Igwe M. O. Ojiako V. Attorney-general & Commissioner for Justice of Anambra State (1999)

LawGlobal-Hub Lead Judgment Report

M.D. MUHAMMAD, J.C.A.

This is an Appeal against the ruling of Ernest Egbuna J. of the Anambra State High Court. The ruling was delivered on 26th February, 1998.

The Appellants as applicants had by an ex-parte application prayed for the leave of the Trial Court to apply for an Order of Judicial review of certiorari to remove into the Court the Order of the Anambra State Chief Judge dated 3rd November, 1997 and proceedings consequent upon the Order for the purposes of quashing both. Facts of the case which brought about this appeal are hereunder stated.

The Appellants for themselves and on behalf of the Adazi-Nnukwu Community sued the Anambra State Attorney General. They took out a writ dated 30th December, 1992 to this effect. They asked for the following reliefs:

(i) Declaration that Loretto Special Science School Adazi – Nnukwu is situate at Adazi Nnukwu portion of Ndibia Land in this Judicial Division.

(ii) Declaration that the directive of the Military Administrator Anambra State which effected the change of name of the said institution from Loretto Special Science School Adazi Nnukwu to Loretto Special Science School Agulu was unconstitutional, illegal and, an abuse of Court process, null and void, of no effect whatsoever.

(iii) A mandatory order compelling/directing the Defendant to remove the word Agulu from the name of Loretto Special Science School.

(iv) An Order of perpetual injunction restraining the Government of Anambra State, their agents, privies, assigns and/or people operating under or by their directions from refering to the said Loretto Science School.

Parties to this suit No. A/331/92 filed and exchanged pleadings. They had issues joined. Prior to the commencement of hearing before Hon. Justice Uzodike, the people of Agulu having commenced a different suit No. A/139/96 had prayed to be joined as parties in the suit No. A/331/92. They also asked that the two suits be consolidated. Hon. Justice Egbue dismissed these prayers of Agulu people.

Their appeal in respect of Justice Egbue’s ruling was equally dismissed by the Court of Appeal.

Subsequently trial in suit No. A/331/92 was conducted and the matter was slated for judgment. At that stage, the Chief Judge of Anambra State allegedly issued an Order allowing Agulu people to be joined as parties to the suit commenced by the Appellants. By the same Order the suit before Uzodike J. was transferred to Hon. Justice Egbuna. The latter was to commence hearing de novo, the proceedings before the former having been terminated.

Appellants were not heard before the issuance of the Chief Judge’s Order.

The Appellants petitioned the Chief Judge. They asked for the variation of his Order. Their petition was dated 14/11/97. The petition was to no avail. The appellant’s ex-parte application dated 8/12/97 before Egbuna J. sought Order for leave to apply for the Order of certiorari in respect of both the Chief Judge’s Order and the proceeding that was to emanate from same. Appellants were to eventually pray that both be quashed.

Egbuna J. heard the Appellants application for leave to apply for the Order of certiorari and in a considered ruling concluded at Pp.21 – 22 of the Record thus:-

“This administrative transfer cannot qualify as proceedings, cause, or matter under S.2 of the High Court Edict which establishes certiorari in our law. It is pertinent to note that the said transfer was made under S. 37(1) of the High Court Edict No. 16 of 1987 … It is consequently clear that this Order of 4/11/97 cannot be the subject of an Order of certiorari being merely an exercise of administrative powers.”

The trial Judge dismissed the application. The instant appeal is against this dismissal of that application.

Parties to the Appeal filed and exchanged briefs. There was also a reply brief. These briefs were adopted before us as arguments for the appeal. The Appellants formulated two issues for determination. These are:-

(i) Whether the refusal of the learned trial Judge to grant the ex-parte application for leave to apply for an Order of certiorari amounts to a judicial or judicious exercise of discretion.

(ii) Whether the learned trial Judge ought to have limited himself to the application for leave to apply for an Order of certiorari when considering the application.

The only issue for determination presented by the Respondent is as follows:-

“Whether the learned trial Judge of the Court below was right in refusing the application of Appellants for leave to apply for the Order of certiorari having regard to the facts and circumstances of the case.”

Appellants argued their first issue thus: As applicants in the Court below, the Law placed on them the burden of proving a prima facie case. Theirs was to supply adequate material to point at and in vindication of their main application and the grant of the Order for leave became theirs. Appellants contend in their brief that they have provided the Court enough material to enable it exercise its discretion judicially and judiciously. Yet the Court refused to grant the Order for leave which by law should have been theirs.

Under their second issue for determination, appellants contend that the trial court was in serious error when it “dabbled” into the merits of the main application. Appellants referred this court to Pp. 21 – 22 of the records to this end. It is their argument that the procedure adopted by the trial Judge had placed on them a greater burden than allowed by the law in the restricted context of the application for leave. This led to the wrongful exercise of the Court’s discretion. In support of their arguments for the Appeal Appellants referred to: Aigbe v. Erhabor (1998) 7 NWLR (Pt.557) 255 at 258; Kudoro v. Alaka (1956) SCNLR 255; Awani & 3 Ors. v. Erejuwa II & Ors. (1976) 11 SC 307 at 315; and more particularly to Tabai & Anor v. Vice Chancellor Rivers State University of Science & Tech. & Ors. (1997) 11 NWLR (Pt.529) 373 at 385 and Igboho Local Government v. Boundary Settlement Commissioner (1988) 1 NWLR (Pt.69) 189.

