CITEC INT’L ESTATES LTD v. GOVT. OF FRN & ORS
(2022)LCN/16299(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Friday, May 06, 2022
CA/A/513/2011
Before Our Lordships:
Stephen Jonah Adah Justice of the Court of Appeal
HammaAkawuBarka Justice of the Court of Appeal
Ugochukwu Anthony Ogakwu Justice of the Court of Appeal
Between
CITEC INTERNATIONAL ESTATES LIMITED APPELANT(S)
And
1. GOVERNMENT OF THE FEDERAL REPUBLIC OF NIGERIA 2. ATTORNEY GENERAL OF THE FEDERATION 3. MINISTER OF THE FEDERAL CAPITAL TERRITORY 4. FEDERAL CAPITAL DEVELOPMENT AUTHORITY (FCDA) 5. SECRETARY TO THE FEDERAL GOVERNMENT OF NIGERIA 6. ABUJA INVESTMENTS COMPANY LIMITED RESPONDENT(S)
RATIO:
THE NATURE AND ESSENCE OF JUDICIAL REVIEW
The nature and essence of judicial review was given firmly by this Court in the case of St. Michael Pharmaceutical Ltd v. Moore Associates Ltd & Anor. (2015) LPELR-24593 (CA), as follows:
“Judicial Review is based on a fundamental principle that is inherent in our legal system, which is that powers can be validly exercised only within their true limits; it is a mechanism for keeping public authorities within due bounds and for upholding the rule of law. In effect, instead of substituting its decision for that of some other body, as happens on appeal, the Court on review is concerned only with the question whether the act or order being challenged should be allowed to stand or not. Thus, the Court is concerned with the legality and not the merits of the decision or the acts of the public authority – see Amadi v. Acho (2005) 12 NWLR (Pt. 939) 386, Nigeria Association of General Practice Pharmacists Employers (NAGPPE) v. Pharmacist Council of Nigeria &Ors., (2013) LPELR-21834 (CA) and ACB v. Nwaigwe (2011) 7 NWLR (Pt. 1246) 380 SC, where Onnoghen, JSC, stated. Judicial Review is the supervisory jurisdiction of the High Court in the review of the proceedings, decisions and acts of inferior Courts and Tribunals and acts of governmental bodies. The remedies available are for orders of mandamus, certiorari and prohibition – In judicial review, the Court is usually concerned with the legality and not with the merit of the proceedings, decisions or acts of the affected Court, Tribunal or governmental body. The jurisdiction of the High Court to quash the judgment, order or proceeding of an inferior Tribunal on the face of the record is not an appellate jurisdiction.” STEPHEN JONAH ADAH, J.C.A.
THE FUNCTIONS AND DUTY OF THE COURT IN RELATION TO THE CORRECT POSITION IN LAW AND FACT
This is the correct position in law and fact, notwithstanding that legal action in this regard was yet to be commenced by the 6th Respondent! The decision usurped the functions and duty of the Court to pronounce the Appellant a debtor, bankrupt or insolvent and on which basis it was, the Appellant was to be divested of its interest in the said property! The composite effect is that the said decision of the Federal Executive Council is an illegal usurpation of judicial function which is undoubtedly subject to Judicial Review and the lower Court erroneously refused the issue of the prerogative writs (or orders) of Certiorari and prohibition on a perverse opinion that it was sought on a mere administrative function. Counsel relied on Attorney General, Lagos State v. Eko Hotels Limited & Anor (2006) 18 NWLR (Part 1011) 378; LPPC v. Chief Fawehinmi (1985) 2 NWLR (Part 7) 300; Young v. Judicial Service Commission, Cross River State & Anor(2008) 9 NWLR (Part 1091) 1, 12-13 C; Governor, Western Nigeria v. Oshunlaja (Unreported) FCS 378/195 of 18th May, 1961 (9 DSCC Pages 16-17); Ebba v. Ogodo & Ors (1984) 15 NSCC255, 265; Lawrence v. Attorney Genral, Federation (2008) 6 NWLR (Part 1084) 453, 480 G-D; Ejefor v. Okeke &Ors (2000) 7 NWLR (Part 665) 363, 381 C-E; Basinco Motors Limited v. Woermann-Line & Anor (2009) 13 NWLR (Part 1157) 149, 188 A-B; Federal Board of Internal Revenue v. Integrated Data Services Limited (2009) 8 NWLR (Part 1144) 615, 642-643 H-A; Okoli & Anor v. Udeh& Anor (2008) 10 NWLR (Part 1095) 213, 276 B-D. STEPHEN JONAH ADAH, J.C.A.
