Allison Akene Ayida & Ors Vs Town Planning Authority & Anor (2013)

LAWGLOBAL HUB Lead Judgment Report

MAHMUD MOHAMMED, JSC 

The proceedings in this matter were commenced by an application for judicial review wherein the Appellants as Plaintiffs/Applicants claimed against the Respondents who were the Defendants/Respondents to the application,the following reliefs.

“1(i) An order of MANDAMUS directed to the Town Planning Authority fo rLagos State to compel the said Town Planning Authority to demolish or give orders for the demolition of the buildings on the property located at No. 14 AIdowu Martins Victoria Island, Lagos Forthwith or (in the alternative) after service of necessary notice or as the Court should direct;

(ii) A declaration that the occupation of the buildings located atNos. 14A and 14B Idowu Martins Street, Victoria Island, Lagos by the 2nd Respondent (Mega Investments Limited) through its tenants, licensees, or other persons constitutes a contravention of regulation 29(1) of the

Town and Country Planning (Building Plan) Regulation Cap188, Laws of Lagos State of Nigeria, 1994;

(iii) An order of mandatory injunction commanding the said 2nd Respondent to take forthwith all lawful steps to remove all tenants, licensees and other persons put by it in occupation of the said building or any portion thereof and

(iv) An order of prohibitory injunction restraining the 2nd Respondent from granting occupational rights in the said buildings to tenants, licensees or other person without a Certificate of Completion and Fitness for Habitation issued by the Town Planning Authority.

(v) A declaration that the Town Planning Authority for Lagos State has no power to waive or to grant the 2nd Defendant any liberty to dispense with that Defendants obligation to comply with the requirements of Section 42(1)(a) of the Town and Country Planning Laws as the provisions of the said sub-section apply to the buildings at Nos. 14A and 14B, Idowu Martins Street,Victoria Island, Lagos;

(vi) A declaration that the development and the entry into occupation as well as the continuing use by the 2nd Respondent of the premises at Nos. 14A and 14BIdowu Martins Street, Victoria Island, Lagos is illegal and unlawful as it constitutes a contravention of the provisions of Section 42(1)(a) of the Town and Country Planning Law and Regulations 29(1) 38(16) and 38(18) of the Town Planning (Building Plan) Regulations;

(vii) An injunction restraining the 2nd Respondent, its servants, agents and licensees from using or continuing to use the buildings located at Nos. 14A and 14B Idowu Martins Street, Victoria Island, Lagos, otherwise than for residential and other non-commercial purposes.”

It is clear from the record that the principal relief claimed at the trial Court by the Plaintiffs/Applicants, was one of mandamus in relief (i) while all the remaining reliefs (ii) -(vii), were merely claimed in the alternative in the event of their failure to succeed in relief (i). The 2nd Respondent as a Defendant in the matter, in addition to meeting the case of the Plaintiffs/Appellants on the merit in its defence, also raised an issue of law touching on the legal entity of the 1st Respondent. On 7th April, 2011, the learned trial Judge after hearing the parties on the reliefs sought by the Plaintiffs/Applicants in their application in his judgment in the matter came to the decision that the Appellants/Plaintiffs were not entitled to the order of

mandamus as sought and consequently refused the grant of that principal relief. The learned trial Judge also in that judgment came to the decision that the Appellants/Plaintiffs had not been able to establish their alternative claims and accordingly dismissed the Appellants/Plaintiffs claims in their entirely.

Dissatisfied with the judgment of the trial Lagos High Court, the Plaintiffs/Appellants appealed to the Court of Appeal Lagos Division which after hearing the parties on their respective briefs of argument, in a unanimous judgment delivered on 17th July, 2002, dismissed the appeal and affirmed the judgment of the trial Court on the main relief and alternative reliefs claimed by the Plaintiffs/Appellants. Aggrieved by the decision of the Court of Appeal, the Plaintiffs/Appellants are now on a further and final appeal to this Court by a Notice of appeal dated 20th August, 2002 containing 5 grounds of appeal. In this appeal, the Appellants brief of argument filed in support of the same contains 3 issues for determination of their appeal. The issues are –

‘(1) Whether Nigerian law requires that an applicant for an order of mandamus must establish that he made a prior demand for performance of the duty sought to be enforced and the authority concerned refused to comply with the demand.

(2) Whether the Court below erred in holding that the High Court was right to have invoked the provision of Edict No. 2 of 1998 and hold that Edict had effectively revoked Section 42 of the Town and Country Planning Law (TCPL)

(3) Whether the Court below erred in law in refusing to grant the alternative reliefs for declaration and injunction as claimed by the Appellants.’

These 3 issues in the Appellants brief of argument were adopted by the 1st and 2nd Respondents in their respective briefs of argument.

