Mr. Efiok Archibong V. Ita Nkan (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

KUMAI BAYANG AKAAHS, J.C.A. (Delivering the Leading Judgment)

This appeal is rather unique and quite novel in the application of prerogative orders. It concerns the propriety or otherwise of granting an order of mandamus compelling the appellant to collect N1.3 million and return a gas storage tank to the Respondent.

The applicant who is now the Respondent to this appeal obtained leave in Suit No. HU/MISC 239/09 in the Akwa Ibom State High Court, Uyo on 30/4/07 to enforce the following reliefs against the Respondent/Appellant:

(a) A mandatory order compelling the Respondent who was plaintiff in Suit No. HU/217/2005 to comply with the judgment orders of this Honourable Court by receiving the final instalment sum of N1.3 million together with N5,000.00 cost awarded him in the judgment in the said suit.

(b) A mandatory order compelling the Respondent to release forthwith the gas storage tank with all components in good operational condition, which was the subject matter of Suit No. HU/217/2005 to the Applicant who was Defendant in that suit as clearly directed and ordered by this Honourable Court in the judgment delivered on the 26/4/06 by the Honourable Justice Charles U. Ikpe.

The Respondent filed his motion on Notice on 30/3/09 while the Appellant filed his application on 11/5/09 asking the court to set aside the leave granted the Respondent to apply for the order of mandamus. The two applications were consolidated and heard together (see page 123 of the records). In his Ruling delivered on 12/8/09, the learned trial Judge ruling on Section 21(1) High Court Law of Akwa Ibom State found that the applicant in the motion of 30/4/09 has a specific legal right to enforce. He held after citing the case of FAWEHINMI v IGP (2002) 7 NWLR (Pt. 767) 606 that:

“Although there are judicial pronouncements that there should be a public duty, it must be noted that this is a case covered by statute which specifically provides for and gives jurisdiction to the court to make an order of mandamus requiring any act to be done without laying down conditions as to public or private acts.”

He proceeded thereafter to dismiss the motion filed on 11/5/09.

Being dissatisfied with that ruling, the Appellant appealed to this court in the Notice of Appeal of the same date containing three grounds of appeal and set down the following three issues for determination:

i) Whether the learned trial Judge properly assumed jurisdiction to make the order of mandamus against the Appellant who owed no public duty to the Respondent or anybody else at all except his private discretionary rights.

ii) Whether the learned trial Judge was right to rely on the High Court Law and Rule of Akwa Ibom State Cap. 55 and entered judgment for the Respondent instead of being bound by the decision of the Supreme Court’s cases cited and including the case of ABBEY v LEX (1999) 73 LRCN (Vol. 73) 3471.

iii) Having regard to the judgment order in Suit No. HU/217/2005, and the post judgment agreement made by the parties, whether the trial Judge was right to make an order of mandamus compelling the appellant to accept the sum of N1.3 million as representing the final payment of the judgment sum awarded in the said suit.

The Respondent identified two issues and they are –

(i) By the combined provisions of Sections 21(1) and 23 of the High Court Law Cap 55 Laws of Akwa Ibom State 2000, does the Akwa Ibom State Law in any way limit the making of an order of mandamus only to acts of a public nature or only to where there is a public duty to act?