JUDICIAL REVIEW IS THE SUPERVISORY JURISDICTION OF THE HIGH COURT IN THE REVIEW OF THE PROCEEDINGS
The nature and essence of judicial review was given firmly by this Court in the case of St. Michael Pharmaceutical Ltd v. Moore Associates Ltd & Anor. (2015) LPELR-24593 (CA), as follows:
“Judicial Review is based on a fundamental principle that is inherent in our legal system, which is that powers can be validly exercised only within their true limits; it is a mechanism for keeping public authorities within due bounds and for upholding the rule of law. In effect, instead of substituting its decision for that of some other body, as happens on appeal, the Court on review is concerned only with the question whether the act or order being challenged should be allowed to stand or not. Thus, the Court is concerned with the legality and not the merits of the decision or the acts of the public authority – see Amadi v. Acho (2005) 12 NWLR (Pt. 939) 386, Nigeria Association of General Practice Pharmacists Employers (NAGPPE) v. Pharmacist Council of Nigeria &Ors., (2013) LPELR-21834 (CA) and ACB v. Nwaigwe (2011) 7 NWLR (Pt. 1246) 380 SC, where Onnoghen, JSC, stated …Judicial Review is the supervisory jurisdiction of the High Court in the review of the proceedings, decisions and acts of inferior Courts and Tribunals and acts of governmental bodies. The remedies available are for orders of mandamus, certiorari and prohibition – In judicial review, the Court is usually concerned with the legality and not with the merit of the proceedings, decisions or acts of the affectedCourt, Tribunal or governmental body. The jurisdiction of the High Court to quash the judgment, order or proceeding of an inferior Tribunal on the face of the record is not an appellate jurisdiction.” STEPHEN JONAH ADAH, J.C.A.
THE TERMS AND CONDITIONS GUIDING THE EXECUTION OF A CONTRACT
It is in the agreement that the terms and conditions which will guide the execution of the contract are stipulated. In the event of any default, the parties shall adopt the remedy available to an aggrieved party as stated in the agreement. Counsel relied on the cases of BFI Group Corp. v. BPE (2012) 18 NWLR (Pt. 1332) p. 209 at 238-239 Paras. H-B, 246 Paras E-F; A. I. Inv. Ltd V. Afribank (Nig.) Plc (2013) 9NWLR (Pt. 1359) P. 380 at 408-409 Paras. G-A; Aboseldehyde Lab. Plc v. U. M. B. Ltd (2013) 13 NWLR (Pt. 1370) P. 91 at 132 Para A; Nigerian Laboratory Corp. v. P.M.B. Ltd (2012) 15 NWLR (Pt. 1324) P. 505 at 525 Paras. F-H; Teriba v. Adeyemo(2010) 13 NWLR (Pt. 1211) P. 242 at 263-264 Paras. F-A; C. B. N v. Amao (2010) 16 NWLR (Pt. 1219) P. 271 at 299 Paras. B-E. STEPHEN JONAH ADAH, J.C.A.
STEPHEN JONAH ADAH, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Federal High Court, Abuja, delivered on 23rd March, 2011, in Suit No. FHC/ABJ/M/19/2007.
The appellant as the plaintiff instituted this action at the trial Court and claimed against the Respondents all the reliefs as per the Motion, thus:
1. A Declaration that the decision of the Federal Government of Nigeria as contained in the Federal Executive Council Memo dated 23rd May, 2007 directed the 6th Respondent to, on behalf of the Creditors of the Applicant take over the Applicant’s project site and the housing units with appurtenances thereon at Mount Pleasant Estates, Jabi/Airport Road Mbora District, Abuja is unconstitutional, unlawful, illegal, ultra vires, null, void and of no effect, whatsoever.
2. An Order directing the removal into Court of the memo of the Federal Executive Council dated 23rd May, 2007 (which memo directed the 6th Respondent to, on behalf of the Creditors of the Applicant, takeover the Mount Pleasant Estates Jabi/Airport Road Mbora District, Abuja) for the purpose of quashing and indeed quashing same.
3. An Order Prohibiting the Respondents especially the 6th Respondent, their agents, servants and privies howsoever called, jointly and severally from interfering with taking over, superintending the construction, management, sale and/or maintenance of Mount Pleasant Estate, Jabi/Airport Road, Mbora District, Abuja and/or in any way giving effect to the letters and intents of the Federal Executive Council memo dated 23rd May, 2007.
ALTERNATIVELY:
An Order of Injunction restraining the Respondents, especially the 6th Respondent, their agents, servants and privies howsoever called jointly and severally from interfering with, taking over, superintending the construction, management, sale and/or maintenance of Mount Pleasant Estate, Jabi/Airport Road Mbora District Abuja and/or in any way give effect to the letters and intents of the Federal Executive Council memo dated 23rd May, 2007.
An Order directing the Respondents to pay the applicant the sum of N1,000,000,000.00 (One Billion Naira) on the footing of aggravated and exemplary damages for unlawful interference with the Applicant’s proprietary rights being oppressive arbitrary, capricious, illegaland unconstitutional.
And for such further or other orders as the Honourable Court may deem fit to make in the circumstances.
In response, the 1st, 2nd and 5th Respondents filed their counter-affidavit on the 3rd October, 2008. The 3rd and 4th Respondents also filed their counter-affidavit on the 23rd February, 2008.