The dispute between the parties in this appeal arose from the action of the 2nd Respondent in this appeal, Mega Investment Limited in pursuing its land development programme on properties Numbers 14A and 14B Idowu Martins Street Victoria Island, Lagos which were being used for residential purposes but the 2nd Respondent had acquired and converted for commercial purposes as Mega Plaza without a prior written approval of the Planning Authority of Lagos State. The Appellants felt aggrieved and two of them the 1st and 4th Appellants by a letter to the then Military Administrator of Lagos State complained that the two one story residential houses in question were demolished by Mega Plaza Limited and in their places now the Complainants described as imposing and intimidating four story structure on the site of one of the demolished building. The other premises according to the Complainants, contains structures fitted with stalls for open shopping while the main building stood in the area like an intimating colossus in the midst of a conglomerate of peace loving dwarfish residential houses. The Complainants therefore pleaded with the Military Administrator of Lagos State to use his good offices as the Chief Executive of the State to compel Mega Plaza Limited to convert its building structures at 12/14 Idowu Martins Street, Victoria Island, Lagos, to luxurious apartments as initially authorized or in the alternative to effect the demolishing of the structures on the grounds of the alleged violations of Physical Planning and Environmental Authorities Bye-Laws and Regulations of Lagos State. The Plaintiffs/Appellants were therefore in Court to actualize their demands when there was no positive response from the Military Administrator.

On the 1st issue of whether Nigerian law requires that an applicant for an order of Mandamus must establish that he made a prior demand for the performance of the duty sought to be enforced and the authority concerned refused to comply with the demand, the learned Counsel to the Appellants pointed out that the Court below did not deal with the question of mandamus satisfactorily because the purpose of judicial review of the acts of public and administrative authorities is to ensure not only that the scope and limits of statutory powers are not exceeded by such authorities and bodies but that they abide by the law; that the Courts can make the orders of certiorari,prohibition, Mandamus and Habeas Corpus to compel public authorities and bodies to perform or not to perform those duties, actions or omissions which bylaw they are required to perform. Learned Counsel insisted that Mandamus is not and has never been a creature of common law but of equity because the Supreme Court Ordinance of 1914 by which the Statute of General Application and principles of Equity came into force on 1st January, 1914 and by which the equitable remedies of Certiorari, Prohibition, Mandamus and Habeas Corpus lie, are all equitable and discretionary remedies under the principles of equity and not the common law and therefore Mandamus being an equitable remedy does not require demand to amend before asking for the relief. Learned Counsel relied on Monograph by C. Lewis on Judicial Remedies in Public law 2nd edition published in 2000 at pages 199 – 200 paragaphs 6 – 63; Volume 52 of the 2nd edition of American Jurisprudence page 414 paragraph 91 and what the learned authors of Corpus Juris Secundum said at paragraph 32 of volume 55 and argued that no demand to amend is required before application for Mandamus is made in Nigeria as the decision of this Court in Fawehinmi v. Akilu (1987) 4 N.W.L.R. (Pt.67) 797 at 834 is merely an orbiter – dictum which is not binding on the issue now before the Court. Learned Counsel referred to the provisions of Section 6(6)(b) of the 1979 Constitution which extends the judicial powers of Courts to all matters between Government or authority and any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to civil rights and obligations of that person, to allow a common law rule to restrict persons right to apply for an order of Mandamus against a public authority, is to attempt to curtail a right guaranteed by the Constitution. The case of Adeniran v. Interland Transport Ltd. (1991) 9N.W.L.R. (Pt. 214) 155 at 178 was cited where this Court dealt with restriction of the right of a citizen to have access to Court to abate public nuisance. Learned Counsel concluded his arguments on this issue and urged this Court to resolve the issue in favour of the Appellants.

