Umeano & Ors V. Anaekwe & Anor (2022)
LAWGLOBAL HUB Lead Judgment Report
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.
The appellants were plaintiffs at the trial Customary Court (CC) Akwuzu, Anambra State in Suit No. CCA/2/92: Alexander Umeano & Ors Vs Albert Anaekwe & Anor wherein they sought the following reliefs:
(a) Defendant to remove the Iyi-Oji Juju, which was planted by the defendants’ great-great-grandfathers on Obinuno Land of the Plaintiffs.
(b) Defendants to release the ownership of Obinuno Land of the Plaintiffs.
(c) An order of Court restraining the Defendants, their servants, privies and agents from further trespass into the said land of Obinuno situate at Ifite Village, Akwuzu.
Before the trial commenced, the respondents raised an objection to the participation of the president of the Court in the proceedings on grounds of bias. The objection was overruled and the Court proceeded to hear and determine the case. Judgment was entered in the appellants’ favour in terms of reliefs (b) and (c). Relief (a) was refused. Despite the order restraining them from further trespass on the land, the respondents again trespassed into the land in dispute. The appellants therefore brought contempt proceedings against them before the same Customary Court. Notwithstanding, the earlier objection seeking the President’s disqualification from the panel, he presided over the contempt proceedings. The application seeking the respondents’ committal for contempt was refused. In the course of ruling on the contempt proceedings, the president made certain orders that materially altered the judgment it had earlier given. In its ruling, the Court held that the respondents were prohibited from entering Iyi-Oji Juju bush to harvest any trees with the exception of the juju priest. The Court further held that “the applicants (appellants herein) may enter the juju bush, which is on their land to take anything but with the consultation of the juju priest – Court did not give anybody authority to enter and clear the Iyi-Oji bush.” This was clearly an about-turn from the refusal of relief (a) in the original judgment.
Being seriously aggrieved by the decision of the Customary Court, the appellants applied to the High Court of Anambra State, sitting at Otuocha for an order of certiorari to remove into the Court for the purpose of being quashed, the judgment, orders and all subsequent post judgment proceedings in respect of Suit No. CCA/2/92, on the ground of bias and/or real likelihood of bias.
The High Court found that the allegation of bias or likelihood of bias as regards the judgment of the Customary Court delivered on 17/3/92 was unfounded and therefore declined the invitation to tamper with it. However, the Court held that the contempt proceedings and the ruling delivered therein on 6/5/92 were null and void and of no effect. The said proceedings and ruling were accordingly quashed.
The present respondents were dissatisfied with the order of certiorari granted by the High Court and appealed to the lower Court. On 21/7/97, the Court allowed the appeal and set aside the judgment of the High Court on the grounds, inter alia, of breach of the rules of fair hearing in that the respondents were not heard before the judgment was entered. The Court did not make any consequential order.
The appellants therefore, applied to the Court to make a consequential order, to wit, that the application for an order of certiorari be re-heard by the High Court. The appellants were granted leave to bring a fresh application for certiorari. The respondents raised a preliminary objection challenging the fresh certiorari proceedings on the ground that the proceedings were incompetent, having been filed out of time, contrary to the provisions of Order 37 Rule 4 (2) of the 1988 High Court Rules of Anambra State. The preliminary objection was dismissed. The application for an order of certiorari was granted in part, to the effect that the Customary Court exceeded its jurisdiction when it purported to vary or review its earlier final judgment.
The respondents were again dissatisfied with the decision of the High Court and appealed against it to the Court below. Both parties formulated three issues for determination. The first issue on either side was whether the High Court had jurisdiction to entertain an application for an order of certiorari after the six-month limitation period provided for in Order 37 Rule 4 (2) of the High Court Rules Cap. 66 Laws of Anambra State, 1988, had lapsed.
The Court, in a considered judgment, delivered on 22/4/2008, resolved the appeal in the respondents’ favour on issue 1. The Court held that Order 37 Rule 4 (2) provides for a limitation period of six months within which to apply for an order of certiorari and that the appellants’ fresh application having been filed outside the six-month period was incompetent and could not confer jurisdiction on the High Court. The appeal was allowed. The ruling of the High Court in Suit No. OT/MISC/4/97 delivered on 23/6/2004 was set aside.
The appellants are aggrieved by this decision and have appealed to this Court in a bid to finally lay this matter to rest vide their notice of appeal filed on 22/9/2008 containing two grounds of appeal. The extant notice of appeal is the Amended Notice of Appeal filed on 29/10/21 and deemed filed on 2/11/21, the day the appeal was heard. It also contains two grounds of appeal.
