By: Joseph A. Adudu, March 28, 2022
A Jos High Court presided over by His Lordship, Hon. Justice I.I Kunda has dismissed an application filed by a Jos based medical practitioner, Dr. Michael Owoicho Odeh seeking for declaratory reliefs and an Order dismissing the charge of adultery between him and the Commissioner of Police in suit No. UACI/CR.90/2017.
Dr. Odeh (Applicant) is standing trial before the Upper Area Court Kasuwan Nama, Jos presided over by Hon. Lawan Suleimain who is the Sole Judge and 1st Respondent in this matter. The applicant was arraigned on First Information Report (FIR). He was subsequently charged on allegations of offences punishable under section 387 and 389 of the Panel Code. The Prosecution led by Alex Mulleng Esq, O.C Legal, Nigerian Police Force, Plateau State Command called all their witnesses and close their case. At the close of Prosecution's case, the applicant made a no case to answer submission. This was overruled by the 1st Respondent and a charge framed for the Applicant to answer for the offence of Adultery inter alia punishable under section 387 and 389 of the Penal Code.Counsel to the Applicant Joseph Danboyi Esq filed a Notice of Preliminary Objection to the trial before the 1st Respondent. The objection was refused. This gave rise to the Application before Justice Kunda for Enforcement of the Fundamental Rights of the Applicant against the 1st Respondent (Hon. Lawan Suleimain Esq and the Commissioner of Police, Plateau State Command (2nd Respondent).
The Applicant prayed the Honourable Court to grant him the following orders; A declaration that he was entitled to his rights as enshrined under section 36 (12) of the constitution of the Federal Republic of Nigeria 1999 (as amended), A declaration that the ruling of the 1st Respondent delivered on December 20, 2019 in suit No. UACR/CR90/2017 dismissing the Applicant's Preliminary Objection dated 6th September, 2019 was unconstitutional, void and constitute a violation of the Applicant's Fundamental Rights to be tried for an offence known to law as guaranteed by section 36 (12) of the Federal Republic of Nigeria (as amended), A declaration that the 2nd Respondent having not elicited any evidence during the trial in suit No. UACI/CR90/2017 between Commissioner of Police Vs Michael Owoicho Odeh to prove that the Applicant Native Law ( the Idoma Native Law/Custom) criminalizes adultery to warrant him capable of being tried under section 387 of the Penal Code; and that the continued trial of the Applicant by the 1st Respondent and prosecution by the 2nd Respondent for the offence of adultery was unconstitutional, void and constituted a violation of the Applicant's Fundamental Rights to be tried for an offence known to Law as guaranteed by section 36 (12) of the constitution of the Federal Republic of Nigeria (as amended) and an Order dismissing the charge of Adultery in suit No. UACI/CR90/2017 between Commissioner of Police Vs Michael Owoicho Odeh prosecuted by the 2nd Respondent and being tried by the 1st Respondent for being unconstitutional, void and an abuse of court process for constituting a violation of the Applicant's Fundamental Rights to be tried for an offence known to Law as guaranteed by section 36 (12) of the constitution of the Federal Republic of Nigeria 1999 (as amended).
Processes were filed and issues joined in the application. At the hearing, the Applicant's counsel as well as respective counsel for the 1st and 2nd Respondent adopted their processes. The Applicant placed reliance on his supporting affidavit to the originating motion, the further and better Affidavit filed in reaction to the respective counter Affidavit of the 1st and 2nd Respondents while adopting all his written submissions as his argument in urging the court to grant the Reliefs sought in the Application. In response to the Notice of Preliminary Objections, Applicant's counsel also adopted the written reply on points of law against the grant of the respective objections raised by each of the 1st and 2nd Respondents and urged the court to dismiss the objections accordingly.In like manner, each of the 1st and 2nd Respondent's Counsel also placed reliance on their respective counter affidavits in opposition to the grant of the reliefs sought in the originating application and adopted their respective written addresses in urging the court against the grant of the reliefs sought. Similarly, each of the 1st and 2nd Respondents adopted their respective Notices of Preliminary Objections and urged the court to discountenance the reply by the applicant to their objections and to proceed and uphold the grounds of objections.
In his approach to his ruling, Justice Kunda first reviewed the circumstances of the facts giving rise to the applicantion against the 1st Respondent. According to the Judge, "An examination of the First Information Report brought before the 1st Respondent sitting as the Sole Judge Upper Area Court Kasuwan Nama, was properly done in terms of jurisdiction to try the offences disclosed therein.
