prosecuted.

v. A DECLARATION that the demand by the Defendants

that Plaintiffs should refund the sum of money received

from Goodluck Jonathan Presidential Campaign

Organization and spent for the purpose of the 2015

Presidential and National Assembly Election in

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all 33 Local Governments, 350 Wards and 5,620 Units of

Oyo State is ultra vires.

vi. PERPETUAL INJUNCTION restraining the Defendants

by themselves, their servants, agents or any person

howsoever called from inviting, arresting, detaining or

charging the Plaintiffs in a Court of law in respect of

monies received from the People’s Democratic Party

and Goodluck Jonathan Campaign Organization and

other individual donors for the purpose of the 2015

Presidential Elections.

The Plaintiffs further filed a Motion on Notice dated 13th

February 2017 seeking inter alia the following:

“AN ORDER OF INTERLOCUTORY INJUNCTION

restraining the Defendants by themselves, their servants,

agents or any person howsoever called from inviting,

arresting, detaining or charging the Plaintiffs in a Court of

law in respect of monies received from Goodluck Jonathan

Campaign Organization and other individual donors for the

purpose of the 2015 Presidential Election pending the

determination of the substantive suit.”

While the above suit and motion for interlocutory injunction

were pending in Federal High Court 2, the Respondent on

the 20th

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day of March, 2017 preferred a criminal charge, Charge No

FHC/IB/26C/2017 against the Appellant and 2 others in

Court 1 before Ayo- Emmanuel J. (the lower Court). The

Respondent’s case as set out in their brief is as follows:

“My Lords, sometime in 2015, the Respondent received an

intelligence report that the Appellant together with the duo

of Oloye Jumoke Akinjide and Mr. Yinka Taiwo who at that

time was the chairman People Democratic Party on the eve

of Presidential Election received and possessed the sum of

N650, 000,000.00 being proceeds of gratification received

by the Former Minister of Petroleum Resources, Mrs.

Diezani Alison-Madueke from various Oil Marketers.

The said intelligence was received, analysed and

investigated whereupon it was discovered that the

Appellant and his cronies did receive the sum of N650,

000,000.00, being proceeds of gratification received by

Mrs. Diezani Alison Madueke from oil marketers. It was

also discovered by the Respondent that the Appellant and

others did not only retain the funds but also made various

cash payments in excess of amount authorized by law

without going through a financial

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institution. (See pages 32-38 and pages 144-151 of records

of appeal for the facts leading to the filing of the charge)

My Lords, upon the conclusion of the investigation by the

Economic and Financial Crimes Commission, the

Respondent by an amended charge filed on the 20th day of

March, 2017 preferred a criminal charge against the

Appellant wherein it was alleged that the Appellant

conspired with Oloye Jumoke Akinjide and Chief

Olarenwaju Otiti to take possession of the sum of

N650,000,000.00 which they reasonably ought to have

known formed part of the proceeds of unlawful act contrary

to Section 18 (a) and punishable under Section 15 (3) & (4)

of the Money Laundering (Prohibition) (Amendment)

Act,2012.

It was also alleged that the Appellant directly took

possession of the N650,000,000.00 which he reasonably

ought to have known formed part of proceeds of unlawful

act contrary to Section 15 (2) (d) Money Laundering

(Prohibition) (Amendment) Act,2012.

My Lords, another category of offences alleged against the

Appellant was conspiracy to make cash payment in excess

of amount authorized by law and the substantive offence of

making in excess of

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amount authorized by law contrary to Section 1 (a), 16 (d)

of the Money Laundering (Prohibition) (Amendment) Act,

2012 and punishable under Section 16 (2) (b) of the same

Act.”

The Appellant claimed that the Lower Court neither issued

nor served him any hearing notice before commencing the

proceedings as required by the Administration of Criminal

Justice Act. The Appellant consequently filed two Motions

in the lower Court seeking an Order to strike out the

criminal charge on the ground that there was no service of

hearing notice and that the charge was an abuse of the

Court process; and an Order dispensing with the physical

appearance of the 2nd Defendant for the purpose of

arraignment pending the determination of the Motion

praying for the striking out of the Charge. Counter

affidavits were filed by the Respondent.

