MR. EFIOK ARCHIBONG v. ITA NKAN
(2010)LCN/3898(CA)
In The Court of Appeal of Nigeria
On Monday, the 28th day of June, 2010
CA/C/211/2009
RATIO
ORDER OF MANDAMUS: NATURE OF ORDER OF MANDAMUS
An order of mandamus is amongst the prerogative orders which are discretionary common law remedies a High Court may grant in its supervisory jurisdiction over proceedings and decisions of inferior courts and tribunals and control of government duties and powers. It lies to secure the performance of a public duty in the performance of which the applicant has sufficient legal interest. It gives a command that a duty or function of a public nature, which normally though not necessarily, is imposed by statute but is neglected or refused to be done after due command be done. See FAWEHINMI v IGP (2002) 7 NWLR (Pt. 767) 606. PER KUMAI BAYANG AKAAHS, J.C.A.
ORDER OF MANDAMUS: CONDITIONS FOR THE APPLICATION OF AN ORDER OF MANDAMUS
The principles guiding the grant of mandamus were discussed in CENTRAL BANK OF NIGERIA v SYSTEM APPLICATION PRODUCTS LTD. (2005) 3 NWLR (Pt. 911) 152. There the Supreme Court laid down the following conditions for the application of an order of mandamus: (i) The order of mandamus lies to secure the performance of a public duty, in the performance of which the applicant has sufficient legal interest. (ii) The applicant must show that he has demanded the performance of the duty and that performance has been refused by the authority obliged to discharge it. (iii) The duty to be performed must be of a public nature. Mandamus will not lie in general to secure the due performance of the obligation owed by a company towards its members or to resolve any other private dispute. (iv) It is pre-eminently a discretionary remedy and the court will refuse to award it if another legal remedy is equally beneficial, convenient and effective. See: FAWEHINMI v AKILU (1987) 4 NWLR (Pt. 67) 797; WEMABOD ESTATES LTD. v JOYLAND LTD. (2001) 18 NWLR (Pt. 744); AKINTEMI v ONWUMECHILI (1985) 1 SC 132. PER KUMAI BAYANG AKAAHS, J.C.A.
JUSTICES
KUMAI BAYANG AKAAHS Justice of The Court of Appeal of Nigeria
JAAFARU MIKAILU Justice of The Court of Appeal of Nigeria
NWALE S. NGWUTA Justice of The Court of Appeal of Nigeria
Between
MR. EFIOK ARCHIBONG Appellant(s)
AND
ITA NKAN Respondent(s)
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?
(ii) Does a successfully (sic) party in a judgment have the right to unilaterally re-write or alter the terms of a judgment order on an issue expressly denied him by the court and demand compliance with same by the opposite party?
Learned counsel for the Appellant argued that the subject matter before the trial court was that of enforcement of judgment order delivered in Suit No. HU/217/2005 in favour of the Appellant herein who was Plaintiff thereat on 26/4/2006 which the Respondent failed to satisfy until now. Following the delay, the Appellant wrote and notified the Respondent of the new charges unless and except he promptly complied with the judgment order. Although the Respondent sued the Appellant in Suit No. HU/3/2008 over the new contract of payment charges, he later withdrew the suit after the parties had filed and exchanged pleadings and instead filed the motion for judicial review. It was submitted that the enforcement of judgment order and or execution of judgment orders simpliciter cannot be properly commenced under judicial review proceeding for an order of mandamus to be issued by the trial court; instead the execution or enforcement of judgment is provided for under the Sheriff and Civil Process Act. He said it is an improper use of judicial process to seek to enforce the said judgment through this proceeding since the Appellant does not owe the Respondent any public duty at all. He submitted that the legal requirement of a “public duty” is a mandatory condition precedent for the court to satisfy itself before granting an order of mandamus. He further submitted that the judgment order in Suit No. HU/217/2005 delivered on 26/4/2006 conferred only a private right on the appellant but not a public right to warrant invoking the powers of the trial judge for an order of mandamus. It is contended that the grant of the order of mandamus on 12/8/09 is a breach of the free choice and exercise of discretion of the Appellant conferred on him by law. Also there were alternative remedies opened to the Respondent and if he had any benefit arising from the judgment order in Suit No. HU/217/2005 he was free to levy execution against the appellant and not resort to secure an order of mandamus. It was finally submitted that the trial Judge confused his statutory judicial powers with the conditions to be satisfied by a Party before the judicial powers of a court can be properly exercised.