The 1st, 2nd and 5th Respondents and 3rd and 4th Respondents separately filed a Notice of Preliminary Objection on the 26th September, 2008 and 13th August, 2008 respectively, challenging the competence of the suit and the jurisdiction of the Court to adjudicate over the matter.
The trial Court after considering the substantive application alongside the Preliminary Objection of the 1st, 2nd and 5th Respondents as well as that of the 4th and 5th Respondents, dismissed the Preliminary Objection and delivered judgment against the plaintiff in the substantive application.
Dissatisfied with the said decision, the Appellant appealed to this Court vide a Notice of appeal filed on 5th September, 2011, and deemed properly filed and served on 19th November, 2014. The Record of Appeal was transmitted to this Court on 28thSeptember, 2011 but deemed on the 19th November, 2014.
The Parties filed and exchanged their respective briefs of argument. Appellant’s Brief of Argument was filed on 21st November, 2014. The 1st, 2nd and 5th Respondents’ Brief of Argument was filed on 15th December, 2014. The 3rd and 4th Respondents’ Brief of Argument was filed on 19th February, 2016. The 6th Respondent’s Brief of Argument was filed on 22nd February, 2016. The Appellant’s Reply Brief of Argument to the 1st, 2nd and 5th Respondents’ Brief of Argument was filed on 3rd February, 2015, while the Appellant’s Reply Brief of Argument to the 3rd, 4th and 6th Respondents’ Brief of Argument was filed on the 12th April, 2016 but deemed properly filed and served on 9th February, 2022.
Learned counsel for the Appellant submitted a lone issue for the determination of this appeal, thus:
Whether in the circumstances before the Federal High Court of Nigeria sitting in Abuja, the trial Judge was in error by refusing the application for Judicial Review before the lower Court and consequently dismissing the suit.
In response, learned counsel for the 1st, 2nd and 5th Respondents in their Briefof Argument filed on the 15th December, 2014 submitted six issues for the determination of this appeal, thus:
1. Whether the learned trial Judge was right to hold that the directive of the Federal Executive Council (FEC) authorizing the creditors of the Applicant’s/Appellant’s property did not amount to a decision affecting the legal right of the Applicant/Appellant and could not therefore constitute a decision to which orders for certiorari and prohibition would apply. (Distilled from Ground 1).
2. Whether the learned trial Judge was right to hold that the Applicant/Appellant had no vested title to the houses in Mount Pleasant Estate, Abuja. (Distilled from Ground 2).
3. Whether the learned trial Judge was right to hold that the Applicant/Appellant was bound by the terms of the contract it entered into with the Respondents. (Distilled from Ground 3).
4. Whether the learned trial Judge was right to hold that the Applicant/Appellant itself was in breach of the terms of agreement upon which the case was based. (Distilled from Ground 4).
5. Whether the learned trial Judge was right to hold that the Applicant/Appellant was entitled tothe reliefs sought. (Distilled from Ground 5).
6. Whether the learned trial Judge did not act judicially and judiciously when he dismissed the case of the Applicant/Appellant for lacking in merit. (Distilled from Grounds 6 & 7).
Learned counsel for the 3rd and 4th Respondents adopted the lone issue submitted by the Appellant in the 3rd and 4th Respondents’ Brief of Argument filed on the 19th February, 2016.
While learned counsel for the 6th Respondent submitted a lone issue for the determination of this appeal which is almost similar to that of the appellant counsel, thus:
Whether or not the decision of the Federal Executive Council of the 23rd May, 2007 constitutes judicial or quasi-judicial function that a writ of certiorari would appurtenant for the purposes of the Appellant’s application and whether the trial Court was right in dismissing the application.
This appeal will be determined on the lone issue submitted by the Appellant and adopted by the 3rd and 4th Respondents as it encapsulates all the issues distilled by the other Respondents in this appeal. I now start with the lone issue, which is:
Whether in thecircumstances before the Federal High Court of Nigeria sitting in Abuja, the trial Judge was in error by refusing the application for Judicial Review before the lower Court and consequently dismissing the suit.
