Association Discount House Limited Vs The Hon. Minister Of The F.c.t. & 1 Ors (2013)
LAWGLOBAL HUB Lead Judgment Report
KUMAI BAYANG AKAAHS, JSC
On 25/9/2001, the company, Synergy Trust & Investment Limited filed a motion ex parte dated 24/9/2001 at the High Court of the Federal Capital Territory, Abuja seeking an order of that court granting leave to the Applicant to issue and bring an application for the prerogative order of mandamus to compel the 1st Defendant (the Honourable Minister of the Capital Territory ) to perform his statutory duty of granting consent to the Deed of Tripartite Legal bMortgage executed in respect of the property known as Plot 2697 within A6, Maitama District covered by Certificate of Occupancy No. FCT/ABU/NG.573 dated 2/1/91 and registered as No. FC 106 at page 106 in Volume 25 in the Department of Lands Administration, Ministry of Federal Capital Territory, Abuja. The property was originally allotted to Lt. General Muhammad Inuwa Wushishi (Rtd). On 11/10/2001, the court of first instance presided over by Mukhtar J (as he then was) heard the ex parte application and granted leave to the applicant to bring the substantive application for the order of mandamus. Pursuant to the aforesaid leave, the applicant filed a motion on notice seeking the order of mandamus against the 1st respondent. The trial court heard the motion on 25/10/2001 and reserved ruling to 23/11/2001 wherein it granted the order of mandamus against the 1st respondent in the following terms:-
“It is therefore, ordered that a writ of mandamus be and is hereby issued compelling the 1st respondent to exercise his statutory public duty with regards to consent on the tripartite legal mortgage”
The court found that the 2nd respondent (the Attorney-General of the Federation and Minister of Justice) who was joined in the application had no duty to perform and accordingly struck out his name from the suit (see page 40 of the records). As at 23/11/2001, General Inuwa M. Wushishi (Rtd) the holder of the Certificate of Occupancy over the property was not a party to the mandamus proceedings. In an earlier suit instituted at the Lagos High Court as Suit No. LD/3296/2000 which the appellant abandoned, the 2nd respondent who was made a party in that suit had contested the issue of the tripartite legal mortgage.
On 11/1/2002 the 2nd respondent filed a motion dated 10/1/2002 seeking the following orders:-
(ii) An order joining the 2nd respondent as a defendant as an interested party
(ii) An order setting aside the ruling of 23rd November 2001 in which the mandamus order was made.
On 28/1/2002, the applicant in the mandamus proceedings filed Notice of Preliminary Objection urging the trial court to dismiss or strike out the application dated 10/1/2002 for want of jurisdiction in the Honourable Court. The grounds upon which the application was based were –
(i) This Honourable Court is functus officio in respect of the subject of the application of the party seeking to be joined
(ii) This Honourable Court lacks jurisdiction to entertain the said application.
The trial court heard arguments on the motion for joinder in the suit as an interested party on 29/1/2002 and adjourned to 6/3/2002 for reply but on 17/4/2002 learned counsel for the applicant argued the objection first before replying to the motion of 11/1/2002. Ideally, the Notice of Preliminary objection should have been taken first. In its ruling delivered on 21/6/2002, the court set aside the order of mandamus made on 23/11/2001 and also granted the application for the joinder of General Inuwa M. Wushishi as an interested party. The applicant was dissatisfied with the ruling of 21/6/2002 and appealed against it to the Court of Appeal which dismissed the appeal on 8/12/2005 and affirmed the decision of the trial Judge. This is a further appeal from that decision. The applicant is herein described as the appellant. The appellant formulated five issues reproduced as follows:-
- Whether the lower court was right when it affirmed the order of the trial court, joining the 2nd respondent as a Defendant in the suit.
- Whether the lower court was right when it held that the trial court was not functus officio as at the date the said court entertained and granted the 2nd respondents motion for joinder as a defendant in the suit?
- Did the 2nd respondent fall within any of the judicially recognized classes of persons who are legally qualified to be joined as parties in a suit seeking an order of mandamus?
- Whether the lower court was right when it held that the appellant concealed material facts in the application for the order of mandamus at the court of first instance
- Whether the lower court was right when it affirmed the decision of the court of first instance that the appellant failed to effectively controvert the assertion in the 2nd respondents affidavit in support of the application to set aside the order of mandamus.
