Jos – A High Court Judge, Justice Ishaku Kunda has ordered a medical Doctor to defend himself in the alleged adultery charge before an Upper Area Court in Jos.
Justice Kunda made the declaration on March 28 in his judgment on a Fundamental right suit brought before him by the Medical Doctor, Dr Machael Owoicho-Odeh, accused by Mr Maduabuchi Orji of having an affair with his (Orji’s) wife, Sharon, a patient of the Doctor (Owoicho-Odeh)
Justice Kunda cited Section 9 of the Area Court Law.
TI 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 good 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.
He held 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 Dec.20, 2019 dismissing the Notice of Preliminary Objection dated Sept. 6, 2019.
He 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.
“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, which the applicant failed to do.
“In view of the above position, I 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, and 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 (Sole Judge) 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 and is hereby dismissed for lack of Merit, ” the Judge held.
Our Correspondent reports that Owoicho-Odeh, a Jos based Medical Doctor filed the Fundamental rights suit seeking for declaratory reliefs and an Order dismissing the charge of adultery.
The suit is between him and the Commissioner of Police in suit No. UACI/CR.90/2017 before Hon. Lawan Suleimain, who is the Sole Judge of Upper Area Court 1, Kasuwa Nama, Jos and the 1st Respondent in this matter before Kinda.
The medical doctor prayed the 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),
He sought a declaration that the ruling of the 1st Respondent (Sole Judge) delivered on December 20, 2019 in suit No. UACR/CR90/2017 dismissing the Applicant’s Preliminary Objection dated Sept. 6, 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 (CP) 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;
He argued that his (Owoicho-Odeh) continued trial by the 1st Respondent (Sole Judge) and prosecution by the 2nd Respondent (CP) 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)
He prayed for 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.
But Counsel to the 1st and 2nd Respondents, Mr N.D. Dashe of the State Ministry of Justice and Mrs Alex Muleng, O.C. Legal, Police Force, Plateau State Command object to the application and asked the court to dismiss it for lack of Merit.
In the other case, suit No. UACI/CR90/2017, at Kasuwa Nama Upper Area Court, Owoicho-Odeh (the Applicant) was arraigned on First Information Report (FIR) and charged on allegations of seduction and adultery, offences, punishable under section 387 and 389 of the Panel Code.
The Police prosecution in that case was led by Mrs Alex Mulleng, O.C Legal, Nigrian Police Force, Plateau State Command, while Mr Joseph Danboyi led the defense for the doctor, the accused.
Our Correspondent reports that at the close of the Prosecution’s case, the applicant made a no case submission but it was overruled by the 1st Respondent (Sole Judge) 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.
Danboyi quickly filed a Notice of Preliminary Objection to the trial before the 1st Respondent, which was refused and subsequently 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).
As it’s, the medical doctor has no option but to go and answer for the charges of seduction and adultery before the Upper Area Court 1, Kasuwa Mama.