Learned counsel for the Appellant while arguing this issue, submitted that the requirement of fair hearing is required more so in situations where a body, such as the Federal Executive Council with so much powers vested in it, exercise them in a manner that potentially encroaches on the rights of a private person, subject or citizen such as the Appellant which is a subject. In such situations the Court owes it to the course of justice to ensure that the powers so vested are not exercised without due regard to the rules of natural justice and where they are or purported to be exercised, they must be construed contra proferentem. Counsel relied on Constitution of the Federal Republic of Nigeria, 1999;Federal Civil Service Commission & 2 Ors v. Laoye (1989) 2 NWLR (Part 106) 652; Agbi& Anor v. Ogbeh& 4 Ors., (2005) 8 NWLR (Part 926) 40, 139 D-F; Ndukauba v. Kolomo& Anor (2005) 4 NWLR (Part 915) 411,438 D-F; Okoye & Anor v. Lagos State Government & 2 Ors., (1990) 3 NWLR (Part 136) 115, 125-126 F-D; Lakanmi& Anor v. Attorney General, Western State (1971) 1 UILR 201, 222 (8 DSCC4); Olawoyin v. Commissioner of Police, Northern Nigeria (1961) 1 All NLR 203, 211-121 (8 DSCC 30-31); Lagga v. Sarhuna& Anor (2008) 16 NWLR (Part 1114) 427, 474 D-F; Esabunor& Anor v. Faweya& 4 Ors (2008) 12 NWLR (Part 1102) 794, 808-809 H-B; Nwaoboshi& 4 Ors v. The Military Governor of Delta State & 2 Ors(2003) 11 NWLR (Part 831) 305, 321 C-E; R v. Electricity Commissioners (1924) 1 KB 171, 204-205;Oloruntoba- Oju& 4 Ors v. Abdulraheem& 3 Ors., (2009) 13 NWLR (Part 1175) 83, 145 C-H; University of Nigeria Teaching Hospital Management Board v. Nnoli (1994) 8 NWLR (Part 363)… 376 … 400 F-G;Okochi& 2 Ors v. Animkwoi& 2 Ors (2003) 18 NWLR (Part 851) 1 24 C-D.
Learned counsel for the Appellant submitted that since the decision was reached in respect of rights which the Appellant acquired in respect of the said property from a contractual relationship between it, and the 3rd Respondent and the Federal Housing Authority on the other hand, it willbe absurd to contend that the Appellant’s legal right was unaffected when the Respondents directed the “Creditors” of the Appellant to “take over” the project from the Appellant and take possession of its project site! This is the correct position in law and fact, notwithstanding that legal action in this regard was yet to be commenced by the 6th Respondent! The decision usurped the functions and duty of the Court to pronounce the Appellant a debtor, bankrupt or insolvent and on which basis it was, the Appellant was to be divested of its interest in the said property! The composite effect is that the said decision of the Federal Executive Council is an illegal usurpation of judicial function which is undoubtedly subject to Judicial Review and the lower Court erroneously refused the issue of the prerogative writs (or orders) of Certiorari and prohibition on a perverse opinion that it was sought on a mere administrative function. Counsel relied onAttorney General, Lagos State v. Eko Hotels Limited & Anor (2006) 18 NWLR (Part 1011) 378; LPPC v. Chief Fawehinmi (1985) 2 NWLR (Part 7) 300; Young v. Judicial Service Commission, Cross River State & Anor(2008) 9 NWLR (Part 1091) 1, 12-13 C; Governor, Western Nigeria v. Oshunlaja(Unreported) FCS 378/195 of 18th May, 1961 (9 DSCC Pages 16-17); Ebba v. Ogodo&Ors (1984) 15 NSCC255, 265; Lawrence v. Attorney Genral, Federation (2008) 6 NWLR (Part 1084) 453, 480 G-D; Ejefor v. Okeke &Ors (2000) 7 NWLR (Part 665) 363, 381 C-E; Basinco Motors Limited v. Woermann-Line & Anor (2009) 13 NWLR (Part 1157) 149, 188 A-B; Federal Board of Internal Revenue v. Integrated Data Services Limited (2009) 8 NWLR (Part 1144) 615, 642-643 H-A; Okoli& Anor v. Udeh& Anor (2008) 10 NWLR (Part 1095) 213, 276 B-D.
Learned counsel for the Appellant submitted that if the lower Court had understood the main issue and addressed it, a different decision consistent with the settled position of the law on the issues submitted to it by the case would have been arrived at The nature and essence of judicial review was given firmly by this Court in the case of St. Michael Pharmaceutical Ltd v. Moore Associates Ltd & Anor. (2015) LPELR-24593 (CA), as follows:
“Judicial Review is based on a fundamental principle that is inherent in our legal system, which is that powers can be validlyexercised only within their true limits; it is a mechanism for keeping public authorities within due bounds and for upholding the rule of law. In effect, instead of substituting its decision for that of some other body, as happens on appeal, the Court on review is concerned only with the question whether the act or order being challenged should be allowed to stand or not. Thus, the Court is concerned with the legality and not the merits of the decision or the acts of the public authority – see Amadi v. Acho (2005) 12 NWLR (Pt. 939) 386, Nigeria Association of General Practice Pharmacists Employers (NAGPPE) v. Pharmacist Council of Nigeria &Ors., (2013) LPELR-21834 (CA) and ACB v. Nwaigwe (2011) 7 NWLR (Pt. 1246) 380 SC, where Onnoghen, JSC, stated …Judicial Review is the supervisory jurisdiction of the High Court in the review of the proceedings, decisions and acts of inferior Courts and Tribunals and acts of governmental bodies. The remedies available are for orders of mandamus, certiorari and prohibition – In judicial review, the Court is usually concerned with the legality and not with the merit of the proceedings, decisions or acts of the affectedCourt, Tribunal or governmental body. The jurisdiction of the High Court to quash the judgment, order or proceeding of an inferior Tribunal on the face of the record is not an appellate jurisdiction.”