Learned counsel for the Appellant predicated his arguments on issue No. 2 on the doctrine of stare decisis which states that where a higher court in the hierarchy of courts has construed a rule of court which is in pari materia with a rule of a lower court or expounded a legal Principle which is similar to the one before the lower court that the meaning of that rule or principle is concerned. In other words by the doctrine of stare decisis, decisions of a higher court are binding on the lower court in the land except such decisions are principle: ACHEBE v. NWOSU (2002) FWLR (Pt.106) 1000 GLOBAL TRANSPORT OCEANIC CO & ANOR v. FREE ENTERPRISES NIG LTD (2001) FWLR (Pt.40) 1706; LABIJI v. ALHAJI ODETOLA & ANOR (1992) 8 NWLR (Pt. 258) 139. He submitted that since there is no distinction made in the judgment to justify the departure from the general proposition of the laws governing the grant of order of mandamus, the appeal should be allowed on this ground and the decision of the lower court should be set aside.
On issue 3, learned counsel argued that the amount due and standing to the appellant could not be ascertained without taking evidence from the parties; consequently the trial judge was wrong 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.
Learned counsel for the Respondent argued that it became necessary for the Respondent to invoke the mandamus procedure to compel the appellant to collect the outstanding balance of the judgment sum in Suit HU/217/2005 because the appellant mischievously refused to collect the balance after accepting N2 million and also refused to hand over the gas tank to him. At that stage the only remedy opened to the Respondent was to seek an order of court compelling the appellant to comply with that judgment order by receiving the balance, thereafter the respondent could apply for execution of the judgment. He argued that the lower court fully appreciated the nature of the application and granted only what was within its competence. Reverting to the phrase “any act” appearing in Section 21(1) of the High Court Law Cap. 55 Laws of Akwa Ibom State 2000, learned counsel interpreted it to mean all acts whether of a public or private nature. It is learned counsel’s contention that there was no compromise or out of court settlement after the judgment in Suit No. HU/217/2005 and the Respondent took steps to comply with the judgment by paying N2 million.
An order of mandamus is amongst the prerogative orders which are discretionary common law remedies a High Court may grant in its supervisory jurisdiction over proceedings and decisions of inferior courts and tribunals and control of government duties and powers. It lies to secure the performance of a public duty in the performance of which the applicant has sufficient legal interest. It gives a command that a duty or function of a public nature, which normally though not necessarily, is imposed by statute but is neglected or refused to be done after due command be done. See FAWEHINMI v IGP (2002) 7 NWLR (Pt. 767) 606.
The principles guiding the grant of mandamus were discussed in CENTRAL BANK OF NIGERIA v SYSTEM APPLICATION PRODUCTS LTD. (2005) 3 NWLR (Pt. 911) 152. There the Supreme Court laid down the following conditions for the application of an order of mandamus:
(i) The order of mandamus lies to secure the performance of a public duty, in the performance of which the applicant has sufficient legal interest.
(ii) The applicant must show that he has demanded the performance of the duty and that performance has been refused by the authority obliged to discharge it.
(iii) The duty to be performed must be of a public nature. Mandamus will not lie in general to secure the due performance of the obligation owed by a company towards its members or to resolve any other private dispute.
(iv) It is pre-eminently a discretionary remedy and the court will refuse to award it if another legal remedy is equally beneficial, convenient and effective.
See: FAWEHINMI v AKILU (1987) 4 NWLR (Pt. 67) 797; WEMABOD ESTATES LTD. v JOYLAND LTD. (2001) 18 NWLR (Pt. 744); AKINTEMI v ONWUMECHILI (1985) 1 SC 132.
The judgment in Suit HU/217/2005 was given on 26/4/2006.
The learned trial judge made the following orders in that judgment to wit:
(1) The Defendant is directed by an order of specific performance to pay to the Plaintiff the sum of N3.3 million being the balance of the cost of one gas storage tank which the defendant bought from the plaintiff or agreed to buy by agreement dated 30th April, 2004.
(2) Upon the immediate compliance with this order of specific performance the defendant shall be entitled and is directed to forthwith receive and take possession of the said tank in accordance with the terms of the said agreement.
(3) The relief No. 2 of the Plaintiff asking for the sum of N200,000.00 per month for safe keeping and maintenance of the tank fails and is dismissed.
(4) The counter-claim of the Defendant against the Plaintiff also fails.
(5) The cost of this action is assessed at
(a) N2,000.00 in favour of the Plaintiff in his suit which succeeds and
(b) N1,000.0 against the defendant and in favour of the plaintiff on the counter-claim which fails.”
On 27th April, 2006 the Appellant wrote the following letter to the Respondent:
“MONTHLY CHARGES OF STORAGE OF TANK (14250,000.00)
You were to pay for and collect our old storage tank you intend buying from us. During this period (from 30th April, 2004 to 28th February, 2005), the security was free but since you failed to comply to the terms of the agreement and the court in its ruling of 26th April, 2006 said I did not informed (sic) you then, being law abiding, I abide by the ruling of the court up to and including Wednesday 2006. The court clearly stated and I quote that “however the above observation applied in the time being when this matter has not been decided by the court.” You were ordered to pay by the court and remove the tank immediately an order you failed to comply.