At the hearing of the appeal, G.B. Obi Esq., adopted and relied on the appellants’ brief filed on 16/12/2009 and Reply Brief filed on 9/6/2017 in urging the Court to allow the appeal. Sir Ejike Ezenwa, SAN, adopted and relied on the Respondents’ Amended Brief of Argument filed on 27/2/2016 in urging the Court to dismiss the appeal.
The appellants identified a single issue for determination thus:
“Whether the Court of Appeal was right when it held that in view of the provisions of Order 37 Rule 4 (2) of the High Court Rules 1988 of Anambra State, the High Court lacked the jurisdictional competence to have granted the application for leave for certiorari which was filed after six months from the date of the proceedings of the Customary Court, Akwuzu.”
Interestingly, the respondents have formulated four issues from the two grounds of appeal contained in the Amended Notice of Appeal. As far back as 1990, this Court in Egbe vs Alhaji & Ors (1990) 3 SC (Pt. III) 63 @ 109, per Karibi-Whyte, JSC stated what is required when formulating issues for determination. His Lordship stated, inter alia:
“I think it is now well understood in the appellate Courts that the formulation of issues for determination in the appeal must be consistent and fall within the scope of the grounds of appeal filed. The issues cannot be formulated to be wider than the grounds of appeal from which they derive their existence.”(Emphasis mine)
In Leedo Presidential Hotel Ltd. Vs B.O.N. (Nig) Ltd. (1993) 1 NWLR (Pt. 269) 334 @ 347 A – C it was held thus:
“The essence of formulation of issues is to narrow the relevant points in issue. Since the issues must arise from grounds of appeal, they are meant to encompass all the grounds of appeal, thus a single issue should contain the points raised in one or more grounds of appeal. In other words, it is the grounds of appeal that should be contracted to form the issues for determination. The rule is that a number of grounds may raise a single issue and not the reverse.”
The appellant’s lone issue is distilled from the two grounds of appeal in the Amended Notice of Appeal. The respondents’ Issue (a) is in pari materia with the appellants’ issue, also distilled from the two grounds of appeal. In the absence of a cross appeal, the respondents’ issues (b), (c) and (d), not having been derived from any ground of appeal, are incompetent and hereby struck out. The appeal shall therefore be determined on the appellants’ lone issue.
It is argued on behalf of the appellants that the lower Court in construing the effect of Order 37 Rule 4 (2) of the High Court Rules, read the provision in isolation without considering the provisions of Rule 4 (1). It is contended that, had the Court read the two Rules together, it would have reached a different conclusion. The provisions of Order 37 Rule 4(1) and (2) were set out in full in paragraph 4.03 at page 9 of the Appellants’ brief. Learned counsel submitted that upon a literal reading of the provisions of Order 37 Rule 4 (2), it is clear that the six months period prescribed therein is directly related to and complementary to the provisions of Rule 4 (1). He submitted that the six months period in the words of Sub-rule 4 (2) is “for the purpose of Rule 1” i.e. Sub-rule 4(1). He submitted further that both sub-rules must be read together to determine whether the six-month period provided for in Sub-rule 4(2) was intended to be a statutory limitation of the time for bringing an application.
He submitted that in the interpretation of statutes, the Court is concerned with the intendment of the lawmaker. He argued that a piecemeal approach to the interpretation of a statute is bound to lead to absurdity, therefore, the provisions must be considered as a whole and broadly, in order to ascertain the object it was intended to serve and in order not to defeat that intention. He referred to Mobil Oil Nig. Plc Vs IAL 36 INC. (2000) 6 NWLR (Pt. 659) 146 @ 168 D – E. He submitted that upon a composite reading of both sub-rules, Sub-rule (2) does not provide for a limitation of time for bringing an application for judicial review. He submitted that upon a literal interpretation of Sub-rule (1), rather than prohibiting the making of an application for judicial review, it gives the Court the discretion to refuse to grant the application, where there is undue delay, depending on the facts and circumstances of the particular case. He argued that the provision merely imposes an additional burden on the applicant to satisfy the Court why its discretion should be exercised in its favour. He submitted that in the instant case, the appellants duly explained the reason for the delay in paragraphs 20 – 26 of the affidavit in support of the application for leave at pages 2 – 6 of the record. He submitted that if the lawmakers intended the provision to have a limiting effect, it would have been so stated in clear terms. He argued that the use of the word “may” in Sub-rule 4 (1) shows that the intention is to give the Court a discretion where the period stated in Sub-rule 4 (2) has elapsed. On the interpretation of the word “may,” he referred to Edewor Vs Uwegba & Ors (1987) 2 SC 49 @ 102 – 103.