Appellants urged us to allow the appeal by setting aside the decision of the trial court and in its place granting them the leave they were wrongly refused. They also urge us to entertain the main application for the Order of certiorari.

The Respondent argue in Reply that the trial Judge bad exercised his discretion rightly by refusing the Appellants the Order they sought. Leave of Court is not granted as a matter of routine; the trial Court had rejected the application after weighing all the circumstances of the case. The Appellants did not discharge the burden placed on them. The reasons given to warrant the appellants the Order were irrelevant. The Order of the Chief Judge in respect of which leave was being sought to apply for the Order of certiorari, Respondent contend, was an administrative act pursuant to S.37(1) and S.40 (1) of the Anambra State Court Edict. The exercise of these powers was not preceded by any decision as to bring it within the purview of certiorari. Nor can the Appellant’s claim of injury from the Order be real. Respondent concluded that since Appellants had not established a prima facie case before the trial Judge from the materials they presented, the trial court’s exercise of discretion was right. This Court cannot lawfully interfere.

The Respondent referred to the following authorities in support of arguments. Oduwole v. Hon. Justice Famakinwa & Ors (1990) 4 NWLR (Pt.143) 239; Owunari Long John v. Chief Crawford N Blakk (1998) 5 SCNJ; 69 (1998) 6 NWLR (Pt.555) 524 and Ndoma Egba v. Government of Cross River State supra.

In their Reply brief appellants argue that they needed not to make a clean and clear case on the merits to be entitled to the Order they sought. Furthermore, an application for leave to apply for the Order of certiorari should not be considered in the same manner as the application for the order itself. The trial court did just this. The trial Judge’s position only becomes justifiable only where the application was for the Order of certiorari.

Lastly, Appellants contend that since the Respondent did not answer the points raised in issue number two of the Appellants brief, the law therefore deems Respondent to have agreed with the uncontroverted submissions of the Appellants. On the whole, the trial court having exercised its discretion on the basis of wrong legal principles, it was in error and its decision should be interfered with. Appellant again referred this court to the cases: UBA v. Europharm Nigeria Limited & Anor. (1990) 6 NWLR (Pt.155) 239 at 240 and Long John v. Blakk( (1998) 6 NWLR (Pt.555) 524 at 535.

Appellants urged us to allow the appeal. We are to set aside the trial courts decision and Order. We are to grant the appellants the leave denied them. Appellants also ask us to entertain their main application for the Order of certiorari so that the Order of the Anambra State Chief Judge dated 4th November, 1997 and all such proceedings consequent upon the Order would be moved into this court and quashed.

The fundamental issue raised by this appeal is whether the trial court by the procedure it adopted had exercised its discretion judicially and judiciously. Both Counsels are ad idem that for the trial courts ruling of 26/2/98 to pass the test, it must be shown to have been an exercise of discretion based on correct legal principles.

I agree with counsel that the lower court’s decision would only be interfered with if it is shown that in the exercise of its discretionary powers the Court had acted under a mistake of Law be it substantive or procedural, or a misapprehension of the facts before it or in reaching the conclusions it did the court took into consideration irrelevant matters or its decision would work injustice to any or both parties to the matter before it. See Omadide v. Adajeroh (1976) 12 SC 87. Solanke v. Ajibola (1969) 1 NMLR 253. NAA v. Okoro (1995) 6 NWLR (Pt.403) 510; Nwankpu v. Ewutu (1995) 7 NWLR (Pt.407) 269 and Awani v. Erejuwa 11 (1976) 11 SC 301.

By these decisions a settled principle of Law has evolved which recognizes the Appellate Courts statutory powers and duty to look at the reasons for and the manner in which a trial court exercised its discretion S.16 of the Court of Appeal Act might avail the present appeal.

Taking into consideration all the facts of the instant case, one is overwhelmed by the sheer force of the arguments and submissions proferred by the appellants. The record of proceedings before us indicates that appellants had offered sufficient materials in support of their application for leave placed before the trial court. Exh. A is the statement of claim in suit A/331/92 showing who the parties to the suit were and why the suit was filed. Exh. B is the assignment order made by the Honourable Chief Judge of Anambra State which transferred suit No.A/331/92 to another Court. The Order revealed at whose instance it was issued. Exh. C. is the petition to the Chief Judge by the appellants asking for variation of the former’s Order in respect of their suit. These annextures to the appellants’ application if taken along with the oral arguments by their counsel were sufficient to establish a prima facie case. They have effectively married their facts to the Law. This was the extent of the burden which by Law appellants must discharge to attract a positive grant in favour of their application. Appellants by these materials did provide some information which tended to show the injury or some disadvantage caused them.

