THE STATE (RESPONDENT)

v.

(1) I.O. FALADE

(2) MRS. FISHER

(3) G.A. TUTUMER

(4) T.A. ADEWOLE

(5) F. ODUKOKE (APPLICANTS)

(1971) All N.L.R. 551

Division: High Court, Benue-Plateau

Date of Judgment: 30th September, 1971

Case Number: SUIT NO. JD/49/1971

Before: Bate, S.P.J.

Application for order of Certiorari.

HELD:

(1)     Certiorari is commonly used where an inferior tribunal has acted without jurisdiction. But it may also be appropriate where there is an error on the face of the proceedings or where there has been a failure to observe the rules of natural justice.

(2)     In this case none of the applicants was given an opportunity to make his defence. This amounted to a disregard of the rules of natural justice. Therefore the conviction must be quashed.

Application granted.

Cases referred to:

B. Ayinde v. Iwo District Grade "B" Court, (1965) N.M.L.R. 408.

Anisminic Ltd. v. Foreign Compensation Commission, (1967) 3 W.L.R. 328.

R. v. Wandsworth Justices, ex perte Read, (1942) 1 K.B. 287.

APPLICATION for order of Certiorari.

SUIT NO. JD/49/1971.

Ikomi for the applicant.

Odoma, D.P.P. for the respondent.

Bate, S.P.J.:-The applicants have applied for an order of certiorari to remove into the High Court proceedings between themselves and the State in the court of a Magistrate Grade III. The record shows that they were convicted of criminal trespass contrary to s. 343 and punishable under s. 349 of the Penal Code. The sentence is recorded as follows: "All accused persons are given two weeks to quit failing which they are fined £20 each and to be ejected by the Police."

The first ground upon which the application is argued is that the Magistrate had no jurisdiction. It is said that he was in fact dealing with a civil matter, that is, the recovery of premises, and that his jurisdiction is confined to the trial of criminal cases. For the respondent it was contended that the Magistrate had jurisdiction to try the offence of criminal house trespass and that is what the Magistrate had done. Reliance was placed on the decision of the High Court of Western Nigeria in B. Ayinde v. Iwo District Grade "B" Court, (1965) N.M.L.R. 408.

With regard to this first ground, the terms of the Magistrate's judgment and the documents annexed to the affidavits in support of the application lend some colour to the view that the Magistrate was uncertain whether he was concerned with the trial of the criminal offence of house trespass or with a suit for the recovery of premises. But the record is of criminal proceedings in relation to house trespass. This is an offence which may be tried by a Magistrate Grade III. I find therefore that the Magistrate was not acting outside his jurisdiction and the first ground therefore fails.

The second ground is that there was an error of law on the face of the record and that this entitles the applicants to an order of certiorari. It was submitted that there is an error on the face of the record in that the applicants had not been allowed to make their defences. Reliance was placed on a passage in the Annual Practice (Eng) 1970, in note 53/1/4 at p. 727, paragraph 2. For the respondent the argument was that the 1st applicant had been heard and had spoken in a representative capacity for the other applicants. In the alternative, it was said that failure to hear the accused is not such a manifest error of law on the face of the record as would justify the grant of an order of certiorari.

The passage relied on in the Annual Practice and the case cited therein, Anisminic Ltd. v. Foreign Compensation Commission, (1967), 3 WLR 382 are somewhat complex. The matter is dealt with in simpler terms in Halsbury's Laws, 3rd edition, Vol. 11 at p. 61, paragraph 118. There it is stated that "Where upon the face of the proceedings themselves it appears that the determination of the inferior tribunal is wrong in law, certiorari to quash will be granted." And at p. 65, paragraph 122, of the same volume, under the heading "Natural Justice", it is further stated that an order of certiorari may be granted to bring up and quash the decision of a person exercising judicial functions if he fails to listen fairly to both sides. One of the cases cited in connection with this paragraph deals with the situation where the inferior tribunal fails to hear both sides. I refer to the case of R. v. Wandsworth Justices, ex parte Read, (1942), 1 KB 281. Mr Read, a butcher, was summoned before the Justices for misrepresenting the weight of the meat he had been selling.

The Justices heard evidence and argument about a preliminary issue and retired to consider their ruling. They had not given Mr Read the opportunity to make his defence or heard him on the main issue. But when they returned from considering the preliminary issue, the Justices, instead of giving their ruling, convicted Mr Read on one of the summons. Mr Read obtained an order of certiorari to quash his conviction on the ground that failure to hear him was a denial of natural justice. Humphreys J. said "If a person can satisfy this Court that he has been convicted of a criminal offence as the result of a complete disregard by an inferior tribunal of the laws of natural justice, he is entitled to the protection of the court."

Certiorari is commonly used where an inferior tribunal has acted without jurisdiction. But it is apparent from the authorities to which I have referred that it may also be appropriate where there is an error on the face of the proceedings or where there has been a failure to observe the rules of natural justice. In the present case the substance of the applicants' complaint is that the Magistrate failed to observe the rules of natural justice in that he did not hear them or allow them to make their defences. This is the error complained of. The record shows that their complaint is justified. None of the applicants was given an opportunity to make his defence. The 3rd applicant, who was the 1st accused, was allowed to address the Magistrate before the evidence for the prosecution was given but he was not asked whether he wished to give evidence on his own behalf as he should have been when the prosecution closed its case; nor was he asked whether he wished to call witnesses. None of the other applicants was given the least chance to present his defence. There is nothing on the record to show that any of them regarded the 3rd applicant as his representative or consented that he should represent them. And even if there had been, the 3rd applicant was not given any proper opportunity to do so. The provisions of the Criminal Procedure Code whereby the right of an accused person to a fair trial is safeguarded were altogether ignored. I conclude that the rules of natural justice were disregarded and that it is therefore within the discretion of this Court to make the order prayed and quash the conviction.