The 1st respondent distilled three issues while the 2nd respondent raised two issues. The 1st respondents issues read as follows:-
- Whether having regard to the circumstances of this case the Court of Appeal was right in affirming the trial courts joinder of the 2nd respondent (Grounds 1, 2 and 4 of the Notice of Appeal )
- Whether the Court of Appeal rightly held that the trial court was not functus officio when the trial court entertained and granted the 2nd respondents motion dated 10th January 2002 (Ground 5 of the Notice)
- Whether the non-consideration of the submission of appellants counsel that the 2nd respondent did not fall within the categorization of persons who can be parties to a mandamus application occasioned a miscarriage of justice (Ground 3 of the Notice of Appeal).
The 2nd respondents issues are reproduced as follows:-
- Whether the Court of Appeal was right when it affirmed the decision of the trial court in setting aside the ruling of the trial court delivered on 23rd November. 2001 and joining the 2nd respondent as a party in the substantive suit
- Whether the Court of Appeal was right in holding that the trial court was not functus officio when it heard and granted the 2nd respondents application.
The issues framed by the 2nd respondent adequately capture the complaints in this appeal and they shall be used in the determination of the appeal.
Before going into the arguments of counsel in the appeal, it is necessary at this juncture to find out what mandamus means. Mandamus which is derived from the Latin word Mandare meaning to enjoin is an extraordinary writ issued by a court of competent jurisdiction to an inferior tribunal, a public official, an administrative agency, a corporation, or any person compelling the performance of an act usually only when there is a duty under the law to perform an act the plaintiff has a clear right to such performance, and there is no other adequate remedy available. It is also an extraordinary remedy which is issued usually to command the performance of a ministerial act. It cannot be used to substitute the courts judgment for the defendants in the performance of a discretionary act.
Learned counsel for the appellant submitted that where a suit is pending before a trial court, an intervener/interested party can only seek to join, and the court can grant the prayer for joinder when the suit is still pending before the court. Once a suit has been heard and determined, any person who was not a party to the suit bur who believes that his right has been or is likely to be affected by the decision has a right to appeal to the Court of Appeal as an interested party in order to have the said decision set aside. He argued that since the suit had already been heard and determined when the trial court made the mandamus order against the 1st respondent on 23/11/2011, the suit was no longer a pending proceeding as at 11/1/2002 when the 2nd respondent filed his motion seeking to be joined in the suit. Consequently the trial court could not exercise jurisdiction and power to make an order joining the 2nd respondent as a defendant in the suit on 21/6/2002.
It is learned counsels contention that the order of the trial court setting aside the mandamus order of 23/11/2001 is dependent on the order for joinder of the 2nd respondent and if this court sets aside the joinder of the 2nd respondent as a defendant in this suit, it means that the 2nd respondent would not be a party on record who could have validly prayed for an order setting aside the mandamus orders.
He contended that the rejection by the learned trial Judge of the appellants submission that the trial court was functus officio when it heard and granted the 2nd respondents motion for joinder as a defendant in the suit was wrong because the ruling of 23/11/2001 was a decision on the merit which was made between the proper parties and the 1st respondent has not yet challenged that decision. Since the 2nd respondent was not a party to the proceedings, he did not have the locus standi to apply to the trial court for setting aside of mandamus order and the only remedy open to him was to appeal as an interested party.
Learned counsel maintained that there are two categories of persons who may be made parties in a mandamus proceedings- the first being person(s) whose legal right is sought to be enforced, or the person(s) who will suffer if that legal right is not enforced by the court while the second category is the party who has a public statutory duty to perform which affects the legal right of the party who is seeking to enforce his legal right. He said that the person who fits into the second category is the 1st Respondent because he has a statutory duty to grant consent to legal mortgage of all land within the Federal Capital Territory and that duty is public, statutory and ministerial in nature. On the concealment of material facts, learned counsel argued that the material facts which were necessary for the consideration of the appellants application for an order of mandamus were:
(a) facts relating to the right of the appellant to enforce the performance of a public duty
(b) The public duty in respect of which the order of mandamus is sought; and
(c) Failure of a public officer to perform the relevant public duty.