The learned Judge of Federal High Court No 2 where the

civil matter was pending on being informed of the filing of

the charge despite the pendency of the suit and the motion

seeking to restrain the Respondent, on 28/4/17 made an

order restraining the Defendants from taking any further

steps that would prejudice the Motion for

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injunction. Ayo - Emmanuel J of Court No 1, the lower

Court on being informed of the said order of High Court No

2 and after arguments back and forth on issues relating to

the motions filed before him ruled thus:

“Having considered the various submissions of counsel and

more particularly as it relates to the interim injunctive

order granted by my learned brother dated 28th day of

April, 2017, this Court cannot pretend not to know the

magnitude and weight of the said order neither can the

Court cover its eye towards it. By the decision of A.G

Anambra State vs. UBA & Ors (2005)15 NWLR (Pt

947) 44, this Court is bound to take cognizance of the said

order. I cannot be seen to act as an appellate Court over

the decision of a Court of concurrent jurisdiction.

In order to forestall an instance where the two Courts will

be acting at variance and possibly making conflicting

orders, it will be in the interest of justice and wisdom to

have both the criminal and civil suits tried and determined

by the same Court. Consequently, this suit is hereby

transferred to Court two Coram, Hon. Justice J.O

Abdulmalik for trial and determination. Fresh hearing

notice

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shall be issued and served on all the parties.”

Dissatisfied with the Ruling; the Appellant appealed by a

Notice of appeal which was subsequently amended. From

the four grounds of appeal in the Amended Notice of

appeal, the Appellant formulated the following four issues

for determination:

i. Whether the learned Trial Judge could exercise his

discretion and make an order that was not prayed for and

when no argument was called for and none given. GROUND

1.

ii. Whether the learned Court has the jurisdiction to make

an order that has the effect of deciding an application that

has not been heard. GROUND 2.

iii. Whether the learned trial Court has the jurisdiction to

direct another Court of co-ordinate jurisdiction to hear and

determine a matter in which there is an objection as to

competence. GROUND 3.

iv. Whether the whole proceedings is not a nullity in the

absence of service of the Charge and notice of trial on the

Appellant. GROUND 4.

Learned counsel for the Respondent in his brief of

argument formulated a sole issue for determination as

follows:

Whether having regard to the facts and circumstances of

this case, it

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can be said that the learned trial judge lacks the

jurisdiction to make the order appealed against.

ARGUMENTS OF COUNSEL

APPELLANTS ARGUMENTS: Learned counsel for the

Appellants on his issues i and ii submitted that the learned

trial judge ignored the pending application challenging its

jurisdiction to entertain the Charge in respect of which a

Counter Affidavit and Written Address had been filed

calling for a Further Affidavit and Reply Address from the

applicant and went ahead to transfer the case when none of

the parties prayed for the transfer of the criminal charge.

Counsel submitted that the order had the effect of stifling

the Appellant’s application. Counsel further submitted that

the lower Court ignored the issue of non-service of Criminal

Summons as required by Section 382(1) (2) (4) and (6) of

the Administration of Criminal Justice Act 2015. He argued

that the transfer of the charge to Court Two “coram Hon.

Justice J.O.Abdulmalik for trial and determination. Fresh

hearing notice shall be issued and served on all the parties”

was prejudicial to the Appellant’s case because if there was

no service of the

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initial charge, thereby rendering the charge and anything

based thereon null and void, how could there be a further

hearing notice? Counsel argued that the order was aimed

at curing the original defect in service which went to the

jurisdiction of the Court to entertain the charge by making

the order of transfer.