On the need to construe statutory provisions broadly, he referred to: Minister of Internal Affairs Vs Shugaba (1982) 2 NCLR 915 @ 972. He submitted that a strict interpretation as that given by the Court below would have the effect of depriving or restricting a citizen’s access to Court. He referred to: Utih vs Onoyivwe (1991) 1 SCNJ 25 @ 63. On the principles to guide the Court in the interpretation of statutes and avoiding a narrow or strict interpretation, he referred to Nwosu Vs Imo State Environmental Sanitation Authority & Ors (1990) 4 SCNJ 97 @ 120 – 121, per Nnaemeka-Agu, JSC. He urged the Court to allow the appeal.
The respondents’ submissions in respect of the sole issue for determination in this appeal can be found in paragraphs 4.01 to paragraph 4.19 at Pages 6 – 12 of the Amended Respondents’ Brief. In view of my earlier finding that issues (b), (c) and (d) do not arise from the Amended Notice of Appeal, the submissions in respect thereof in paragraphs 4.20 to 4.39 at Pages 12 – 21 of the briefs are discountenanced.
Learned counsel submitted that Order 37 Rule 4 (2) provides for a six-month limitation period, after which any application for leave to appeal for judicial review would be incompetent and the Court would lack jurisdiction to entertain it. He argued that the Court ought to have considered the competence of the Court to assume jurisdiction as a preliminary issue before delving into the merit of the application. He submitted that the issue of jurisdiction was raised before the trial High Court. He contended further that there is no provision for extension of time within which to commence certiorari proceedings outside the six-month statutory period and that it is immaterial whether or not the appellants mentioned the cause of the delay in their affidavit in support of the application for leave.
He interpreted the provision of Order 37 Rule 4 (1) of the High Court Rules to mean that, leave to commence certiorari proceedings will not be granted outside the stipulated time, as it would cause substantial hardship. In other words, that the Court has no discretion to exercise once the prescribed period has lapsed. He also argued that the trial Court ought to have declined jurisdiction, having become aware that the matter had been determined by the Court of Appeal.
Relying on Okafor Vs Ukadike (2009) 1 NWLR (Pt. 1122) 259, he submitted that in the absence of jurisdiction, there was a defect in the Court’s competence to adjudicate and that in the circumstances, the proceedings are a nullity, no matter how well conducted.
Appellants’ Reply on Points of Law
In their reply on points of law, it is argued on behalf of the appellants that effect of the judgment of the Court of Appeal setting aside the first application for an order of certiorari on the ground that there was a breach of the appellants’ right to fair hearing, is that the entire proceedings and the judgment of the High Court thereon, is a nullity, and therefore, as if it never existed. Learned Counsel referred to Omoniyi Vs Alabi (2015) 4 NWLR (Pt. 1456) 572 @ 593 – 595. It is further argued that in the circumstances, the proceedings and ruling in respect of the application for certiorari arising from Suit No. CCA/2/92, which is the subject of this appeal is the only application, properly so called. It is also submitted that there was no earlier decision on the merits, thus the trial Court could not be said to have sat on appeal over a decision of the Court of Appeal.
I deem it appropriate to commence by considering the contention of learned counsel for the appellants that the trial Court sat on appeal over the decision of the Court of Appeal. There can be nothing further from the truth. I had earlier in this judgment summarised the salient facts that gave rise to the instant appeal. The ruling of the learned trial Judge in respect of the contempt proceedings delivered on 6/5/92, was set aside by the lower Court on 21/7/97 for breach of the rules of fair hearing.
There is a plethora of authorities of this Court on the effect of a breach of the right to fair hearing. It is fundamental. It is a breach of one of the twin pillars of natural justice, “audi alteram partem,” meaning, “let the other side be heard”, the other being “nemo judex in causa sua” meaning “a person should not be a judge in his own cause.” A denial of fair hearing renders the affected proceedings and any order, ruling or judgment therein, null and void. See: Adigun Vs A.G. Oyo State (1987) 1 NWLR (Pt. 53) 678; Salu Vs Egeibon (1994) 6 NWLR (Pt. 348) 23 @ 44; Bamgboye Vs Unilorin (1999) 10 NWLR (Pt. 622) 290 @ 333; NUT, Taraba State & Ors Vs Habu & Ors (2018) LPELR – 44057 (SC) @ 13 – 14 D – A; Zenith Plastics Industries Ltd. Vs Samotech Ltd. (2018) LPELR 44056(SC) @ 13 – 14 D – F.