He then submitted that all the necessary facts including the interest of the 2nd respondent in the property were all stated in the appellants affidavits and referred specifically to paragraphs 7, 8, 9, 10, 11, 12, 13, 14, 16, 20, 21, 23, 24, 25, 26, 27 and 31 of the affidavit in support of the appellants application for the order of mandamus and the lower court was in error in setting aside the order of mandamus partly on the ground that it was made in default of appearance of the 1st respondent when that issue was not canvassed by the 2nd respondent in seeking to set aside the order of the court of first instance.
Furthermore, the alleged material facts which were purportedly concealed by the appellant in obtaining the order of mandamus at the court of first instance were not stated at all by the court and if the court below had considered the affidavits relied upon by the appellant in opposition to the 2nd respondents application, the court would have realised that the essence of the mandamus proceedings at the court of first instance was the refusal of the 1st respondent to grant the requisite consent to the legal mortgage executed in favour of the appellant.
He therefore urged this court to hold that even if the findings of the two lower courts on the issue of concealment of facts is a concurrent finding which this court should not ordinarily interfere with, the said finding is perverse in the circumstances and ought to be set aside. He maintained that despite the affidavits wherein the appellant copiously referred to the interest of the 2nd respondent, the controversies surrounding the Deed of Legal Mortgage executed in favour of the appellant and why the order of mandamus ought to be made against the 1st respondent which were filed in support of the preliminary objection in opposition of the 2nd respondents application, the court of first instance as well as the court below acted unjustly in discountenancing the appellants ample affidavit evidence which controverted the assertions of the 2nd respondent to hold that the said assertions were not controverted by the appellant. He therefore urged this Court to allow the appeal.
Although learned counsel for 1st respondent conceded that as a general rule once a court gives a judgement in a case, it cannot thereafter revisit the judgement by giving a second one since this is consistent with the principle that there must be an end to litigation encapsulated in the Latin maxim interest republicae ut sit finis litium; he submitted that in exceptional circumstances such as where the judgement was arrived at in default of appearance or defence, the trial court has power to set it aside; likewise the trial court has an inherent power to set aside its judgement obtained by fraud or was misled into entering the said judgement due to misrepresentation or concealment of material facts. He pointed out that the judgement was a default judgement since it was entered in default of appearance and so the trial court had an inherent power to set it aside citing the cases of Aro Vs Lagos Island Local Government Council (2002) 4 NWLR (Pt.757) 385 Mohammed Vs Husseini (1998) 14 NWLR (Pt.584) 108 at 114; Okafor Vs Attorney – General Anambra State (1991) 4NWLR (Pt.200) 659 at pp 678-679.
It is also contended that the appellant concealed material facts which if available to the trial court at the time of the delivery of its ruling on 23/11/2001 it would not have granted the substantive relief sought by the appellant and the facts which the appellant concealed are:
- The fact that it had earlier filed suit No.LD/3296/2000 at the Lagos State High Court to which he made the 2nd respondent a party;
- The fact that the 2nd respondent had ever asserted that he only gave the property and the title documents together with a power of attorney to Union Trust Building Society for the management and superintendence of the property and vehemently denied ever presenting his property to secure any such facilities and also denied knowing or ever having anything to do with Tundekola Limited;
- The fact that the 2nd respondent had caused his solicitors to write to the 1st respondent not to grant consent to mortgage his property to the appellant;
- The fact that the 2nd respondent caused his solicitors to write to the police on the matter and the police, acting on the complaint of the 2nd respondent wrote to the subsidiary of the appellant i.e. Associated Discount House Limited, to surrender the 2nd respondents certificate of occupancy in its custody.
He said the appellant had knowledge of all these facts together with the fact that the 2nd respondents certificate of occupancy had been declared missing and an affidavit of loss and police extract had been made in respect thereof were contained in the statement of Defence filed by the 2nd respondent as 6th Defendant in the appellants suit in the Lagos High Court. Yet the appellant did not reveal the facts to the trial court and the court had no benefit of knowing until the 2nd respondent filed his application. If these facts had come to the fore argued learned counsel, the trial court would not have granted the relief sought in the ruling of 23/11/2001. He submitted that where the decision is one obtained in default and where vital or material facts are concealed, the trial court has the power and duty to set aside the judgement or ruling. He therefore submitted that the court below was right in affirming the trial courts decision that it was not functus offficio at the time it heard and granted the 2nd respondents motion for joinder and setting aside the ruling of 23/11/2001.