Yet in the exercise of his discretion at Pp.21 – 22 of the records, the judge dismissed Appellants application. The Order of the trial Judge consequent upon the exercise of his discretion as reflected on these pages leaves me in no doubt that the trial Judge had strayed and gone beyond the requirements for the order for leave to apply for the Order of certiorari. The Order of the trial Judge works injustice against the appellants. I shall give two reasons why it should not survive. Firstly, he addressed the main application which was yet to be before him rather than the preliminary application for leave to make the main application which was placed before him. The rules of procedure have been breached.

Rules of Court are in place with a purpose to serve. The purpose they set out to achieve can only be served if the court ensures their being complied with. Both litigants and the court itself are under this duty. Rules of court must not be treated with levity. They are never sacrificed for the purposes of convenience. If it becomes a necessity to compromise them, this is done to forestall injustice. See 7up Bottling Company Limited v. Abiola & Sons (Nig.) Ltd. (1995) 3 NWLR (Pt.383) 257; Adehi v. Atego (1995) 5 NWLR (Pt.398) 656 and Asuquo v. Etim (1995) 7 WLR (Pt.405) 104. It seems to me that in the instant case rules of court have been sacrificed with injustice as a consequence. A burden beyond what the Law stipulates has been placed on the appellants.

Portions of the judgments of this court in the cases of Tabai & Anor v. The VC RSVS & Tech. and Ndoma-Euba v. Government of Cross River State, supra are quite apposite. In the latter, in his characteristically succinct manner, my brother Tobi JCA had this to say:

…..once the court comes to the conclusion that the applicant has some information pointing at and in some vindication of the main application or the live issues involved in the main application, leave should be granted without much ado. The applicant need not at this stage make a clear case on the merits to deserve being granted the prayer. That had to wait till the main application is moved. The Law does not expect the Applicant to repeat this burden placed on him.

(Italics for emphasis).

Secondly, the trial court did make an Order in respect of an application not before it. Put differently, it considered an issue quite different from the one the parties presented. Not unexpectedly, the relief it granted to the litigants was neither canvassed nor solicited. Nor can the relief be said to be incidental to a principal relief which any of the parties had canvassed. A Court of Law does not operate like this. A Court is bound to make pronouncements only on such issues presented and made out by the parties. See Nneji v. Chukwu (1988) 3 NWLR (Pt.81) 184. Union Beverages Limited v. Owolabi (1988) 1 NWLR (Pt.68) 128 and Damina v. State (1995) 8 NWLR (Pt.415) 513.

The foregoing is my consideration of the issues raised by this appeal. It is glaring to me that the trial court had wrongly exercised its discretionary powers. In their reply brief appellants contend that since the Respondent did not answer the points raised in issue No.2 in the appellants’ brief, the law deems the Respondent thereby to have agreed with the uncontroverted submissions of the appellants. The issue thus should be resolved in Appellant’s favour. The appellants rely on Europharm Nigeria Limited & Anor supra.

I think there is some misapprehension as to the import of that decision. At best the appellants’ Appeal can be said to have remained unchallenged in that regard. But the law is that Appellants must succeed on the strength of their case: The soundness of the arguments in support of the two issues they canvassed entitled them to victory in this appeal. The appeal has merits. My lords, I commend its merits to you.

The decision and Order of the trial court is hereby set aside.

By virtue of S.16 of the Court of Appeal Act, an Order for leave to apply for the Order of certiorari is hereby granted and entered in place of the order of the lower court.

Appellants did urge us to entertain their application for the Order of certiorari. They seem to be a strong wicket in their reference to S.16 of the Court of Appeal Act and the decision in Igboho Local Government v. Boundary Settlement Commissioner supra. By the very decision commended to us, the Supreme Court held that an application for the judicial review of certiorari is effected by two distinct steps. In the first, an application of leave to apply for the order of certiorari is made. This application is made ex-parte, the highest court held. The second step depends on an applicant’s success at the first stage. This time around the application is on notice. Where the Court of Appeal, as in the case or the instant appeal, grants Appellants the leave to apply for the order, two alternatives are available to us; we can either remit the case back to the High Court for the second stage of the application to be conducted. Our second option is to entertain the application ourselves.

The decision of the Supreme Court recounted above must have been informed essentially by S.16 of the Court of Appeal Act. It provides thus:-

The Court of Appeal may from time to time make any Order necessary for determining the real question in controversy in the appeal, … and generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as court of first instance and… or may remit it to the court below. (Italics for emphasis).

The Section appears to me clear, unambiguous and delightful for reaching in its effects. An imperative seems to underline this provision. An attribute of this underlining imperative is the desire to enhance justice by, amongst others, reducing the cost of litigation and minimising the burden on litigants. Delay by this section can also be lessened. The special circumstances surrounding this case determine my approach in the choice of the option having granted leave to the Appellants to apply for the order of certiorari. The intention of the writers of S. 16 of the Court of Appeal Act will be served by the option. The Appellants’ application for the Order of certiorari will accordingly be heard by this court.

Appellants, because of their success in this appeal are entitled to cost, N3.000.00 is ordered in their favour.

Other Citations: (1999)LCN/0543(CA)