Learned counsel for the Appellant further submitted that the lower Court’s misconception of the case before it, is partly owing to the circumstances surrounding the delivery of the judgment as admitted by the judex. The judgment was delivered on 23rd March, 2011, a period of 5 months and 5 days after final Addresses were adopted on 18th October, 2010 the date initially fixed for the judgment. Counsel relied on Section 294 (1) & (5) Constitution of the Federal Republic of Nigeria, 1999 (as amended);Efetiroroje &Ors v. H. H. Okpalefe II (1991) 5 NWLR (Part 193) 517, 537-538 G-A; Abacha v. The State (2002) 11 NWLR (Part 779) 437, 484 G-H.
In response, learned counsel for the 1st, 2nd and 5th Respondents while arguing this issue, submitted that the learned trial Judge was right to hold that the directive of the Federal Executive Council (FEC) did not amount to a decision affecting the legal right of the Appellant, and could not therefore constitute a decision to which orders for certiorari and prohibition would apply. An order of Certiorari is a discretionary order issued by a Court of competent jurisdiction to quash the decision of an inferior Court where it is established by evidence that the inferior Court acted in excess of its jurisdiction, or where there is a breach of natural justice, or where on the face of the record there is a district error of law and not a mere administrative act. Counsel relied on Manuwa v. NJC (2008) 12 S.C. (Pt 1) P. 1 @ 260 Para 10 262 Paras. 5-15.
Learned counsel for the 1st, 2nd and 5th Respondents argued that the Appellant had no title to the Mount Pleasant Estate, Mbora District, and therefore,could not contend that the decision or rather the directive by the Federal Executive Council (FEC) had the effect of expropriating its property in Mbora District. The Appellant was merely engaged by the Federal Government of Nigeria to construct 5000 housing units at Mbora District, Abuja. Title to the property was never transferred to it. Title in this case is synonymous with locus standi which is a fundamental requirement that must exist for the action to be competent and maintainable. Counsel relied on A. S. U. U. v. B. P. E. (2013) 14 NWLR (Pt. 1374) P. 398 @ 423 Paras B- D.
Learned counsel for the 1st, 2nd and 5th Respondents submitted that in every contract, the parties subscribe to the terms and conditions by which they are bound. It is in the agreement that the terms and conditions which will guide the execution of the contract are stipulated. In the event of any default, the parties shall adopt the remedy available to an aggrieved party as stated in the agreement. Counsel relied on the cases of BFI Group Corp. v. BPE (2012) 18 NWLR (Pt. 1332) p. 209 at 238-239 Paras. H-B, 246 Paras E-F; A. I. Inv. Ltd V. Afribank (Nig.) Plc (2013) 9NWLR (Pt. 1359) P. 380 at 408-409 Paras. G-A; Aboseldehyde Lab. Plc v. U. M. B. Ltd (2013) 13 NWLR (Pt. 1370) P. 91 a5 132 Para A; Nigerian Laboratory Corp. v. P.M.B. Ltd (2012) 15 NWLR (Pt. 1324) P. 505 at 525 Paras. F-H; Teriba v. Adeyemo(2010) 13 NWLR (Pt. 1211) P. 242 at 263-264 Paras. F-A; C. B. N v. Amao (2010) 16 NWLR (Pt. 1219) P. 271 at 299 Paras. B-E.
Learned counsel for the 1st, 2nd and 5th Respondents further submitted that the learned trial Judge acted judicially and judiciously in dismissing the case of the Applicant/Appellant as the Appellant failed to prove its case on the merit. The term ‘judicially and judiciously’ has been defined in a plethora of cases to mean considering the interest of both parties before reaching a just decision. Counsel relied on the cases of NDIC v. Globus Ent Ltd. (2011) 3 NWLR (Pt. 1233) P. 74 at 87 Paras. A-B; Ibuluya v. Dikibo (2010) 3-5 SC (Pt. II) P. 127 Paras. 10-25; Tukur v. Uba (2013) 4 NWLR (Pt. 1343) P. 90 at 137- 138 Paras. G-A; N.S.I.T.F.M.B v. KlifcoNig Ltd (2010) 13 NWLR (Pt. 1211) P.307 at 332 Paras. A-C; Atungwu v. Ochekwu (2013) 14 NWLR (Pt. 1375) P. 605 at 624 Paras. B-G, 625 Paras. C-F, 633 Para. F640 Paras. B-D, 641-642 Paras. G-A, 642 Paras. E-F.
Learned counsel urged this Court to dismiss the appeal for lacking in merit.