Learned counsel further submitted that there was a concurrent finding by the two courts that the 2nd respondent was a necessary party without whom the application for the writ of mandamus could not be properly and effectively determined. He contended that it is settled law that this Court will not interfere with the concurrent findings of the two courts unless such findings are perverse or unsupportable by evidence and relied on Amuda Vs Adelodum (1997) 5 NWLR (Pt.506) 480 at 487. John Amdy Sons & Co Ltd Vs N.C.R.I (1997) 3 NWLR (Pt.491) I; Animashaum Vs Olojo (1990) 6 NWLR (Pt-154) III and G.S. Pascutto Vs Adecentro (Nig) Ltd (1997) II NWLR (Pt.529) 467. He said the findings of the trial court and court of appeal that the 2nd respondent is a necessary party to the application for the writ of mandamus is not perverse but based on the accepted affidavit evidence put forward by the parties and there was no way the trial court could have properly and conclusively determined the application in the absence of the 2nd respondent since doing so would have amounted to stripping the 2nd respondent of his property in his absence.
The ruling by the trial court delivered on 21/6/2002 dealt with the motion for joinder of the 2nd respondent as well as the notice of preliminary objection which the appellant filed to strike out the motion for joinder.
In overruling the preliminary objection, the trial Judge held that the appellant/applicant concealed material facts which misled the court granting the order of mandamus and so the court was not functus officio in setting aside the order. On the joinder, the court held that the applicant is not only a necessary but a compelling party that ought to be joined because of his interest in the property in question. It is to be noted that the trial Judge did not set aside the order of mandamus because of default of appearance. It was the lower court which introduced this dimension in its judgement when it held at page 454 of the records:-
‘Therefore I answer issue No. I positively and agree with the position of the 2nd respondent that the trial court was right in setting aside the ruling delivered on the 23rd November 2001 on the ground that the appellant concealed material facts to the court. I am fortified in so holding since the judgement cannot come within the category of a final judgement being one in default of appearance of 1st respondent’
The application to set aside an order of mandamus can be brought by the party against whom the order was made. The order was made against the Hon. Minister of the FCT. Section 22(2) Land Use Act stipulates as follows:-
’22 It shall not be lawful for the holder of a statutory right of occupancy granted by the Governor to alienate his right of occupancy or any part thereof by assignment, mortgage , transfer of possession, sublease or otherwise howsoever without the consent of the Governor first had and obtained:
(2) The Governor when giving his consent to an assignment mortgage or sub-lease may require the holder of a statutory right of occupancy to submit an instrument executed in evidence of the assignment, mortgage or sub-lease and the holder shall when so required deliver the said instrument to the Governor in order that the consent given by the Governor under subsection (J) may be signified by endorsement thereon’
By section 18 (c) of the Federal Territory Act Cap 124 Laws of the Federation of Nigeria 1990, the President has delegated to the Minister of the Federal Capital Territory all functions or power relating to land in the Federal Capital Territory just like the power of the Governor to grant consent for alienation of land in the State. It is in the exercise of this power that the appellant filed the action praying the court to grant an order of mandamus to compel the 1st respondent to give his consent for the tripartite legal mortgage.
