Madam Akon Iyoho V E.P.E. Effiong Esq. & Anor (2007)

LAWGLOBAL HUB Lead Judgment Report

M. MUKHTAR, J.S.C

The suit from which this appeal emanated originated in the Rent Control , Calabar, Cross River State, which ordered the appellant then the defendant to give up possession of House No. 3B Archibong Eso Lane, Calabar, in suit No. CRT/17/97. The respondents had instituted an action for arrears of rent and to recover possession from the appellant, who was his tenant. The appellant sought that the judgment be set aside, but she did not wait for the application to be heard when she filed an application for certiorari in the High Court , seeking that the judgment in CRT/ 17/97 be quashed, and she restored to possession of the premises. She granted leave and restored to possession by order of the High Court . Consequently, the respondent filed and moved an application to strike out suit No. C/MSC68/98 in which she sought for leave for an order of certiorari, but the trial Judge dismissed the application. Unhappy with the turn of event, the respondents appealed to the below, which allowed the appeal. Aggrieved by the decision, the appellant has now appealed to this court on four grounds of appeal. Learned counsel for both sides exchanged briefs of argument, wherein issue for determination was formulated.In the appellant’s brief of argument is one single issue, which was adopted by learned counsel for the respondents in their brief of argument. The issue is “whether the learned Justices of the of Appeal were right in law when it (sic) held that the period allowed for appeal in Order 43 of the High Procedure Rules of Cross River State must expire before the appellant herein can seek the remedy of Judicial Review particularly that of certiorari. ” The motion ex-parte for leave to apply for an order of certiorari under Order 43 rule 3 of the High Civil Procedure Rules of Cross River State, reads:

“TAKE NOTICE that this Honorable will be moved on Tuesday the 21st day of April, 1998 at the hour of 9 o’clock in the forenoon or so soon thereafter as the applicant or counsel on her behalf can be heard for an order that the applicant be granted leave to apply for an order of certiorari to bring into the High Court of Cross River State Calabar, for the purposes of its being quashed the decision or judgment of the 1st respondent or the orders contained therein in suit No. CRT/17/197 entered on 6th April 1998 and dated 9/4/98 giving possession of the applicants 5 bedroom BUNGALOW TO THE 2nd respondent and thereby depriving her and her children of the comfort of her only home and property for the reasons that the said judgment was entered without jurisdiction and for being in violation of the applicant’s right to fair hearing in that suit No. CRT/17/97 was adjourned to the 30th April, 1998 for mention or hearing; and upon the grounds set forth in the statement pursuant to Order 43(3) (29) HCCPR served along herewith.

(2)2 An order for stay of all proceedings, sale or other acts from the Rent Control .”

The motion ex parte was granted, and the enrolled order drawn in respect of the motion contained the following orders:

“1. That the applicant’s application for leave to apply for an order of certiorari to being quashed the judgment delivered by the 1st respondent on 6/4/98 in suit No. CRT/17/97 SHALL BE AND IS HEREBY GRANTED.

2. That AN ORDER FOR STAY of all proceedings, sale of other acts from the Rent Control SHALL BE AND IS HEREBY IMPOSED.
3. That the applicant’s application for reinstatement into her home SHALL BE AND IS HEREBY GRANTED as prayed.
4. That the applicant’s properties carted away SHALL BE PRESERVED by returning same to her forthwith.”

Then a motion on notice for the order of certiorari. The main body of the motion on notice is as in the motion ex-parte, which has been reproduced above. The pertinent depositions in the supporting affidavit read as follows:

3. That in 1975, based on a lease relationship between Madam Theresa Asuquo Robert Effiong and myself I proceeded to put up a cement block building for my occupation and that of my children.
4. That after completing the building in December 1975, I moved into it with my family and remain in peaceful occupation of the same without any interruption by any person or group.
5. In 1995, my landlady died and the said Mrs. T. A. B. Effiong, and I took part in her funeral obsequisies, thereafter I continued in peaceful occupation until 1995 when the 2nd respondent and his fellow conspirators invaded my privacy in an attempt to impose themselves on me as the new landlord which attempt I resisted, and they left because I did not know them.
6. About 10th January 1997, the 2nd respondent sued me before the Rent Control, Calabar zone claiming possession of my house.
7. Whilst this case was pending, Mr. Michael Effiong Bonnie the son and successor to my landlady applied to the court to be joined as a defendant in the case. The motion paper together with the affidavit is attached hereto as “exhibit A”.
8. The motion in “exhibit A” is still pending the decision of the 1st respondent before the case in CRT/17/97 court proceed to hearing.
9. Subsequently, my counsel on 14/10/97 raised objection to the competence of the 2nd respondent as seen on record to sue which objection was overruled on the 15th October, 1997.

10 I instructed my counsel to promptly appealed (sic) against the ruling which they did on the 15th day of October 1997, with proper fees and recognizance duly entered into by me to prosecute the appeal. The notice of appeal served on the 2nd respondent is attached as exhibit “B”.