On the legal effect of an act being declared null and void, it was held in Ladoja Vs INEC (2007) 12 NWLR (Pt. 1047) 115; (2007) LPELR – 1738 (SC) @ 39 F -G:
“Much consideration was given by the trial Judge to the fact that the 1st defendant/appellant “occupied the throne of Odofin of Ilishan-Remo de facto from March 1981 up to 7 December 1989.” With profound respect to the learned trial Judge, I think he was, without realizing it, swimming in a deep sea. When an appointment is declared null and void, all it means is that the appointment was never made and all acts of the purported appointee when he de facto held the appointment are unlawful, null and void and of no effect. “The result of a decree of nullity of marriage is that not only are the parties not now married but they never were.” – per Russel, J in Re Wombwell’s Settlement (1922) 2 CD 298 at P. 305…”
In effect, what I am trying to say, is that the appellant’s learned counsel was quite correct when he argued that the issue of the trial Court sitting on appeal over a decision of the Court of Appeal, or that it ought to have declined jurisdiction upon becoming aware that the Court of Appeal had given a decision in the matter, did not arise. The proceedings and decision having been declared null and void, there was no subsisting judgment on the merit in respect of the matter.
I now proceed to consider the merit of the appeal. The issue in contention is the correct interpretation of Order 37 Rule 4 (1) & (2) of the High Court Rules of Anambra State, 1988.
There are certain settled principles that guide the Court in the interpretation of statutes. Generally, statutory provisions must be interpreted in the context of the whole statute and not in isolation. They must be interpreted in a manner that is most harmonious with its scheme and general purpose. Furthermore, where the subject matter being construed relates to other sections (or subsections) of the same statute, they must be read, considered and construed together as forming a composite whole. See: General Cotton Mill Ltd. Vs Travellers Palace Hotel (2018) 12 SC (Pt. II) 106 @ 130 lines 14 -35; 168 lines 20 – 31. See also: Obi Vs INEC (2007) 7 SC 268; Akpamgbo-Okadigbo & Ors. Vs Chidi & Ors. (2015) 3 – 4 SC (Pt. III) 25; Nobis-Elendu Vs INEC (2015) 6 – 7 SC (Pt. IV) 1.
Specifically, there are three main rules of statutory interpretation:
(a) the Literal Rule: where the words are plain and unambiguous, they must be given their natural and ordinary meaning, unless to do so would lead to absurdity. The plain words used by the legislature provide the best guide to their intention. See:Adewumi & Anor. Vs A.G. Ekiti State (2002) 2 NWLR (Pt.751) 474; A.G. Lagos State Vs Eko Hotels & Anor. (2006) 18 NWLR (Pt.1011) 378; Ojokolobo Vs Alamu (1987) 3 NWLR (Pt.61) 377; Sani Vs The President FRN & Anor (2020) LPELR – 50990 (SC) @ 22 – 23 D -A.
(b) The Golden Rule: Where the use of the Literal Rule would lead to absurdity, repugnance or inconsistency with the rest of the statute, the ordinary sense of the words may be modified so as to avoid the absurdity or inconsistency, but no further. See: General Cotton Mill Ltd. Vs Travellers Palace Hotel (supra); Grey Vs Pearson (1857) 6 HLC 61 @ 106; PDP & Anor Vs INEC (1999) 7 SC (Pt. II) 30; Saraki Vs FRN (2016) 1 – 2 SC (Pt. V) 59.
(c) The Mischief Rule: Formulated and laid down in Heydon’s Case 3 Co. Rep. 7a @ 7b as follows:
(i) “What was the common law before the making of the Act?
(ji) What was the mischief and defect for which the common law did not provide?
(iii) What remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth? and
(iv) The true reason of the remedy; and then the office of all the judges is always to make such construction as shall suppress the mischief and advance the remedy …”
The issue in contention is the proper interpretation of Order 37 Rules 4 (1) and (2) of the High Court Rules, which provide:
“4 (1) Subject to the provisions of this rule, where in any case the Court considers that there has been undue delay in making an application for judicial review or, in a case to which Rule 2 applies, the application for leave under Rule 3 is made after the relevant period has expired, the Court may refuse to grant-
(a) leave for the making of the application or
(b) any relief sought on the application, if in the opinion of the Court the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.
(2) In the case of any application for an order of certiorari to remove any judgment, order, conviction or other proceedings for the purpose of granting it, the relevant period for the purpose of Rule 1 is six months after the date of the proceedings.” (Emphasis mine).