For the 3rd and 4th Respondents, Counsel for the 3rd and 4th Respondents in arguing this issue submitted that the Appellant had at the trial Court sought for both declaratory and injunction reliefs. It was his lot to prove his case for the burden of proof rested on it. Counsel relied on Section 131 (1)and(2) of Evidence Act 2011; Akhigbe v. Shenoghor (2003) FWLR (Pt. 186) 568 @ 580; Obawole v. Williams(1996) 10 NWLR (Pt. 477) 146/171. Learned counsel further submitted that Article 16.2 provided for the remedy that avails the Appellant in the event of termination of the contract at the convenience of the 3rd and 4th Respondents. Counsel relied on the case of Osun State Government v. Dalami Nigeria Limited 2007 All FWLR (Pt. 365) 438 @ 454. Counsel urged the Court to dismiss this appeal and affirm the judgment of the trial Court.
Learned counsel for the 6th Respondent submitted that an application for an order of Certiorari must be for the determination of questions affecting legal rights of subject comprising oflegally enforceable rights or interest. More importantly, an application as such, must establish that the tribunal has a duty to act judicially or judiciously and conversely, acted ultra vires. Counsel relied on Manuwa v. NJC (2013) 2 NWLR (Pt. 1337) 1 @ 26; Agwuegbo v. Kagoma (2000) FWLR (Pt. 19) 511 CA; University of Uyo&Ors v. Essel (2006) All FWLR (Pt. 315) 80 @ 96 CA; Nwaoboshi v. Mil. Adm. Delta State (2003) FWLR (Pt. 166) 587 @ 602; Asafa Foods Ltd v. Alraine Nig. Ltd & Anor., (2002) 5SC (Pt. 1) pg. 1; Buhari v. INEC & 4 Ors., (2008) SC (Pt. 1) @ 260 Para. 10, 262.
Learned counsel for the 6th Respondent submitted that the Appellant failed to satisfy that he has sufficient legal interest in the property and that the decision of the Federal Executive Council put that legal interest in fundamental requirement that must exist for the action to be competent and maintainable. Counsel relied on the cases of ASUU v. BPE (2013) 14 NWLR (Pt. 1374) 398 @ 423 Paras. B-D; Adetona v. Zenith Bank Plc (2011) 18 NWLR (Pt. 1279) 627. Counsel further submitted that parties to an agreement retain the commercial freedom to determine their own terms. TheAppellant’s contract with the 3rd and 4th Respondents remains binding on both parties. Counsel relied on the cases ofIdoniboyeObu v. NNPC (2003) 4 MSJC 131 @ 148 Paras F-G; A. I. Inv. Ltd V. Afribank (Nig.) Plc. (2013) 9 NWLR (Pt. 1359) P. 380 @ 408-409 Paras. G-A. Counsel urged the Court to dismiss this appeal for lacking in merit.
Learned counsel for the Appellant in his Reply Brief of Argument to the 1st, 2nd and 5th Respondents submitted that at Paragraph 3.04, 3.11, pages 4-7 of the 1st, 2nd and 5th Respondents Brief, an attempt was made to controvert the point at paragraphs 3.17-3.23, pages 12-15 Appellant’s Brief to the effect that the lower trial Court did not only cast away from its moorings by charting the sea on issues totally extraneous to those at hand and on which issues were joined, but also by ignoring the material and failing to decide the proper issues submitted to it on which issues were joined. Counsel relied on the case of Udegbunam v. Federal Capital Development Authority & 2 Ors., (2003) 10 NWLR (Part 829) 487, 498 G.
Learned counsel for the Appellant in his Reply to the 3rd and 4th Respondents Brief, submittedthat the lower Court was not required to entertain issues of vested title to houses or breach of contracts matters.What the lower Court was required to consider was the narrow issue of breach of fundamental rights issue by judicial review processes, so that it was not open to it to proceed to loom for skirmishes all about the place. Counsel relied on the cases of Total Engineering Services Team Inc v. Chevron Nigeria Limited (2011) 8 NWLR (Part 1250) 464, 491-492 H-A; Efetiroroje & Ors v. HH Okpalefe II (1991) 5 NWLR (Part 193) 517, 537-538 G-A; Abacha v. The State (2002) 11 NWLR (Part 779) 437, 484 G-H.
Learned counsel for the Appellant in his Reply Brief to the 6th Respondent submitted that it is not a law that a party must file a Counter Affidavit to every Affidavit or challenge every allegation in any Affidavit, however, puerile or irrelevant to the issues at stake, it is not also the law that every unchallenged or uncontroverted deposition in an affidavit is deemed admitted. Counsel relied on the cases ofEjefor v. Okeke & 7 Ors (2000) 7 NWLR (Part 665) 363, 381 C-E; Orunlola v. Adeoye (1995) 6 NWLR (Part 401) 338, 353 A-B; Federal Board of Inland Revenue v. Integrated Data Services Limited (2009) 8 NWLR (Part 1144) 615, 642-643 H-A. Counsel urged the learned Court to discountenance all the respective various arguments put forward by the Respondents and allow the appeal in its entirety.
In the instant appeal, the trial Court considered the claim of the Appellant as plaintiff and dismissed it. The claim as earlier recapped was originated by a Motion for judicial review under Order 47 Rules 1 and 2 of the Federal High Court Rules, 2000.