11. The ruling of the 1st respondent in the matter referred in paragraph 10 of this my affidavit is attached hereto as exhibit “C”. 12.
12. That the said appeal in paragraph 10, is still pending decision in the High Court of Justice, Calabar.
13. That despite appeal the 1st respondent refused adjourned the case sine die as was requested by 2nd respondent’s counsel Eta Okon and proceeded to adjourn the case to the 21st October, 1997 despite the fact that my counsel S. U. Ndah of Godwin U.Onwong & Company drew her attention to the provisions of S.39 the Rent Edict, which says that appeal operates as a stay of proceedings.
14. It was this attitude of the 1st respondent that made me to instruct my counsel to seek an order for stay of proceedings in CRT/17/97 before the High Court, Calabar, but on the 30th March, 1998, the application struck out by Uke J., sitting in Court5 on the grounds that the application should first have been made application to High .
15. That prior to this ruling by the High Court No.5, my counsel Godwin U. Oyong of Godwin U. Oyong & Co. was before the 1st respondent on the 19/3/98 and she had adjourned the case CRT/97 to the 30th April,1998, and I was preparing to attend on that day.
16. That in the morning of 14th April, 1998 I woke up with my children and whilst I left for farm, my children went to school.
17. That on my return I saw policemen cordon off my house and when I went near,they threatened me so I ran away for dear life, and took refuge in a neighbour’s compound who told me that a pickup van had earlier removed my (sic) from my house and that some people in plain clothes were busy packing out other properties of mine.
18. That my children were all away at school, and there was no person left as I was the last person that locked the door, and had the key.”

The learned counsel for the appellant has urged that the learned Justices of the Court of Appeal erred in law and on the facts when they set aside the decision of the High Court and affirmed the order of the Rent Control, and failed to appreciate that there is a technical difference between Judicial Review and appeal. He went on to state the description of Judicial Review in the Oxford Dictionary of Law, 4th Edition as the simplified procedure by which since 1997, prerogative and other remedies have been obtainable in the High against inferior, tribunals and administrative authorities. According to learned counsel, on an application for Judicial Review of a decision, the court may grant the remedies of certiorari, mandamus, prohibition, declaration injunction and may award damages.

The learned counsel for the appellant referred to the book, Administrative Law, 2nd Edition, P.P. Craig page 6, where the author distinguished an appeal and a review thus:

“There is a distinction between appeal and review. The former in sense that the appellate can substitute its own opinion for that of the initial decision maker. Appeals can lie on fact and law, or simply upon law. Such rights of appeal are statutory and the possess no inherent appellate jurisdiction. Review is at least in theory, quite different from this. It is concerned not with the merit of the decision, but with its validity or with the scope of the agency’s powers.”

The learned counsel for the appellant has argued that the High of Justice has supervisory jurisdiction over the way and manner the Rent Control uses its powers. It has a duty to tell the court not to act ultra vires its powers and to quash any such abuse of powers. According to him, in this case, the appellant’s possessory right had clearly been abused and the Rent Control had not acted properly, so the High Court acted properly in quashing the decision of the Rent Control Court. Section 6(6)(b) of the 1999 Constitution was referred to by learned counsel for the appellant, and he has urged that the Rent Edict, 1985 supra cannot restrict the right of any citizen to go to Court. According to him the provisions of the Rent Edict which is a State law, cannot derogate from the provisions of the Constitution, which allows citizens the rights to go to court without any restriction. Learned counsel further argued that the provision of the Edict is permissive because it uses the word ‘May’. He placed reliance on the case of Ziza v. Mamman (2002) 5 NWLR (Pt. 760) page 243. In their brief of argument, the respondent’s argument revolved only on the interpretation of Order 43 rule 3(6) of the High Court Rules of Cross River State. The rule states as follows:

“Where leave is sought to apply for an order of certiorari to remove for the purpose of it being quashed any judgment order, conviction or other proceedings which is subject to appeal and a time is limited for the bringing of the appeal, the court may adjourn the application for leave until the appeal is determined or the time for appeal has expired.”

Learned counsel for the respondent has submitted that the Court of Appeal was right to hold that the application for leave brought within 14 days before the expiration of the date allowed for appeal had expired was wrong. Learned counsel further submitted that the wordings of Order 43 rule 3(6) of the High Court Rules supra were very clear, unambiguous, and admits of only one interpretation. He placed reliance on the cases of Adisa v. Oyinwola (2000) 10 NWLR (Pt. 674) page 116; and Amadi v. N.N.P.C. (2000) 10 NWLR (Pt. 674) page 76. Indeed, the whole appeal revolves around Order 43 rule (6) of the High Court Rules of River State and is predicated on its

interpretation by the lower, and so I will dwell on this order by first of all reproducing the pertinent provisions of Order 43, hereunder. They read:

“43 r 3(1) No application for judicial review shall be made unless the leave of the court has been obtained in accordance with this rule.

(2) An application for leave shall be made exparte to the court, and shall be supported

(a) by a statement, setting out the name and description of the applicant, the relief sought and the grounds on which it is sought; and

(b)by affidavit, to be filed with the application verifying the facts relied on.

(3)The applicant shall file the application not later than the day before the motion is heard and shall at the same time lodge copies of the statement and every affidavit in support.

