In the matter of an application by Lieutenant Robert Ike Chigozien Okafor for leave to apply for an Order of Certiorari under Section 20 (2) of the High Court of Lagos Act, Cap. 80.

and

In the matter of Charge No. F/125/64

Inspector-General of Police v. Lieutenant Robert Ike Chigozien Okafor in the Magistrates' Court No. 4 Yaba in the Lagos Magisterial District

In re: LIEUTENANT OKAFOR (APPLICANT)

v.

INSPECTOR-GENERAL OF POLICE

(1964) All N.L.R. 589

Division: High Court, Lagos

Date of Judgment: 21th December, 1964

Case Number: M/200/64

Before: Taylor, C.J.

The applicant, a member of the Nigerian Army, appeared before the magistrates' court, on 6th November, 1964, charged with stealing £2,521. 10/-. He asked one of the Counsel present in court to appear for him, and the Counsel did so. The case was fixed for 10th and 11th November for preliminary investigations to be conducted; the accused person was remanded in custody as he was unable to comply with the conditions imposed for bail.

When the case was called on 10th November, Counsel representing the accused person applied for an adjournment to 11th November to enable Counsel to take full instructions from the accused person, but the application was refused. Counsel then applied for a short adjournment for 10 minutes which was granted and on resumption, Counsel withdrew from the case leaving the accused person to conduct the preliminary investigations as best he could. The investigations continued on 11th and ended on 12th November. The present application was then brought on 14th November and was not heard until after the accused person had been committed, on 21st November, for trial at the March 1965 Assizes. The relief sought is for an order of Certiorari to remove to the High Court and quash the order made by the magistrate on 10th when he refused to grant Counsel adjournment. It is contended, by Counsel, that the refusal of his application for adjournment amounted to a denial of justice,

HELD:

(1)     The question whether or not an adjournment will be granted is a matter within the discretion of the court though that discretion must be exercised judiciously, and there is no provision in the Constitution which controls or fetters the discretion of the courts in matters of this nature.

(2)     It is a question of fact in each case whether an accused person has been given adequate time and facilities to prepare his defence as provided in section 22(5)(b) of the Constitution, and section 22(5)(c) does not put into the hands of the accused person the power to stultify proceedings of the court, or his Counsel by withdrawing from the case as in the circumstances of this case.

(3)     Since the proceedings were not a trial but mere investigations, the act of withdrawal by Counsel is wrong. He ought to have "stood by" the accused person on the 10th to see that his interests were fully protected; that inadmissible evidence was not tendered or adduced and that witnesses were not led.

(4)     An order of certiorari will not be made where no benefit could arise by granting it. In this case, it would serve no useful purpose because the Order of Committal has not been impugned.

Application dismissed.

Cases referred to:-

Re Ekins (1953) 117 J.R.Jo. 705

The Queen v. The Justices of the County of Roscommon (1894) 21 R. 158

Law referred to:-

Constitution of the Federation (No. 20 of 1963) section 22(5)(b) and (c).

Obi, for the Applicant.

Taylor, C.J. of Lagos:-This is an application for leave to apply for an order of Certiorari to remove into this Court and quash an order of the learned Magistrate dated the 10th November, 1964 refusing Counsel for the accused an adjournment to enable him to take instructions from the accused person with the result that Counsel for the accused had to withdraw from the case.

The facts relevant to this application before me are that the applicant, a member of the military force in Nigeria was on the 6th November, 1964 brought before the Magistrate in court No. 4 Yaba to answer to a charge of stealing the sum of £2,521. 10. 0d. On that day in court he asked Mr Onyeabo Chukwunedum Obi to appear for him, and the latter did so. The case was eventually fixed by the learned Magistrate for the 10th and 11th November for preliminary investigations to be conducted. It is stated in paragraph 17 of the supporting affidavit that Mr Obi asked for a longer adjournment in order to consult his client. The prisoner though granted bail, was unable to comply with the conditions imposed and was therefore remanded in custody.

When the case was called on Tuesday, the 10th November (and not the 11th as appears in paragraph 23 of the affidavit), Counsel for the prisoner sought an adjournment which according to paragraph 24 was for the 11th November to enable Counsel to take full instructions from the accused. The application was refused. An application for an adjournment for 10 minutes on the same day was granted and on resumption, Counsel withdrew from the case, and left the accused to conduct the case in the preliminary investigation as best he could. These investigations continued on the 11th and finally ended on the 12th. On neither of these two days did learned Counsel seek leave to re-appear for the accused who was finally committed for trial at the March, 1965 Assizes on the 21st November, 1964.