Learned counsel submitted that the Appellant had in the

lower Court raised the issue that the Charge was an abuse

of Court’s process in that there was pending before another

Court of coordinate jurisdiction an action seeking to

declare that the Plaintiffs including the Appellant herein

committed no crime in relation to the campaign funds spent

on the 2015 General Elections and that the parties in this

charge and the civil suit are the same. The criminal Charge

is claiming that they have committed an offence over the

said campaign funds while the civil suit is claiming that

they have committed no offence. Counsel argued that if the

application succeeded, there would be no trial at all as the

prayer in the application was to strike out the criminal

charge. Counsel argued that by ordering the transfer of the

suit to Court Two Coram Hon.

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Justice J.O. Abdulmalik for trial and determination the

learned Trial Judge had determined the application when

the application has not been moved. Counsel based his

contention on the fact that the order is to hear and

determine the suit whereas the application is that the suit

should not be heard at all. Learned counsel saw this as a

serious breach of the Appellant’s right to fair hearing, and

argued that it rendered the proceedings a nullity.

On issue iii, learned counsel submitted that the order by

the Judge of Court 1 transferring the suit to Court 2, a

Court of coordinate jurisdiction for trial and determination

and for fresh hearing notice to be issued amounted to

usurpation of the powers of the presiding judge in Court 2

and violated Section 382 of ACJA.

On issue iv, learned counsel submitted that the ACJA

provided a step by step procedure beginning from

investigation, to filing of Charge, to bringing an offender

before the Court, to application for bail, to trial and to

judgment. He examined the relevant provisions of Section

382 of ACJA and submitted that the lower Court violated all

the provisions and more importantly that there was no

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service on the Appellant. He contended that the Court

could not therefore assume jurisdiction to transfer the

charge to another Court and that the entire proceeding was

a nullity.

Learned counsel urged us to set aside the order

transferring the suit to another Court for trial and

determination and to dismiss the suit or in the alternative

to send the case back to the lower Court Coram: Ayo-

Emmanuel J or any other Court except Hon. Justice J.O.

Abdulmalik for the hearing and determination of the

Appellant’s preliminary objection.

RESPONDENT’S ARGUMENTS:

Learned counsel for the Respondent on his sole issue

submitted that jurisdiction is a threshold issue and goes to

the competence of the Court to hear and determine a suit.

He opined that where a Court does not have jurisdiction to

hear a matter, the entire proceedings no matter how well

conducted and decided would amount to a nullity. Counsel

submitted relying on Section 22 of the Federal High Court

Act that the Court below had the requisite jurisdiction to

suo motu make an order of transfer of a cause or matter at

any stage of the proceedings to another Court. Counsel

quoted the

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provisions of the section and a number of decided

authorities to conclude that a cumulative reading of Section

22(1), (2), (3) and (4) of the Act show that a Federal High

Court Judge, may at any time or at any stage of the

proceedings in any cause or matter before final judgment,

either with or without any application from any of the

parties thereto, transfer such cause or matter before him to

any other judge of the Court; that by Subsection (2) of

Section 22, no cause or matter shall be struck out by the

Court merely on the ground that such cause or matter was

taken in the Court instead of the High Court of a State or of

the Federal Capital Territory Abuja, in which it ought to

have been brought and by Subsection (3), notwithstanding

anything to the contrary in any law, no cause or matter

shall be struck out by the High Court of a State or of the

Federal Capital Territory, Abuja on the ground that such

cause or matter was taken in the High Court instead of the

Court, where he may also cause such transfer to the

appropriate Judicial Division of the Court in accordance

with the rules of Court. By Subsection (4) thereof, every

order of transfer made pursuant to

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Subsection (2) or (3) of this section shall operate as a stay

of proceedings before the Court before which such

proceedings are brought or instituted and shall not be

subject to appeal. Counsel submitted that on the above

premise, the trial Court had the requisite power and

jurisdiction to suo motu make an order of transfer of

charge No FHC/IB/26C/2017 to Hon. Justice J.O Abdulmalik

of the Federal High Court.