(4)The court hearing an application for leave may allow the applicant’s statement to be amended, whether by specifying different or additional grounds of relief or otherwise on such terms, if any, as it thinks fit.

(5)The court shall not grant leave unless it considers that the applicant has a sufficient interest in the matter to which the application relates.

(6)Where leave is sought to apply for an order of certiorari to remove for the purposes of its being quashed any judgment, order, conviction or, other proceedings which is subject to appeal, and a time is limited for the bringing of the appeal, the court may adjourn the application for leave until the appeal is determined or the time for appealing has expired.”

This last provision i.e. (6) above is the relevant one to this discussion, but then in such a situation, and for a clear perception of the purport of the said relevant provision, it is necessary to read the preceeding provisions of the order. As can be seen in the printed record of proceedings, the motion exparte for leave to apply for certiorari was brought under Order 43(3) and so the said Order 43 supra and its rules are the operative rules. Rule 3 (6) regulates when an application for leave for an order of certiorari can be sought i.e. at what stage of proceedings. There is plethora of authorities that has settled this issue of interpretation, which have striven to frown at the tendency to misconstrue the intent or purpose of the provision of a law and in the process import extraneous factors into it. It is settled law, that in interpreting a law, plain words must be given their plain meanings. See Lawal v. G.B. Olivant (1972) 3 SC 124; Ifezue v. Mbadugha (1984) 1 SCNLR 427; and I.B.W.A. v. Imano (Nigeria) Ltd. (1988) 3 NWLR (Pt. 85) page 633.

Indeed, learned counsel for the appellant has in her brief of argument invoked the provision of section,6(6)(b)of the 1999 Constitution which vests the courts with judicial powers for the determination of any question as to civil rights and obligation, and has argued that the Rent Edict, 1985 cannot restrict the right of any citizen to go to Court. I think the applicable Constitution in this case is the 1979 one, this action having commenced in 1997. I fail to see that this provision has relevance to this discussion. The crucial point here is the propriety of the appellant in rushing to the High court with the motion exparte, when indeed he had an appeal pending before the said High court,and the time allowed for appeal had not expired contrary to the provision of Order 43 rule 3(6) supra. Although the word ’91may’91 is used in the provision, it does not necessarily mean that it means permissible. ‘May’ in Black’91s Law Dictionary, 8th Edition page 1000 has been defined inter alia as

‘Loosely, is required to; shall; must ….. In dozens of cases, Courts have held may to be synonymous with shall or must, usually in an effort to effectuate legislative intent.”

Applying the above definition I am satisfied that the requirement of the provision of the said Order 43 rule 3(6) needs to be fulfilled. The appellant should have waited until the period allowed for appeal has elapsed. Section 39(1) of the Rent Control Edict allows 30 days within which to appeal, and that 30 days had not expired in this case before the appellant filed the application for leave to apply for an order of certiorari, contrary to the provision of Order 43 rule 3(6) of the High (Civil Procedure) Rules supra. As can be seen from the record of proceedings the judgment of the Rent Control was on 9/4/98, and the application was dated 17/4/98. In the circumstance I fail to see that the lower court, as per Edozie,JCA (as he then was) was in error when it held as follows in its judgment.

“In the instant case where the lower court granted leave for an order of certiorari to quash the decision of the Rent Control before the time limited for appeal against that decision had expired, the leave so granted was irregular and incompetent. It is therefore my view that the application for judicial review by certiorari proceedings commenced in the High court in suit No. C/MSC68/98 to quash the judgment of the Rent Control delivered on 9/4/99 before the period of appealing against that judgment is in breach of Order 43 rule 3(6) of the High

(Civil Procedure) Rules of Cross River State, 1987.”

For the foregoing reasoning, the answer to this lone issue is in the affirmative, and so ground of appeal No. (3) in the appellant’s notice of appeal, related to this issue fails and it is hereby dismissed.

Before I conclude this judgment, I would like to visit the appellant’s notice of appeal on pages 238 – 242 of the printed record of proceedings, which contains four grounds of appeal. The whole discussion supra centers around only one ground of appeal i.e. ground (3), from which the lone issue has been distilled, and which the argument in the appellant’s brief of argument covers. No issues were formulated in relation to grounds (1), (2) and (4), and so no argument was proffered to cover them, which situation translates to the fact that the said grounds of appeal have been abandoned. The position of the law is that a ground of appeal from which no issue has been distilled and upon which no argument have been canvassed is deemed abandoned by an appellant, and so should be struck out. In this wise grounds (1), (2) and (4) of appeal in the appeal are struck out. See Aro v. Aro (2000) 3 NWLR (Pt. 649) page 443; J.E. Elukpo & sons Ltd. v. F.H.A. (1991) 3 NWLR (Pt. 179) page 322; and Ikpuku v. Ikpuku (1991) 5 NWLR (Pt. 193) page 57.

The end result of this appeal is that it fails in its entirety and it is hereby dismissed. The judgment of the Court of Appeal is hereby affirmed. I assess costs at N10,000.00 in favour of the respondents against the appellant.

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SC.326/2001