Be informed that as from May 1, 2006 I will be charging you N250.000.00 (Two hundred and fifty thousand naira) only per month for the storage of the tank till you remove it after fully stultifying (sic) the judgment debts and full cost of storage, therefore henceforth any payment made will be acknowledge as payment on account, and same will be credited to the storage charge account until you satisfy in block the balance of the tank as ordered by the court in my favour. To confirm the above receipt of payment for the storage will be issued to you by Trufaith Company Limited and you will sign the receipt as a sign of agreement, an (sic) it will be clearly stated ” payment on account ” such payment has nothing to do with your paying in block in my favour the judgment sum and cost”. (See page 93 of the records).
The Respondent did not reply this letter but instructed Chief U. S. Uyouko, a legal Practitioner to write to the Appellant on 30th May, 2006 concerning the judgment in Suit HU/217/2005 and the letter reads:
“RE: JUDGMENT IN SUIT NO.HU/217/2005
Our client, Ita D. Nkan has requested that we communicate with you over the judgment in the above matter and we do so presently.
He has directed us to respectfully request of you, leave to pay the judgment debt, in instalments of N500,000.00 (five hundred thousand naira) monthly from end of June 2006, until the sum is fully paid and he collects his tank.
We request your consent hereto on his behalf as arrangements are being made to ensure full compliance.” (See page 42 of the records)
The burden of liquidating the judgment debt so as to entitle the Respondent the right to take over the gas tank lay with the Respondent. The right conferred on the appellant in Suit No. HU/217/2005 was a private right which was solely for his benefit which he could forgo or waive either completely or partially, depending on his free choice. It had no public policy element in it and so the parties were free to negotiate the terms of its execution. See: ARIORI v ELEMO (1983) 1 SCNLR 1; ABBEY v ALEX (1999) 73 LRCN 1471. If the appellant unequivocally accepted the terms of instalmental payment as proposed in the Respondent’s letter of 30th May, 2006, he will be held to those terms and will not be allowed to renege on them. Alternatively the Respondent could have applied to the lower court for instalmental payment and if the court granted the order it will be binding on the appellant. The Respondent did not comply with the time frame he set for himself to pay the judgment debt. Whereas he paid the 142 million between July and November, 2006, he did not tender the cheque for the remaining N1,300,000.00 until 20th November, 2007. He cannot be heard even in equity to complain. He walked into the trap set for him by the appellant in the letter of 27/4/2006 with his eyes wide open.
I find the argument advanced by learned counsel for the Respondent that he was free to invoke the mandamus procedure to compel the Appellant to accept the N1.3 million because of the use of the phrase “any act” contained in Section 21(1) of High Court Law of Akwa Ibom State 2000 as hollow. If it was the court that failed to enforce the agreement reached by the parties, then mandamus can be issued to compel the court to carry out its duty. Mandamus cannot lie against a private individual. The Respondent could sue in detinue for the illegal retention of the gas tank.
The learned trial judge was clearly in error when he held that the case of the Respondent was covered by statute and that gave jurisdiction to the court to make an order of mandamus even though he realized that there has to be a public duty which was absent in this case. If this line of thinking is allowed to stand, the issuance of orders of mandamus will be subject to serious abuse by litigants and the courts alike. It is usually due to the absence of other remedies available when public bodies, authorities or persons are found to be guilty of dereliction of duty that the prerogative writ of mandamus is invoked to compel performance of the duty.
The appeal has merit and it is hereby allowed. I set aside the order of mandamus which compelled the appellant to forthwith receive the sum of N1.3 million representing the final instalment of the judgment sum of N3,300,000 and release to the respondent the gas storage tank. No order on costs is made.
JAAFARU MIKA’ILU, J.C.A.: I have read before now the lead judgment of my learned brother Kumai Bayang Akaahs, J.C.A. The appeal has merit and it is hereby allowed. The order of mandamus given by the court below is hereby set aside. I award no order as to cost.
NWALI SYLVESTER NGWUTA, J.C.A.: I read before now the lead judgment delivered by my Learned Brother Akaahs, JCA and I agree with His Lordship’s reasoning and conclusions.
The prerogative order of mandamus granted by the Court below was contrary to the guiding principles laid down by the Supreme Court in, among others, the case of Central Bank of Nigeria V. System Application Products Ltd (2005)3 NWLR (Pt 911) 152 cited in the lead judgment.
I also allow the appeal. I adopt the consequential orders in the lead judgment.
Appearances
Sylvanus A. ObotFor Appellant
AND
Uyo-Obong Jumbo UdomFor Respondent