Learned counsel submitted that the contention of the

Appellant that he was not served notice of the hearing

when he was adequately represented in Court was a clear

case of paying undue regard to technicalities when it had

long been decided by a plethora of authorities that the

Courts are not workshops of technical justice and must on

the contrary do substantial justice. He urged us to dismiss

the appeal as lacking in merit.

APPELLANT’S REPLY

Learned counsel submitted that the gravamen of the

Respondent’s argument is that the learned Trial judge had

jurisdiction under Section 22 of the Federal High Court Act

to transfer a matter before him to another judge of the

same Court. Counsel submitted that none of the grounds of

appeal

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challenged the power of the trial Judge under Section 22 of

the Federal High Court Act. He argued that the

submissions of learned counsel did not address the issues

raised in the Appellant’s brief.

RESOLUTION:

Without much ado, it is my humble opinion that Section 22

of the Federal High Court Act has no relevance here.

Section 22 of the Federal High Court Act provides:

"(1) A Judge of the Court may at any time or at any stage of

the proceedings in any cause or matter before final

judgment, either with or without application from any of

the parties thereto, transfer such cause or matter before

him to any other Judge of the Court.

(2) No cause or matter shall be struck out by the Court

merely on the ground that such cause or matter was taken

in the Court instead of the High Court of a State or of the

Federal Capital Territory, Abuja in which it ought to have

been brought, and the Judge of the Court before whom

such cause or matter is brought may cause such cause or

matter to be transferred to the appropriate High Court of a

State or of the Federal Capital Territory, Abuja in

accordance with Rules of Court to be made under

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Section 44 of this Act.

(3) Notwithstanding anything to the contrary in any law, no

cause or matter shall be struck out by the High Court of a

State or of the Federal Capital Territory, Abuja on the

ground that such cause or matter was taken in the High

Court instead of the Court, and the Judge before whom

such cause or matter is brought may cause such cause or

matter to be transferred to the appropriate Judicial Division

of the Court in accordance with such rules of Court as may

be in force in that High Court or made under any

enactment or law empowering the making of rules of Court

generally which enactment or law shall by virtue of this

subsection be deemed also to include power to make rules

of Court for the purposes of this subsection.

(4) Every order of transfer made pursuant to Subsection (2)

or (3) of this Section shall operate as a stay of proceedings

before the Court before which such proceedings are

brought or instituted and shall not be subject to appeal.

(5) Where the Court to which any cause or matter has been

transferred pursuant to Subsection (2) or (3) of this section

is of opinion that the cause or matter ought in law to be

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dealt with by the Court which transferred the cause or

matter, the Judge presiding in the first mentioned Court

shall after hearing counsel on behalf of the parties state a

case on a point of law for the opinion of the Court of

Appeal.

(6) Where any case on a point of law is stated for the

opinion of the Court of Appeal, the Court of Appeal shall, in

accordance with rules applicable in that Court, give its

decision upon the case and the Court which stated the case

shall dispose of the cause or matter accordingly.”

The above provisions have been the subject of many

decisions of this and the apex Courts as quoted in the

briefs. Learned counsel for the Appellant is right in his

arguments in the Reply brief that Section 22 of the FHC Act

was made to ameliorate the problem encountered by

litigants who institute actions before the Federal High

Court when the action ought to have been filed at the State

High Court and vice versa. Secondly, where the Federal

High Court has jurisdiction but the matter was brought in a

division of the Court outside of where the subject matter

arose the judge may under Section 22 of the Federal High

Court Act transfer

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the case to the Federal High Court in which the cause of

action arose. Previously, the Courts in such situations

struck out such suits. The aim of the new provision is to

save such suits from being struck out. None of the above

scenarios exist in the present situation. The section is

consequently inapplicable.

It is trite that jurisdiction is a threshold matter as it goes to

the competence of the Court to hear and determine the

suit. See: BRONIK MOTORS LTD AND ANOTHER V

WEMA BANK LTD. 1983 1 SCNLR P.296; OKOYA V.

