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Prohibition order is available against a person acting in judicial or quasi-judicial capacity-Part 3



In the Court of Appeal Enugu Judicial Division
Holden at Enugu
On Wednesday The 9th Day of December, 2015 Before Their Lordships


CA / E/ 162 / 08

It is my humble but strongly held view that a matter that can be handled more appropriately by another branch of government is not an appropriate, (I wont go so far as to say) a justifiable matter for the courts. Political questions or, as in this case, communal sentimental questions, should not be decided by the courts because, those issues are incapable of judicial resolution. The learned trial judge expressed the same view on page 333 of the Record where the held thus:

“If the majority of Nkerehi town want the referendum, why should the court stop them as that would even help in the quick dispensation of the pending suit. If there is an administrative method that sorts the natives of Nkerehi town out faster, why should the court stop the easier way of finding a solution to the problem”.

On 7th day of January, 2008 pursuant to the judgment of the High Court the Anambra State Governor through the 1st Respondent conducted referendum at Nkerehi on change of its name to Umuchukwu and majority voted for change of the name to Umuchukwu, which is now published in Anambra State Official gazette No.2 of 6th March, 2008 Vol.18. Suffice it to say that this is resolved against the Appellants.

The learned Appellants’’ counsel complained that the learned trial judge delivered a one sided judgment by relying only on the counter affidavit of the 1st Respondent and wholly believing same without reading or considering the various affidavits deposed to by the Appellants resulting in perverse findings of the trial court. He submitted that the perverse findings be set aside. He cited Akinwumi v. Idewu (1969) 1 All NLR 319; Okpiri v. Jonah (1961) All NLR 101 and Maja v. Stolo (1960) 1 All NLR 142.

Learned 1st Respondent’s counsel argued that the learned trial judge gave all the parties the right to be heard and also made a thorough evaluation of all processes and submissions of all counsel. The court was not obliged to say specifically that he had considered the contents of each affidavit. He cited Olafermi v. Ayo (2009) 19 WRN pg. 30 at 50; Newswatch v. Atta (2006) vol 139 LRCN pg. 1894 at 1897, 1901, Gbadamosi v. Dairo (2007) 143 LRCN 508 at 518.

The learned senior counsel for the 2nd and 3rd Respondents argued that a thorough reading of the judgment will show clearly that the judge referred to the fact that consideration was given to all the process filed in the case before a decision was reached and that there is nothing perverse in the judgment of the trial court.

The dictum of the trial judge complained of which formed the basis of Appellants grouse is stated below on page 332 of the Record.
“I have not delved into the affidavits and counter affidavits of the applicants and the 2nd to 4th Respondents respectively because they are averments of persons who are already at each other’s throats”.

I have read the whole judgment and the context in which the above was said clearly shows that the learned trial judge was trying to say, rightly so, that the brick throwing contained in the affidavit of both parties did not aid him in considering the legal issue of the entitlement of the Appellants for leave to cause a write of prohibition to be issued. In fact at the same Page 332, the learned trial judge held as follows:
“I have reviewed all the affidavits, further affidavits, counter-affidavits and further counter-affidavits of all the parties in this case”.

All the trial judge is obliged to do is to review all the affidavit evidence on record which he referred to at the beginning of the judgment and at some later points. A complaint of fair hearing can only be successfully made where one party has been deprived of his right to be heard or the judge is found to be biased. That is not the case here. See Sadiku v The State (2013) LPELR-20588 (SC).

I have hitherto quoted page 332 of the record which shows clearly that the learned trial judge considered all the processes filed in this case and which leads me to conclude that the complaint of lack of fair hearing is unfounded. The 2nd issue is resolved against the Appellants.
In view of the humble opinion expressed above, I agree with the Respondents that the appeal has no merit and it should be dismissed. N100,000. 00 costs to the Respondents collectively against the Appellants.

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High Courtjustice
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