L.O. Dike & 2 Ors v. Dr. Osita Aduba & Anor

Two actions were pending  in different courts between the same parties. One was earlier filed by the respondents as suit No. MO/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. Although 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 which merely sought possession and mense profits on the ground that the yearly tenancy had been duly determined. But the High Court case seems to suggest that the appellants had ceased to be mere tenants in view of some collateral contractual considerations and an alleged tortuous act of the respondents of some magnitude in connection with the property. The claim was for a number of reliefs, including 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.

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The respondents had filed and argued a motion unsuccessfully in the High Court to have suit No. 0/390/92 struck out on the grounds 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 Ononiba, J. to consolidate the two suits for hearing and determination. That order of transfer was made on 13 January, 1993 by Nwazota, J. On appeal, the Court of appeal set aside the transfer order on 24 February, 1994 and directed that suit No. MO/660/92 be sent back to the Magistrates’ Court to be determined there. On further appeal to this court, two issues have been raised for determination as follows:

“1.     Whether the Court of Appeal was right in setting aside the order made by Nwazota, J. wherein he transferred suit No. MO/660/92 from Onitsha Magistrates (sic) Court to Onitsha High Court to be consolidated with suit No. 0/390/92 and in sending suit No. MO/660/92 back to the Magistrate (sic) Court Onitsha for hearing?
2.     Whether the mere fact that a claim for an order of transfer was erroneously included in the writ of summons in Suit No. 0/390/92 pending before Ononiba, J. who. in any event, had no jurisdiction to entertain the claim, was sufficient to 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 in this case?”
There is no argument that the order of transfer of the suit in question from the Magistrates’ Court to the High Court was made under Order 19, rule 5 (1) of the Anambra State High Court Rules, 1988. There is also no question that the judge who made the transfer was the Judge in charge of administrative duties. The said Order 19, rule 5 (1) provides inter alia,:
“5(1) An application for the transfer of any cause or matter from a Magistrate’s (sic) Court … to the High Court, may be made to the Chief Judge or to the Judge of the High Court designated by the Chief Judge as the Judge in charge of administrative duties … in writing, using Form 20, if by a party to the suit, or Form 21. if by a magistrate. addressed to the Chief Registrar or to the Registrar of the court, as the case may be.”
It is important to state the procedure that follows such an application. It is

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contained in rule 5(2) which provides that:
“The Chief Registrar shall place the application before the Chief Judge. and shall transmit the order (granting or rejecting the application), sealed with the seal of the court to the Magistrate’s (sic) Court concerned and to the new court if the application be granted, for the information of the parties to the suit. The Registrar of the High Court. where the application was made to the High Court Judge, shall take similar action as the Chief Registrar.”
It will be seen from Form 20 or Form 21 that the application is a simple one addressed to the Chief Registrar or the Registrar of the High Court as the case may be. Secondly, the parties are not expected to appear before the Chief Judge or the Judge in charge of administrative duties. Thirdly, it is through the Chief Registrar or the Registrar of the High Court that the parties and the respective courts are informed of the fate of the application. It seems clear that the consideration or the application does not require any argument by the parties before the Chief Judge or the Judge in charge of administrative duties.

The function is not much more than what may be involved in assigning or reassigning a case to a court by either of these functionaries. It is therefore a simple administrative arrangement. That much is clear from the rules reproduced above. It is unnecessary for proceedings to be held to consider an application brought under rule 5. I think Nwazota. J. embarked on a procedure not provided for when he sat to hear and consider the application under the rule in open court.
Order 19. rule 8 which is in contrast with (he foregoing rule 5 provides as follows:
“8. An application for the transfer of any cause or matter from the High Court to a Magistrate’s (sic) Court shall be made in the open court and be disposed off in open  court by the presiding Judge of that court, and the decision shall have effect as an interlocutory decision of the court in the proceedings.” (Italics supplied).
The implication of rule 8 is that an application made under it is open to argument by the parties and consequently calls for a decision of the High Court in its judicial function. That is quite different from what an administrative Judge or the Chief Judge is faced with under rule 5.
The application granted under rule 5 in (his case as already said was by Nwazota, J. The lower court said as regards his position as follows:
“It is common ground that Nwazota, J. was and is still the administrative judge for Onitsha Judicial Division. The application that suit No. MO/660/92 be