For the 1st Respondent however, it was submitted that an order of Mandamus like any other prerogative order is granted at the discretion of the Court and not as a matter of course; that in the exercise of its discretion the Court is guided by laid down principles or conditions which have received judicial blessing as in Shitta-Bey v. Federal Public Service Commission (1981) 1 S.C. 40; that one of such conditions or requirements to be fulfilled before an Applicant may be entitled to an order of Mandamus is that there must have been a demand or request by the Applicant and a refusal or neglect by the Respondent to perform a public duty as stated in Fawehinmi v.Akilu (1987) 4 N.W.L.R. (Pt. 67) 797. Learned senior Counsel for the 1st Respondent observed that a careful study of the scholarly expositions by learned authors of the publications on Mandamus relied upon by the Appellants, had revealed that contrary to the stand of the Appellants Counsel, the general principle of law relating to demand and refusal’ as a requirement for an order of Mandamus have remained unchanged but only modified or restricted by the learned authors of the monographs in the case of duties owed to the general public and where there is no one especially empowered to demand performance of the duties. With regard to the decision of this Court in Fawehinmi v. Akilu (supra) on the requirement of demand and refusal by an Applicant for Mandamus to be entitled to relief, learned Counsel said though the observation is obiter-dictum in that case, the pronouncement of this Court on the subject represent the general principle of law relating to grant of order of Mandamus in Nigeria; that to come within the ambit of the limitation or exception to the general principle stated in the scholarly monographs cited by the Appellants Counsel which are of persuasive authorities to this Court, an Applicant must prove to the satisfaction of the Court that the duty sought to be enforced is of public nature affecting the people at large and not few individuals as in the present case where the duty sought to be enforced does not affect generally the people of Lagos State or even Victoria Island but only a few individuals comprising the Appellants. The recent decision of this Court in ChiefOhakim v. Chief Agbaso (2010) 6-7 S.C. 85, where this Court made the requirement of demand and refusal a condition precedent to bringing an action for a Prerogative Order of Mandamus, was cited by the learned senior Counsel inurging this Court to resolve this issue against the Appellants particularly when the case of Adeniran v. Interland Transport Ltd. (1991) 9 N.W.L.R. (Pt.214) 155 referred by the Appellants Counsel what this Court was faced within that case, related to the rule of law that a private person cannot sue innuisance except at the relation of the Attorney General.

On this first issue for determination,learned Counsel to the 2nd Respondent had observed that from the record, it is quite clear that all parties in this appeal are ad-idem on the point that prior to the commencement of the proceedings leading to this appeal, no demand was made on the 1st Respondent by the Appellants for the performance of the duty now sought to be enforced by the proceedings culminating in this appeal; that the argument of the Appellants on this issue is misconceived because even if the argument of the Appellants that the requirement of demand and refusal as laid down in Fawehenmi v. Akilu (supra) isa mere obiter-dictum, the judgment of the Court below nonetheless stands as that Court did not apply that case as a binding authority on the subject. Itwas the contention of the 2nd Respondent that the requirement of demand and refusal laid down in Fawehinmi v. Akilu (supra),whether orbiter or not, represents the position at the common law and therefore applies to Nigerian Courts. Halsburys laws of England 4th Edition Vol. 1 page 134 at paragraph 124 wasalso relied upon by the 2nd Respondent where a number of English decisions were reviewed to the effect that demand for performance must precede application for judicial review of Mandamus. This position, according to the learned Counsel accords with the decision of this Court in Fawehinmi v. Inspector General of Police (2002) 7 N.W.LR. (Pt. 767)606 at 697 – 698 and the decision of the Court of Appeal in Atungwu v.Ochukwu (2000) 1 N.W.LR. (Pt. 641) 507 at 516 – 517 and therefore urged this Court to resolve the issue against the Appellants.

As rightly observed by the learned Counsel to the 2nd Respondent, part of the decision of the Court below that gave rise to this first issue for determination in this appeal is contained in the judgment of Oguntade JCA (as he then was) at page 702 of the Record of appeal where

he summed up the case of the Appellants, after distinguishing the requirement in their case from that of the requirement of a pre-action notice prescribed by Statutes, he observed –

The case relied upon by Chief Williams SAN i.e. Adeniranv. Interland Transport Ltd. (supra) relates to the right of a citizen to bring an action in nuisance as it is affected by the distinction whether it is a private or public nuisance and the necessity for the Attorney general to bring a related action.

But in this case, I deal with the claim for Mandamus. The necessity for a prior demand and refusal is understandable as it forms an integral part of the Plaintiffs case. In the instant case the essence of the claim of the Plaintiff was that a public body which had duties imposed on it by law failed to perform that duty. The insistence that a demand and refusal be shown before a suit is brought is part and parcel of what the Plaintiff needs to prove to show that indeed a case for the issuance of an Order of Mandamus has Arisen. It is not in the character of pre-action notice.

The question is what is this Order of Mandamus? The Prerogative Order of Mandamus commands any person or body to whom it is directed to perform a public duty imposed by law. In other words the writ will lie where a Government agency like the 1st Respondent in this case, the Lagos State Town Planning Authority, has failed to exercise its discretion at all or where the