The rules detailed the process and the procedure for judicial review in that Order 47 Rules 1 and 2 thereof as follows:
(1) An application for –
(a) an order of mandamus, prohibition or certiorari; or
(b) an injunction restraining a person from acting in any office in which he is not entitled to act.
Shall be made by way of an application for judicial review in accordance with the provisions of this order.
(2) An application for a declaration or an injunction (not being an injunction mentioned in Sub-rule (i) (b) of this rule) may be made by way of an application for judicial review and on such an application, the Court may grant the declaration or injunction claimed if it considers that having regard to –
(a) the nature of the matters in respect of which relief may be granted by way of an order of mandamus, prohibition or certiorari;
(b) the nature of the persons and bodies against whom relief may be granted by way of such an order and
(c) all the circumstances of the case.
It would be just and convenient for the declaration or injunction to be granted on an application for judicial review.
From the Rules of Court, the application before the lower Court was indeed properly placed before the Court. There is no controversy before us in this appeal as to the jurisdiction of the trial Court over this. What is prime here is whether the trial Court was right to dismiss the main application filed by the Appellant.
The nature and essence of judicial review was given firmly by this Court in the case of St. Michael Pharmaceutical Ltd v. Moore Associates Ltd & Anor. (2015) LPELR-24593 (CA), as follows:
“Judicial Review is based on a fundamental principle that is inherent in our legal system, which is that powers can be validlyexercised only within their true limits; it is a mechanism for keeping public authorities within due bounds and for upholding the rule of law. In effect, instead of substituting its decision for that of some other body, as happens on appeal, the Court on review is concerned only with the question whether the act or order being challenged should be allowed to stand or not. Thus, the Court is concerned with the legality and not the merits of the decision or the acts of the public authority – see Amadi v. Acho (2005) 12 NWLR (Pt. 939) 386, Nigeria Association of General Practice Pharmacists Employers (NAGPPE) v. Pharmacist Council of Nigeria &Ors., (2013) LPELR-21834 (CA) and ACB v. Nwaigwe (2011) 7 NWLR (Pt. 1246) 380 SC, where Onnoghen, JSC, stated …Judicial Review is the supervisory jurisdiction of the High Court in the review of the proceedings, decisions and acts of inferior Courts and Tribunals and acts of governmental bodies. The remedies available are for orders of mandamus, certiorari and prohibition – In judicial review, the Court is usually concerned with the legality and not with the merit of the proceedings, decisions or acts of the affectedCourt, Tribunal or governmental body. The jurisdiction of the High Court to quash the judgment, order or proceeding of an inferior Tribunal on the face of the record is not an appellate jurisdiction.”
Judicial review therefore, is the supervisory jurisdiction of the High Court which is exercised to review proceedings, decisions and acts of the inferior Courts or Tribunals and acts of governmental bodies. The Court called to review is usually concerned with the question of whether the act or decision under review should be allowed to stand or not.
The focus of the Court is solely on the legality and not the merit of the decision. The remedies available in judicial review are to issue mandamus, certiorari and prohibition.
In the instant appeal, the judicial review is said to be in respect of the decision of the 1st Respondent as contained in the Federal Executive Council Memo dated 23rd May, 2007, which the Appellant said directed the 6th Respondent, Abuja Investments Company Ltd on behalf of the creditors of the applicant to take over the Appellant’s project site and the housing units with appurtenances thereon at Mount Pleasant Estates,Jabi/Airport Road Mbora District, Abuja. The Federal Executive Council Meeting resolution from the evidence placed before the Court and which is part of the record in this appeal are on four points. The four directives are as follows:
1. The creditors of CITEC should come together to form a club of creditors of CITEC to pursue the takeover of the project from CITEC by way of legal action and take possession of the project site with a view to carrying on and completing the project.
2. Abuja Investments should be used as a Special Purpose Vehicle (SPV) for all the creditors to act on their behalf in all their actions.
3. Abuja Investments should enter into a Joint Venture Partnership with the Spanish company, EDICOMSA, the former technical partner to CITEC on the project, for the completion of the project using the Spanish technology as originally conceived.
4. Abuja Investments should source the funds for the completion of the project, complete and dispose of the houses and apply the sale proceeds in settling CITEC’s debts and any borrowing for the project completion.
A look at the application of the Appellant from the record before us will show clearly the gravamen and the crux of the Appellant’s claim. In paragraphs 9-11, and 14 of the affidavit in aid of the application read:
9. The former Minister of the Federal Capital Territory Mallam Nasir El-Rufai, on 23rd May, 2007, purportedly presented a memo to the Federal Executive Council, seeking among others to divest the applicant of all interest in the houses built at Mbora District, Abuja and called upon the creditors of the applicant to proceed and take over the Estate at Mbora District, Abuja.
10. The Federal Executive Council also purportedly considered the memo and by executive fiat resolved that the creditors of the applicant should take over the Estate.
