CORAM

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PARTIES

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APPELLANTS

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RESPONDENTS

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AREA(S) OF LAW

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CONSTITUTIONAL LAW, ADMINISTRATIVE LAW, APPEAL, PRACTICE AND PROCEDURE, CRIMINAL LAW AND PROCEDURE, FAIR HEARING, LOCAL GOVERNMENT JURISDICTION, PRELIMINARY OBJECTION, JURISDICTION

 

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SUMMARY OF FACTS

This case emanated from a judgment delivered by the Delta State High Court on July 3, 2019, in Appeal No. A/2A/2018 (sitting in appellate jurisdiction) which struck out the Appellant’s appeal against the ruling of the Magistrate Court in Charge No. CMA/H/29/2017, delivered on December 20, 2017.

The original charge at the Magistrate Court was filed by the “Medical Officer of Health” against the Appellant (Divine Victory Excel Clinic and Maternity) for allegedly failing to comply with Abatement Notice No. 4494, which required the Appellant to recall Environmental Health Officers whom they had allegedly obstructed from entering their premises. This was charged as a violation of the Environmental Health Officers Registration Council of Nigeria (EHORECON) Practice Guide and Section 68 of the Public Health Law, Laws of Delta State.

In response, the Appellant filed a Motion on Notice at the Magistrate Court on December 5, 2017, along with a Preliminary Objection, challenging the jurisdiction of the Court and the competence of the charge. The Appellant argued that the claim was unknown to law, that the Delta State Internal Revenue Consolidation Law did not stipulate payment of any fee to the Medical Officer of Health, that health matters were on the concurrent legislative list (outside the Local Government’s boundaries), and that the Delta State Ministry of Health was in charge of supervising hospitals/clinics.

However, when the case came up on December 20, 2017, the Appellant was absent from court. The Chief Environmental Health Officer representing the Respondent applied to have the Appellant’s motion struck out, which the Magistrate granted, awarding costs of N5,000 against the Appellant and ordering that the cost be paid before the Appellant could take any further step in the case.

The Appellant appealed to the High Court, arguing that it had not been served with a hearing notice for the December 20, 2017 date and that there was confusion about the correct date for the matter. While the High Court appeal was pending, the Appellant filed another preliminary objection at the Magistrate Court on January 19, 2018, which it later withdrew by letter dated March 21, 2018, and orally on May 9, 2018.

The Respondent filed a Preliminary Objection at the High Court, arguing that the appeal constituted an abuse of court process because a similar application was pending at the Magistrate Court. The High Court agreed with the Respondent and struck out the appeal, holding that the Appellant was engaging in “court shopping” by pursuing parallel proceedings in different courts.

The Appellant then appealed to the Court of Appeal.

 

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HELD

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1. The appeal was allowed.

2. The Court of Appeal set aside the decision of the High Court as well as that of the Magistrate Court.

3. The Court of Appeal ordered that the motion challenging the charge at the Magistrate Court be heard and determined on its merits by another Magistrate in the State, other than V.E. Ghomorai (Mrs.), Chief Magistrate Grade II.

4. Parties were ordered to bear their respective costs.

 

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ISSUES

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1. Whether or not the reliefs being sought in the Notice of Appeal ought and should be out-rightly granted (Ground 1).

2. Whether or not the trial Court completely breached the fundamental principles of fair hearing (Ground 2).

 

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RATIONES DECIDENDI

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CASES CITED

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STATUTES REFERRED TO

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Constitution of the Federal Republic of Nigeria, 1999 (as amended)

Court of Appeal Rules, 2021

Public Health Law Cap P.21 Vol.4, Laws of Delta State, Nigeria, 2006

Environmental Health Officers Registration Council of Nigeria (EHORECON) Practice Guide for Environmental Health Officers in Nigeria Established by Act II of 2002

Delta State Internal Revenue Consolidation Law, 2009

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