SANTILLI 1990 2 NWLR PT.131 P. 172. In the case of

MADUKOLU V NKEMDILIM 1962 1 ANLR PT.1 P.587

the Supreme Court held that a Court is competent to

exercise jurisdiction where the Court is properly

constituted as regards numbers and qualification of its

members; the subject matter of the case is within its

jurisdiction and there is no feature in the case which

prevents it from exercising jurisdiction and the case comes

before the Court initiated by due process of law and upon

fulfilment of any condition precedent to the exercise of

jurisdiction.

The contention of the Appellant is that the learned trial

judge assumed jurisdiction to transfer

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the case as he did when the condition precedent to his

assumption of jurisdiction had not been fulfilled in that no

charge or notice of trial had been served on the Appellant

as required by law; and that there was an application

pending seeking to dismiss the Charge as an abuse of

Court’s process. Appellant’s contention further is that the

learned trial judge suo motu transferred the charge without

any application by any of the parties and in a manner that

pre-determined all the pending applications.

A careful reading of the proceedings of the lower Court as

appeared in the Record of appeal especially the

proceedings of Tuesday 9th day of May 2017 at pages 163 –

168 of the printed record show that the facts are not quite

as presented by the Appellant in his brief. The lower Court

had pursuant to Section 382 (5) of the Administration of

Criminal Justice Act ordered that the Notice of trial and

Information be served on the three defendants through

their legal practitioners. Learned counsel for the 1st and

3rd Defendants admitted that they were served. Both

counsel said they had been served and that there is no

issue about that (1st Defendant page 164 first

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three lines. 3rd Defendant Page 166 3rd line.) Counsel for

the 2nd Defendant who is the Appellant herein at the last

three lines of page 164 stated that he had not been served

with the summons. He stated that the learned trial judge

had said the application challenging jurisdiction would be

heard first. One wonders why if he had not been served

with the summons, he would be applying for an Order

dispensing with his physical appearance for the purpose of

arraignment. Learned counsel for the Appellant further

observed:

“My learned brother appearing in Court this morning was

in Court on that day when that order was made. (Order by

Court 2 on 28/4/17 restraining the Defendants in Suit no

FHC/1B/CS/15/2017 from taking any further steps that

would prejudice the Motion for injunction). This is not a

simple matter of civil matter and criminal matter going on

at the same time but that no matter should go on since that

case is going on. If my learned friend this morning is asking

for an arraignment and asking your lordship to give a penal

order against the 2nd Defendant who is a party in that suit,

he is the one disrespecting the order of your learned

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brother. What I expected that he should do this morning is

to come to Court and ask for an adjournment based on the

order of your learned brother.

I align myself with the learned silk that we should stay

proceedings till the ruling of your learned brother. I also

need to file my response to the reply of the prosecution.”

It is my view that non service of the summons on the

Appellant was not made such an issue at the lower Court as

would have deprived the court of jurisdiction to take any

step in the matter. The Appellant who claimed not to have

been served was duly represented by counsel. The concern

of the Appellant as clearly made known by his Counsel

above is that the criminal charge should not proceed in

view of the order of Court 2. Claim of absence of fair

hearing does not therefore arise at all. There were

sufficient submissions by all the Counsel especially the

Appellant’s Counsel as set out above to enable the learned

trial Judge come to the conclusion that the proper step to

take in the circumstances was to transfer the charge to

Court 2. He could not be seen to be acting as an appellate

Court over the decision of his brother

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judge of coordinate jurisdiction and also to avoid the

possibility of their making conflicting orders. It could not

consequently be said that the learned trial judge raised the

issue suo motu and decided without hearing the parties.

Considering the issues at stake in Court 2, I am not

surprised the lower Court opted for the transfer to Court 2.