"Similarly, all the steps the 1st Respondent took in the trial was also done within jurisdiction. It follows that the ruling by the 1st Respondent refusing to uphold the No case submission made on behalf of the applicant was also within the power of the 1st Respondent to make.
"The same goes to the ruling on the Notice of Preliminary Objection. In the event that the 1st Respondent upheld the no case to answer submission and or the Preliminary Objection brought by the applicant, this applicantion would not arise.
"In other words, the 1st Respondent, when he assumed jurisdiction to hear the charge against the applicant, when he heard all the Prosecution witnesses, when he heard the no case submission made by the applicant and when he gave his ruling therein and when he also heard the Notice of Preliminary Objection and gave his ruling on same, he was performing a judicial function".
Consequently, Justice Kunda cited section 9 of the Area Court Law which provides that "no Area Court judge or member of an area court shall be liable for any act done by him or ordered by him to be done in the discharge of his judicial duty whether or not within the limits of his jurisdiction, provided that he at the time, in Good faith believed himself to have done the act in question". He said that similar provisions existed in the laws establishing the High Court and Magistrate Court noting that the provisions have received plethora of judicial pronouncements and cited the most celebrated Supreme Court pronouncement in the case of Egbe vs Adefarasin & S.O Ilori ( 1985) 2 NWLR 549, the case of NDEFO vs Obiesie & others (2000) LPELR-6088 (CA) as well as that of SBM Services Nig. Ltd & others vs Okon & others (2004) 9 NWLR (Pt. 879) 529.
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Justice Kunda continued, "Upon a Holistic reading of the case against the 1st Respondent in this suit, I wholly abide by the two decisions of the Supreme Court and the Court of Appeal cited above". He said that his understanding of the Applicant's prayer to the originating motion is that it calls for a review of the Ruling of the 1st Respondent delivered on December 20, 2019 dismissing the Applicant's Notice of Preliminary Objection dated September 06, 2019. Justice Kunda stated that if that relief was granted in this suit, it would have the effect of setting aside or reviewing the said ruling of the 1st Respondent thereby, dismissing same noting that the ruling was done by the 1st Respondent judicially and judiciously adding that the proper remedy to an aggrieved party to the ruling was to appeal the ruling to the Court of Appeal or to apply for habeas corpus or a writ of reverse the ruling. He further stated that in view of the above position, he did not find it necessary to delve into the submissions touching on the issue of the charge of adultery against the applicant which was pending before the Area Court Kasuwan Nama. "This is because, being a court of competent jurisdiction to try the charge, the ruling on the No case submission by the court and indeed the ruling on the Notice of Preliminary Objection, having not been appeal against, are subsisting orders of a court of competent jurisdiction.
"I have read the ruling of the 1st Respondent dismissing the Notice of Preliminary Objection. That ruling decided the main issues submitted in this applicantion ie that the 1st Respondent lacked the jurisdiction to frame a charge against the Applicant for an offence not known to law.
"The 1st Respondent gave a considered ruling on the objection. The options opened to the Applicant (Aggrieved person) on that ruling are as considered above i.e. to Appeal the ruling to the Court of Appeal etc.
"It is for this reason that I find the evaluation of the submissions by the Applicant's counsel in support of this application and in opposition to the objection unnecessary just as the entire application is also unnecessary".
The Judge further held that the case of Tofu vs UBA (1987) 3 NWLR - Pt. 62 which formed the back bone of the submission by Applicant's Counsel can serve him better in an Appeal against the ruling of the court on his Notice of Preliminary Objection rather than the this action.
"I am persuaded by the submissions of the learned counsel to the 1st respondent on the application of the said decision in that case.
"I accordingly, uphold the said submission by the 1st Respondent's counsel to the effect that the facts in the case of TOFI vs UBA (Supra) are not in fours with the present case.
"On the whole, I hereby uphold the grounds of objections which have been treated together above. I find no merit in the entire suit, this application is accordingly refused and same is dismissed.
"Having dismissed this suit, the earlier order made by this court staying proceeding in suit No: UAC/CR90/2021 between COMMISSIONER OF POLICE VS MICHAEL OWOICHO ODEH, at Upper Area Court Kasuwan Nama, Jos is hereby accordingly discharged.
"The trial thereto shall proceed forthwith", Justice Kunda ruled.
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