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Dike v. Aduba

L. O. DIKE

E. A. ONYIA

D. O. NWOSU

( For themselves and on behalf of The Living Christ Mission Onitsha)

V

DR. OSITA ADUBA

PATRICIA ADUBA

( The Administrator and Administratrix of Estate of Mr. Osita Aduba)

SUPREME COURT  OF NIGERIA

ADOLPHUS G. KARIBI-WHYTE,  J.S.C. ( Presided )

EMMANUEL O. OGWUEGBU, J.S.C.

ALOYSIUS I. KATSINA-ALU, J.S.C.

UMARU A. KALGO, J.S.C.

SAMSON O. UWAIFO, J.S.C. ( Read the Leading judgment )

SC/108/94

FRIDAY 4TH FEBRUARY, 2000

ACTION - Decision taken administratively - Application for transfer before an administrative Judge - Proper procedure - Whether subject to judicial proceedings - Factors to consider - Order 19 R. 5(1) (2) of the Anambra State High Court Rules, 1988, considered

APPEAL - Decision taken administratively - Whether falls under section 277(1) of the 1979 Constitution - Whether appealable -  Consideration of the meaning of ‘decision’ in section 277(1) of the 1979  Constitution in relation to section 220(1) (9) (ii) or (v) of the 1979 Constitution and decision taken administratively - Effect thereof

INTERPRETATION  OF STATUTES - Meaning of the term ‘decision’ in section 277(1)  of the 1979 Constitution - Whether excludes ex parte interim decision -   Effect of - Section 220(1) (9) (ii) or (v) of the 1979 Constitution

JUDGMENT AND ORDERS -  Simple administrative matter - Absence of judicial proceedings - Where appealed  against - Whether falls outside the meaning of decision under section 277(1) of the 1979 constitution - Whether not appealable

PRACTICE AND PROCEDURE - Administrative judge or Chief judge  transferring suit  from the Magistrates’ Court to High Court - Pursuant to  Order 19, R 5(1)  of the Anambra State High Court Rules, 1988 - Decision made under the order - Whether falls within definition  of ‘decision’ under section 277(1) of the 1979 Constitution

PRACTICE AND PROCEDURE - Transfer of case from the Magistrates’ Court to the High Court, - Application taken administratively and that taken judicially in  court proceedings.  Consideration  of  under Order 10 R. 8 and Order 19  R. 5 of the Anambra State High Court Rules, 1988 - Distinction between

PRACTICE AND PROCEDURE - Transfer of case from the Magistrates’ Court to the High Court - Where administratively done- Whether there is need for judicial proceedings - Whether the term judicially and judiciously can be used in reference to the exercise of such powers

WORDS AND PHRASES - ‘Decision’ in section 277(1) of the 1979 Constitution Meaning and effect in reference to section 220(1) (g) (ii) or (v)  of the 1979 Constitution and decision taken administratively - Effect

Issues:

  1. Whether the  fact that a claim for an order of transfer was included in the writ of summons before a trial judge in a High Court, who in any event, had no jurisdiction to entertain the claim was sufficient to preclude the Chief judge or an administrative judge in the Onitsha Judicial Division from exercising his power under order 19 R. 5(1) of the Anambra State High Court Rules, 1988.
  2. Whether in exercising the power under Order 19 R. 5 of the Anambra State High Court Rules, 1988, the Chief judge or the Administrative judge need to take argument from the parties or have the parties appear before it and consider the application judicially and judiciously.
  3. Whether the ‘decision’ arrived at by the Chief judge or the

administrative judge pursuant to the exercise of his power to transfer a case under Order 19 R. 5 of the Anambra State High Court Rules, 1988  falls within section 277(1) of the 1979 constitution and thus appealable.

Facts:

Two actions were pending in different courts between the same parties. One was earlier filed by the respondents as suit No. M0/660/92 in the Magistrates’ Court, Onitsha.  The other was filed by the appellants as suit No. 0/390/92 in the High Court, Onitsha.  Both were in respect of the same subject matter, namely, the tenancy of a flat and out houses at No. 42 Mba Road, Inland Town, Onitsha.

The suit in the High Court raised more issues than that in the Magistrates’

Court.  While the suit in the Magistrates’ Court merely sought possession and mesne profit on the ground that the yearly tenancy had been duly determined, the High Court suit raises issues that the appellants had ceased to be mere tenants in view of some collateral contractual considerations and an alleged tortuous act of the respondents in connection with the property.  The claim of the appellants at the High Court  includes special and general damages of N900,000.00 and an order for the High Court Judge (Ononiba, J.) to transfer the suit in the Magistrates’ Court to his court.

The respondents too filed and argued a motion unsucessfully in the High Court to have the appellants’ suit No. 0/390/92 struck out on the ground that it was an abuse of court process.  In the meantime, the appellants applied to the administrative judge of the High Court, Onitsha to transfer the suit in the Magistrates’ Court to the High Court presided over by Ononiba, J, which would enable the matter to be consolidated for hearing and determination .

The administrative judge, Nwazota, J., made the order of transfer on the 13 th of January, 1993.  Dissatisfied with the order, the respondents appealed to the Court of Appeal who set aside the transfer order on 24 February, 1994 and directed that suit No. M0/660/92 be sent back to the Magistrates’ Court for hearing and determination.

Dissatisfied with the Court of Appeal decision, the appellants appealed to the Supreme Court, contending in the main, that a claim for an order of transfer erroneously included in the writ of summons in suit No. 0/390/92 before Ononiba, J., who had no jurisdiction to entertain the claim would not preclude Nwazota, J., acting as the Administrative Judge in the Onitsha Judicial Division from exercising his undoubted jurisdiction under order 19 rule 5(1) of the Anambra State High Court Rules, 1988 to make the transfer order.