There is no dispute that the 2nd respondent being the holder of the certificate of occupancy No. FCT/ABU/NG.573 over property located at plot 2697 within A6, Maitama District Abuja had interest in the said property. The relief which the appellant sought was to compel the Minister to exercise his power to grant consent for the tripartite legal mortgage. It has been argued and rightly too that it is the holder of a statutory right of occupancy granted by the Governor that should apply for consent to mortgage the property. This does not detract from the fact that the power to grant or refuse consent to the mortgage rests with the Governor (in this case the Minister of the Federal Capital Territory). Since the appellant initiated the process by mandamus, it is only the Minister who has been made a party that can apply to set aside the order of mandamus for concealment of material facts, as there would have been no proceedings pending when the order of mandamus was granted which could accommodate the application for joinder. See: Nnaji Vs Aneke (1996) 2 NWLR (Pt.430) 269 Odeleye Vs Adepegba (2001) 5 NWLR (Pt.706) 330; Co-operative & Commerce Bank (Nig) Ltd Vs Onwuchekwa (2000) 3 NWLR (Pt.647) 65 and Kaduna Textiles Ltd Vs Obi (1999) 10 NWLR (Pt.621) 138. In Nnaji Vs Aneke (supra) it was held that an order may be made for the joinder or non-joinder of a party to a suit at any time in the course of proceedings, upon application of either party to the suit. The order for joinder will be made if the action is still pending and before the final determination by the court. The 1st respondent against whom the order of mandamus was sought could have applied for the joinder of the 2nd respondent because he was aware that the 2nd respondent had an interest in the property which was the subject matter of the tripartite legal mortgage but the application had to be made before the application for mandamus was heard. It was also held in Odeleye Vs Adepegba supra that a person can be joined as a defendant in the following circumstances namely, where the plaintiff’s case or the defendants case in the existing action cannot be effectively and completely determined without the joinder. That makes the party to be joined as a necessary party. The 2nd respondent in the present suit can best be described as a desirable party because his interest in the property to be mortgaged is not in doubt and so will be affected by the result of the order since the property will be encumbered by the consent granted to create the mortgage. It cannot be seriously contended that without the 2nd respondent being brought in as a party, the proceedings cannot be fairly dealt with. This is the test which was adopted in Green Vs Green (1987) 3 NWLR (Pt.61) 480 to determine whether a party sought to be joined is a necessary party or a desirable party.
Having arrived at the conclusion that the 2nd respondent would at best have been a desirable party to the proceedings commenced by the prerogative writ of mandamus, it was wrong for the High Court to entertain the application for setting aside the order of mandamus granted on 23/11/2001 and join the 2nd respondent as a party to the action. The High Court had become functus officio after granting the order of mandamus compelling the Minister of the Federal Capital Territory to grant consent for the Legal Mortgage. The proceedings had been concluded and all that was left for the 2nd respondent as an interested party was to apply for leave to appeal against the order. Once a court delivers its judgement in a suit it becomes functus officio with respect to the suit. See: Alaka Vs Adekunle (1959) L.L.R 76. It cannot reopen the suit for any purpose whatsoever even by application by one or all of the parties. See: Kaduna Textiles Limited Vs Obi (1999) 10 NWLR (Pt.621) 138. There is however an exception to the statement I have just made on re-opening of the case. The exception is when any application is made to set aside the judgement for default of appearance or on account of concealment of material facts. Such application to set aside the judgement must be brought timeously by a party to the proceedings. See: Mohammed Vs Husseini (1998) 14 NWLR (Pt.584) 108 at 144: Okafor Vs Attorney – General Anambra State (1991) 6 NWLR (Pt.200) 659 and Aro Vs Lagos Island Local Government Council (2002) 4 NWLR (Pt.757) 385. If a court makes an order setting aside its judgement which is made in the absence of a clerical error or proof of fraud, the order will become a nullity. See: Adeigbe Vs Kusimo (1965) NMLR 284; (1965) All NLR 248; Abane Vs Obi (2004) 10 NWLR (Pt881) 319; Sanusi Vs Ayoola (1992) 9 NWLR (Pt.265) 275 and Ibero Vs Obioha(1994) ISCNJ 44.
Notwithstanding what I have stated above, the 2nd respondent whose interest is being encumbered is not left without a remedy since he can appeal as an interested party or institute a fresh action to contest the legality of the tripartite legal mortgage.
In the final analysis 1 find that the learned trial Judge was wrong in setting aside the order of mandamus and granting the application for joinder of the 2nd respondent. The order setting aside the order of mandamus is a nullity as the trial Judge had become functus officio when he set aside the order. The lower court was in error when it affirmed the decision of the High Court which was predicated on default of appearance by the 1st respondent without the 1st respondent making an application to set aside the order of mandamus on that score.
The appeal therefore has merit and it is allowed. I set aside the decision of the lower court which affirmed the order of the High Court of the Federal Capital Territory Abuja, setting aside the order of mandamus and joining the 2nd respondent as an interested party in suit No. FCT/HC/CV/793/2001. I make no order on costs.