He could not act as an Appeal Court over the decision of his

brother Judge of coordinate jurisdiction and they should not

be seen to be making conflicting orders. The learned trial

Judge said it all and the Appellant should have read

between the lines. Although the Appellant and his co-

Applicants were asking for stay of proceedings; having

heard their submissions, the learned trial judge rightly in

my view decided that it was better to transfer the charge to

Court 2 where all the issues can be dealt with. I am of the

view that the transfer of the suit to Court 2 Coram, Hon.

Justice J.O Abdulmalik for trial and determination does not

preclude the Judge from hearing the pending applications if

counsel desired to continue with the applications. Common

sense however dictates that since there is already pending

in that Court

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an order restraining the Defendants from taking any

further steps that would prejudice the Motion for

injunction, that the motion for injunction would be heard

and determined one way or the other before any further

steps can be taken on the criminal charge. However, Hon.

Justice J.O Abdulmalik of Court 2 is master in his own

Court. From the Record of Appeal, summons had already

been ordered by the lower Court to be served on Counsel

for the parties. Two of the Counsel admitted service. It

follows that what ought to be ordered is fresh hearing

notice on the parties. However, this does not preclude any

party who claims not to have been served at all from raising

the issue before Hon. Justice Abdulmalik.

I am at a loss as to why the Appellant found it necessary to

appeal the Ruling of the lower Court to transfer the

criminal charge to Court 2. If truly his reservation was the

transfer for trial and determination and the order for fresh

hearing notice; he would have confined his complaint to

that aspect of the order. On the contrary, he is urging us to

set aside the order transferring the suit and to dismiss the

suit or in the alternative send it back to the

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lower court Coram: N. Ayo Emmanuel J or any other Court

except Hon. Justice J.O. Abdulmalik for the hearing and

determination of the Appellant’s preliminary objection.

This, in my humble view shows lack of good faith and the

intention to merely delay the hearing of the matters. Such

conduct on the part of Counsel must be deprecated as it

constitutes a clog in the speedy and due administration of

justice to the detriment of the reputation of the Courts and

the Judiciary. I am of the firm view that this appeal has no

merit whatsoever. It is hereby dismissed.

HARUNA SIMON TSAMMANI, J.C.A.: I read in advance

the judgment delivered by my learned brother, C. E.

Iyizoba, JCA.

The learned trial Judge transferred the case hitherto

pending before him in the exercise of his discretion.

Certainly, the learned trial Judge did so in the exercise of

the inherent power granted all Courts in the exercise of

adjudicatory functions by virtue of Section 6(6)(a) of the

1999 Constitution of the Federal Republic of Nigeria (as

amended). So long as the Court exercised that inherent

power judicially and judiciously, the Appellate Court

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will not interfere. In the instant case, the decision of the

learned trial Judge to transfer the case to his learned

brother of the same jurisdiction, was for good reason. It

was meant to avoid conflict in the decisions that may come

out of the two Courts.

It is for the above reason that I agreed that this appeal has

no merit. It is hereby dismissed by me.

NONYEREM OKORONKWO, J.C.A.: I agree with the lead

Judgment in this appeal by my lord Chinwe Eugenia Iyizoba

JCA dismissing this appeal as being misconceived.

I will proceed to add that Section 22 of the Federal High

Court Act does not contain any factual conditions that must

be met before a Judge will feel obliged to transfer a case

before him to another Judge of the same Court. Numerous

factual scenario may arise to justify such a cause of action

including personal reasons.

Transfer of cases generally, is the preserve of the trial

judge or administratively the function of the Chief Judge.

The trial Court has given very good reasons why he could

not proceed further with the case which reasons are

unassailable. One wonders why the appellants are against a

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particular Judge. Perhaps appellant should apply to the

Chief Judge of the Federal High Court who could

administratively make such transfer.

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Appearances:

MICHAEL F. LANA, ESQ WITH A. A. ISETIE, ESQAND F. O. ODEYEMI (MISS) For Appellant(s)

IDRIS A. MOHAMMED, ESQ For Respondent(s)

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