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transferred to Onitsha High Court in order to be consolidated with suit No. 0/390/92 presided over by Ononiba,1. was procedurally competent.”
But it went on later to hold that the discretion to transfer a case under Order 19, rule 5 should be exercised judiciously and judicially. The ground upon which this appears to have been founded by that court was that Nwazota, J. “failed to take into account a material and relevant fact to wit, that the making of the order sought would have far-reaching effect of deciding the fate of a specific relief that fell for resolution or determination in the suit that was pending before Ononiba, J.” That relief was one of the five reliefs sought in suit No. 0/390/92 pending at the Onitsha High Court before Ononiba, J. as follows:
“An order of Court transferring suit No. MO/660/92 from the Magistrates Court Onitsha to the High Court for a just determination of the issues raised in this suit.”
I am of the view that in the circumstances of this case. the inclusion of that relief in the suit before Ononiba. J. was not capable of standing in the way of the administrative Judge in considering the application before him. The authority to transfer a case in the manner sought is not conferred on a Judge who is neither the Chief Judge nor a Judge charged with administrative duties. Ononiba,J. was not known to be either. It follows, in my view that the mere inclusion of such a relief in the suit before Ononiba. J. was not a relevant consideration for Nwazota, J. in the circumstances of his granting or refusing the application to transfer. It was a routine administrative matter unsuited for the importation of the concept of judicious and judicial exercise of discretion as it was not a judicial or quasi-judicial function properly so-called. Consequently, a decision arrived thereat is not one that is appealable to the Court of Appeal.
Under section 277(1) of the 1979 Constitution then applicable, the term “decision” by definition means in relation to a court, any determination of that court and includes judgment, decree, order, conviction, sentence or recommendation. In Kalu v. Odili (1992) 5 NWLR (Pt. 240) 130 at 189, Karibi-Whyte JSC observed that a decision within the meaning of section 277(1) of the 1979 Constitution envisages any determination on an issue joined by or litigated by the parties before the court. This of course does not exclude ex parte interim decisions that may be made by the High Court under the relevant Rules of Court or the Fundamental Procedure Rules that may be appealable by virtue of section 220(1)(g)(ii) or (v) of the 1979 Constitution. The said observation of Karibi-Whyte JSC is particularly attractive when related to the comparison between rule 5 and rule 8 of order 19 of the

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Anambra State High Court Rules, 1988. That comparison reveals a distinction between the applications taken administratively and those taken as court proceedings. It is then it is appreciated that the decisions taken in the latter circumstance qualify as decisions of a High Court from which an appeal may lie under section 220( I) of the 1979 Constitution, whereas those taken administratively do not.
The appellants have argued that the lower court was wrong to have set aside Nwazota, J.’s order of transfer. But they went further at great length to try to justify Nwazota, J.’s order on the ground that it was made in his discretion which he was said to have exercised judicially and judiciously. On the other hand the respondents’ contention is that the discretion was not so exercised. I have already shown that it is inappropriate to use the term ‘judicially and judiciously’ in reference to the exercise of powers under order 19, rule 5.

It is enough if the administrative judge or Chief Judge is satisfied that the Judge to whom he intends to make the transfer is in a position to and can conveniently take the case. When he is so satisfied and makes the transfer then it can be said he has done what he ought to. It will be undesirable. for instance, to transfer a case to a Judge who has an interest in the case or where there is evidence of a likelihood of bias.
I have no doubt in my mind that the lower court was not entitled to set aside the order in question. If it had properly considered the relevant rules 5 and 8 of order 19, it would. without going into the merit of the arguments proffered before it, have found that the order of transfer made by Nwazota, J. in the course of his administrative duties was not appealable. The appeal would simply have been struck out I therefore allow this appeal and set aside the order of the lower court with costs of N 10,000.00 t0 the appellants.