11. There was no complaint to the 3rd and 4th respondents and for the Federal Executive Council and/or Governor of the Federation by any of the Creditors of the applicant.
…
14. The applicant was not invited to the meeting of the Federal Executive Council of 23rd May, 2007, where the decision was taken to expropriate and for take over its estate at Mbora District.
The 1st, 2nd and 5th Respondents filed a counter affidavit where in they averred at paragraph 4(f), (g) and (h) as follows:
(f) That the memo of the Federal Executive Council sought to be quashed in this suit was a mere directive issued to persons under the control of the Federal Government.
(g) That the applicant has suffered no legal injury arising from the directive contained in the said memo.
(h) That the said memo of the Federal Executive Council meeting of 23rd May, 2007 merely directed legal action in the following terms:
“The creditors of CITEC should come together to form a club of creditors of CITEC to pursue the takeover of the project from CITEC by way of legal action, and take possession of the project site with a view to carrying on and completing the project.”
From the facts before the Court, the 1st Respondent – Federal Government of Nigeria was the originator of the project being undertaken by the Appellant. The concern of the Government was to have available and affordable houses for the people and which motivated it to originate the project. Since the project was driven by the Federal Government, the Government cannot be seen to be aloof while it occurred to it that there wasthe need to deliberate on the progress of the project.
The trial Court in its judgment considered the application and held at pages 436 to 440 of the record of appeal as follows:
It is instructive to note that the applicant did not challenge the averment in paragraph 4(h) of the counter affidavit which shows that the decision of the Federal Executive Council did not after all divest or purport to divest the applicant with any perceived proprietary interest in the property at Mbora Estate rather it directed the creditors of the applicant to pursue legal action to take over the project with a view to completing same. In other words, the takeover of the applicant’s property can only come to fruition if and when a legal action is successfully pursued against the applicant. This to my mind does not amount to a decision that affects the legal right of the applicant and cannot therefore in my view constitute a decision to which orders for certiorari and prohibition would apply. On this score, the applicant has not made out a case that would warrant the grant of the reliefs sought in the application.
From the facts made available to us by the counsel for the parties in their respective briefs and in the record of appeal, it is obvious and certain that the trial Court cannot be faulted in its reasoning and conclusion noted above. The Appellant cannot ride the wind of uncertainty. The memo deliberated by the Federal Executive Council and the conclusion reached thereat is not in any form expropriating any right of the Appellant as alleged. The memo was calling out for the creditors of the Appellant to team up and take necessary legal action to enable them take over the project from the Appellant by way of legal action, and to take possession of the project site with a “view to carrying on and completing the project…” This decision of the Federal Executive Council does not in all seriousness and sincerity amount to a decision affecting the right of the Appellant to fair hearing. In fact, nothing injurious to his right had taken place. The application of the Appellant in that wise is with due respect preposterous and therefore un-grantable. The trial Court’s decision has no blemish. It was a valid straightforward decision and it is very correct.
From the foregoing therefore, the sole issue for determination is hereby resolved against the appellant. This appeal is lacking in merit. The appeal is hereby dismissed. The decision of the trial Court in Suit No: FHC/ABJ/M/519/2007, delivered on 23rd day of March, 2011, is hereby affirmed.
Parties are to bear their respective costs.
HAMMA AKAWU BARKA, J.C.A.: My lord graciously availed me a copy of the judgment just delivered with which I am in full agreement.
I agree with the resolution of the lone issue, and do agree that the appeal is wanting in merit and thereby dismissed.
I also agree that parties bear their respective costs.
UGOCHUKWU ANTHONY OGAKWU, J.C.A.: My learned brother, Stephen Jonah Adah, JCA, made available to me the draft of the leading judgment which has just been delivered. I have also read the Record of Appeal and briefs of argument filed and exchanged by the parties; and I find that the manner in which the lone issue for determination was resolved in the leading judgment accords with my views on the matter.
The resolution of the Federal Executive Council which the Appellant complains about, did not in any way affect the legal rights of the Appellant.
The resolution was merely directory for due process to be followed by means of a legal action in order to save the housing project being undertaken by the Appellant so that the said project could be completed.
On the peculiar facts and circumstances, the judicial review sought by the Appellant was not available to it for prohibition and quashing of the said Federal Executive Council resolution. The dismissal of the action by the lower Court is therefore the correct decision. Consequently, predicated on the detailed reasoning articulated in the leading judgment, which I adopt as mine, I equally join in dismissing the appeal for being devoid of merit. I abide by the consequential orders made in the leading judgment.
Appearances:
AbdulbasitAbdulmalik, Esq., with him, Dominion Adamu, Esq.For Appellant(s)
Oghene-Karo Rugbere, Esq. – for 1st and 5th Respondents
P.E. Adiale, Esq., with him, C.G. Chukwudebelu, Esq. – for 3rd and 4th Respondents
James Idih, Esq. for 6th Respondent. For Respondent(s)