exercise has been absurd or abused as claimed by the Appellants in this case. In which case the agency will be directed to exercise its duty properly. In Nigeria, at least in so far as statutory bodies like the 1st Respondent and other bodies created by the Constitution of the Federal Republic of Nigeria are concerned, Nigerian superior Courts will Order Mandamus to such bodies to compel them to carry out the duties assigned to them in accordance with the Constitution or the statute creating them. See Bashir AladeShita-Bey v. Federal Public Service Commission (1981) 1 S.C. 40 at 57 – 58. Therefore the first relief of Mandamus sought by the Appellants at the trial Court was quite within the powers of the trial High Court to grant it. The only question was whether the Appellants had satisfied the requirements for the grant of such relief for the trial Court to exercise its discretion in their favour. While the Respondents in this appeal which were the Defendants at the trial Court urged the trial Court to refuse the Plaintiffs/Appellants application for the reason that there was no demand on the 1st Respondent to perform the duty sought to be enforced by the Appellants and the 1st Respondent refused to comply, the Appellants were of the strong view that the law does not require them to comply with this requirement before the Order of Mandamus sought by them could be issued in their favour by the trial Court. Both the trial Court and the Court below thought that the Respondents were correct on their stand that in Nigeria before an Order of Mandamus can issue, there must be a demand to perform the duty sought to be enforced followed by refusal to perform. This position was endorsed by this Court in its decision, though obiter-dictum in the case of Fawehinmi v. Akilu (1987) 4 N.W.L.R. (Pt. 67) 797 at page 834 where Obaseki JSC said-

The Court may refuse to make an Order of Mandamus:

(1) Unless it has been shown that a distinct demand for performance of the duty has been made and that the demand has deliberately not been complied with -R. V. Witts& Berks Canal Co. (1835) 3 Ad & EC477; R. V. Stoke-On-Trent Town Clerk (1912)2 KB518;

(2) Where there is undue delay;

(3) Where the Applicants motives are unreasonable’

This statement by Obaseki JSC on the requirement for performance of the duty sought to be enforced and deliberate refusal to comply as condition for the grant of an Order of Mandamus, might have originated from the position on the subject as expressed in Halsburys Laws of England 4th Edition Volume 1 page 134 paragraph 124 where the authors said on the Order of Mandamus as follows-

‘As a general rule, the Order will not be granted unless the party complained of has known what it was he was required to do, so that he had the means of considering whether or not he should comply, and it must be shown by evidence that there was a distinct demand of that which the party seeking the Mandamus desires to enforce and that demand was met by refusal.’

In addition, this general rule on the grant of Order of Mandamus was further endorsed by this Court in the case of Fawehinmi v.Inspector General of Police (2002) 7 N.W.L .R. (Pt. 767) 606 at 697 -698 where Kalgo JSC said –

‘The prerogative writ of Mandamus is issued or ordered by the Courts to secure or enforce the performance of a public duty. It is pre-eminently a discretionary power and the Courts will decline to award it if other legal remedies are available and effective. An Applicant for the grant of the order must show that he has sufficient legal interest to protect and that he has demanded the performance of the public duty from those obliged to do so and was refused.”

Furthermore, this requirement of demand and refusal as a condition to be complied with before bringing an action for an Order of Mandamus in Nigeria was recently applied by this Court in Chief Ohakim v. Chief Agbaso (2010) 6-7 S.C. 85 at 132 where my learned brother Onnoghen, JSC in the lead judgment said-

‘In an application for Judicial Review by way of an Order of Mandamus, the applicant is expected to fulfill certain conditions such as that which requires the Applicant to first and foremost request the public body to perform the duty in question and that body fail and or refuse to do so before an Application for Mandamus is presented at the High Court to compel performance of the said duty, xxxxx The reason why a request for performance of the official duty has first to be made before issuance of the Order of Mandamus is to offer the public body or person concerned the opportunity of making amends on performing the duty. It is only when the person or body fails or refused to do so that he or they can be compelled by an Order of Mandamus to do so. The prior demand for performance is to offer the public body the needed opportunity to perform the public duty in question or make amends.’

The position is therefore quite plain that the requirement of demand for performance of the public duty countered with refusal to perform,is part of the requirements of the law to be complied with before an Applicant for an Order of Mandamus can be entitled to that relief.

In the case at hand, it is not at all in dispute that prior to the filing of the Appellants application for the Order of Mandamus at the trial Court there was no communication between them and the 1st Respondent requesting it to perform the duty of demolishing the buildings and structures of the 2nd Respondent on Numbers 14A and 14B of Idowu Martins Street Victoria Island, Lagos and that the demand or request was refused. For this reason the trial Court was on a very firm ground in law in refusing the Appellants application for Mandamus and the Court below was equally right in affirming the decision of the trial Court on appeal. In this respect the first issue in this appeal on whether Nigerian law requires that an Applicant for an Order of Mandamus must establish that he made a prior demand for the performance of the duty sought to be enforced to comply with the demand is resolved in the affirmative. This is because without making the demand for the performance of the public duty, the body on which the order is sought,would not be in a position to take decision to comply with the demand or not,since where the demand for the performance of the duty is complied with the need to approach the Court for an Order of Mandamus to enforce compliance with the demand cannot arise.

The second issue for determination in this appeal is whether the Court below erred in law in holding that the High Court was right to invoke the provisions of Edict No. 2 of 1998 and to hold that, that Edict had effectively revoked Section 42 of the Town and Country Planning Law. In resolving this issue, it is necessary to look into the case of the parties at the trial Court.

SC. 110/2004