The appellants’ contention is that the above provisions provide for a limitation period after which no application for judicial review can be made or granted. The effect of a statute limiting the period within which certain actions can be brought to Court is that failure to bring the action within the time stipulated by the statute renders the action invalid and the Court without jurisdiction to hear the action or claim. An action or application filed outside the prescribed period is said to be statute-barred. See: Abubakar Vs Michelin Motor Services Ltd. (2020) LPELR-50837 (SC) @ 6 E – G; Egbe Vs Adefarasin (1987) 1 NWLR (Pt.47) 1; Hassan Vs Aliyu (2010) 17 NWLR (Pt.1223) 547.
I adopt the literal rule in interpreting the provisions. The first part of Sub-rule 1 above, provides for two scenarios in which the Court MAY refuse to grant leave to make the application for judicial review or any relief on the application: (a) where the Court considers that there has been undue delay in making the application; and (b) in a case to which Rule 2 applies, where the application is made after the relevant period has expired. The relevant period referred to is six months.
Whether or not the use of the word “may” in a statute should be construed as being mandatory or discretionary depends on the context in which it is used. It was held in: Adesola Vs Abidoye (1999) 14 NWLR (Pt.637) 28 @ 56 C – E, per Karibi-Whyte, JSC:
“The construction of the word “may” in provisions of statutes has always raised difficulties … because the word “may” assumes a technical meaning depending on the intendment of the statutory provision in which it is used. Although the etymological meaning of “may” is permissive and facultative, and seldom can be “must” and imperative, where there is anything in the provision that makes it [a] duty on the person whom it is given to exercise it, then it is imperative.”
Having carefully examined the provisions of Rule 4 (1) above, I am of the considered view that the use of the word “may” therein gives the Court the discretion to grant or refuse an application for leave to apply for judicial review or to grant any relief sought on the application. The basis for my reasoning is that Rule 4 (1) (b) provides that where the application is made after the expiration of the stipulated period, the Court, in deciding whether or not to grant leave or any relief sought, must consider whether granting the relief would be likely to cause substantial hardship to or substantially prejudice the rights of any person or would be detrimental to good administration.
Sub-rule (2) provides that in an application for an order of certiorari to remove any judgment, order, conviction or other proceeding into the Court for the purpose of quashing it, the relevant period for the purpose of Rule 1 is six months. In other words, as rightly submitted by learned counsel for the appellants, where an application is brought after six months, the Court has the discretion to grant or refuse the application, taking the factors in Rule 4 (1) (b) into consideration.
At page 147 of the record, the Court below considered Sub-rule (2) in isolation and held, inter alia:
“The effect of this provision is that leave shall not be granted to apply for an order of certiorari to remove any judgment, order, conviction or other proceedings for the purpose of it being quashed, unless the application for leave is made not later than six months after the date of proceedings or such later period …
It could be seen that the application leading to this appeal was no doubt made well outside the six months period allowed by the Rules for applying [for] such relief. The relief was nonetheless granted by the lower Court. The respondents did not seek extension of time. The lower Court, in view of Order 37 Rule 4 (2) above, could not therefore grant the prayer. Failure on the part of the applicants to show that the granting of the leave has caused substantial hardship to them or in any way prejudiced their rights, could not confer on the lower Court a power which was no longer its to invoke.”
Contrary to the finding of the lower Court above, Order 37 Rule 4 is not expressed in absolute terms as found in most limitation statutes. In keeping with the general object of statutory interpretation, both subsections of the Rule must be read together to ascertain the intention of the legislature. It is quite evident that their Lordships read Rule 4 (2) in isolation without considering it alongside Sub-rule 1 and particularly, Sub-rule 1 (b). Had they done so, I have no doubt that they would have come to a different conclusion. Having regard to the peculiar circumstances of this case, in which the earlier proceedings were declared a nullity, it was within the trial Court’s discretion to grant the application. Furthermore, as rightly pointed out by the appellants at the Court below, the respondents failed to show that the Court’s discretion was wrongly exercised.
In conclusion, I resolve the sole issue in this appeal in the appellants’ favour. The appeal is meritorious and it is hereby allowed.
The judgment of the lower Court delivered on 2nd July 2008 is hereby set aside. The judgment of the High Court of Anambra State, sitting at Otuocha delivered on 23/6/04 in Suit No. OT/MISC.4/97, quashing the proceedings, ruling and order of the Akwuzu Customary Court in respect of the motion dated 13/4/92 in suit no. CCA/2/92: Alexander Umeano & 2 Ors. Vs Albert Anaekwe & Anor., is hereby affirmed.
The parties shall bear their respective costs in this appeal.