The application now before me was sworn to and filed on the 14th November, 1964 and the relief sought reads thus:-

"An order of Certiorari to remove into this Honourable Court and quash an order made by the learned Magistrate at Magistrate Court No. 4 Yaba in the Lagos Magisterial District on the 10th day of November, 1964, refusing the Counsel for the said accused person a very short adjournment to enable him to take instructions from the accused person on the conduct of the case for the accused, with the result that Counsel for the accused had to withdraw from the case and the proceedings continued without the accused having any legal representation."

From this it is clear that the order impugned is the order of the 10th. Nothing is said about, and in fact nothing at that stage could be said, about the order of committal which was not made till seven days after this application was filed.

I can find no substance in the grounds contained in the application which were urged at the hearing of the application for leave. The question of whether an adjournment will be granted or not is a matter within the discretion of the court though that discretion we are aware, must be exercised judiciously. There was no question of law involved as ground (a) of the grounds alleges. As for ground (b) there is no provision in the Constitution which controls or fetters the discretion of the courts in matters of this nature. It is a question of fact in each case whether an accused had been given adequate time and facilities to prepare his defence as provided in section 22(5)(b) of the Constitution. Section 22(5)(c) does not put into the hands of the accused or his Counsel the power to stultify proceedings in court by withdrawing from the case in the circumstances of this case.

I fail to see that there is any failure of, or a disregard of the fundamental condition of the administration of justice in the refusal to grant the adjournment in the circumstances of this case, which was a preliminary investigation, as is urged in ground (c). Ground (d) might have had some substance if the proceedings were a trial and not an investigation.

Counsel argued that the refusal to grant the adjournment amounted to a denial of justice. The only and nearest example to this case that I have been able to find is the case of Re Ekins (1953) 117 J.R. Jo. 705, but unfortunately the report is not available. The learned author of Halsbury's Laws of England Vol. 11 3rd Edition at 66 note (f) says this of the case:-

"Certiorari will not be granted (on the grounds of a denial of Justice) because Justices refused an adjournment to allow a witness to be called to rebut an allegation of forgery made against a defendant in proceedings under the Road Traffic Act (Re Ekins (1953) 117 J.P. Jo. 705)."

One realises that cases must and do arise in which Counsel's position is so untenable that there is no choice left to him but to seek leave to withdraw from the case, but in the matter before me I can find nothing whatsoever to justify Counsel's breach of the duty he owed the accused and the court, by his act of withdrawal. As I have said before, it was not a trial. He could have "stood by" the accused on the 10th to see that his interests were protected; that inadmissible evidence was not tendered or adduced and that witnesses were not led. On the 11th, as his affidavit shows, he was not engaged and, having completed his instructions, could have sought leave to recall all or some of the witnesses who had given evidence on the 10th. The blame is to be laid at his door and not at that of the trial Magistrate.

I ask myself what useful purpose will be served, even if the applicant were able to make out a case for an order for leave to be granted, by my quashing the order of the 10th November, 1964 refusing an adjournment£ It would serve no useful purpose because the Order of Committal has not been impugned.

The learned author of Halsbury's Laws of England Vol 11 3rd Edition at. 141 paragraph 266 says this:-

"Where grounds are made out upon which the court might grant the order, it will not do so where no benefit could arise by granting it."

Even if there had been an application impugning the order for committal, I am not at all sure that Certiorari will lie, for the learned author of Halsbury's Laws of England Vol. 11 3rd Edition at 130 paragraph 239 says this:-

"It (Certiorari) does not, however, lie to remove a decision of Justices to commit or refuse to commit a defendant for trial."

The Irish authority of The Queen v. The Justices of the County of Roscommon (1894) 21 R. 158 is referred to and I quote from page 167 the judgment of Sir P.O'Brien C.J. which reads as follows:

"...but though the evidence failed to sustain the charge made against Mr Blakeney, can we review the action of the magistrates in this proceeding by Certiorari I am clear that we cannot. In the first place there is no precedent for so doing."

The learned Chief Justice then went on to distinguish the case of The Queen v. John Sullivan where the court refused to enquire into the evidence led after conviction from the case before him by saying that:-

"Indeed in this case there seems to be in reason a stronger warrant for not examining the evidence than existed in The Queen v. John Sullivan. That was a case of conviction attended by punishment. This is a case of merely sending on for trial before another tribunal-rather, I should say, for further investigation before the Grand Jury, and should they find a bill, for trial before a Petty Jury."