DAUDA JAURO & ORS v. HON. COMMISSIONER, MINSTRY OF LAND & SURVEY ADAMAWA STATE
(2013)LCN/5905(CA)
In The Court of Appeal of Nigeria
On Monday, the 11th day of February, 2013
CA/YL/1/2011
RATIO
“Mandamus is simply an orders issued by a court of law, usually the High Court is urged to compel the performance of a public duty in which the person applying for same has sufficient legal interest.” PER ABBA, J.C.A.
“The order of mandamus, of course, only issues to a person or corporation, requiring him or them to do some particular thing therein specified, which appertains to his company, their office, and is in the nature of public duty. See Ohakim v. Agbaso (2010) 19 NWLR (Pt.1226) 172 SC., Shitta-Bay v. Federal Public Service Commission (1981) 1 S.C 40, Amasike v. Reg-Gen. C.A.C. (2010) 13 NWLR 337 (Pt.121).” PER ABBA, J.C.A.
“The Applicant for mandamus must have the locus standi and the issue of locus standi herein cannot be said to be free from difficulties. It would appeal that such locus standi may depend on two alternative factors in regard to the duty allegedly not performed after demand: (a) Either that the applicant must have a specific legal right to enforcement of the duty, or that the Applicant has a sufficient legal interest or an interest more substantial than the general interests of other members of the community or interest group to which he belongs, or that he is specially aggrieved by the non-performance of the duty more than other members of the public generally. See Fawehinmi v. IGP (2002) 7 NWLR (Pt. 767) 606, R. v. The Guardians of Lewisham Union (1897) 1 QB, 498, R. V. Leicester Guardians (1899) 2 Q.B. 692, R. v. The Assessment committee of the city of London Union (1907) 2 K.B. 764, R. v. customs and Exercise Commissioners ex-parte Cook (1970) 1 WLR 450 at 455.” PER ABBA, J.C.A.
JUSTICES
SOTONYE DENTON-WEST Justice of The Court of Appeal of Nigeria
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
ABUBAKAR ALKALI ABBA Justice of The Court of Appeal of Nigeria
Between
1. DAUDA JAURO
2. MAXWELL HAPPY
3. ALHAJI RILWANU Appellant(s)
AND
HON. COMMISSIONER, MINISTRY OF LAND & SURVEY ADAMAWA STATE Respondent(s)
ABUBAKAR ALKALI ABBA, J.C.A. (Delivering the leading Judgment): This is an appeal against the ruling of Hon. Justice Bobbo Umar of Yola High Court in Yola Judicial Division of Adamawa State Nigeria, facts of the case are that, at the lower court the Applicant made by this Application for an ORDER OF MANDAMUS to compel 1st Respondent. Hon. Commissioner of Ministry of Land and survey to issue letter of clearance, also known and called “LETTER OF CONSENT”
The trial Judge in his ruling dated 11th November (2009) refused to grant order of mandamus to the 1st Appellant. Pages 29 to 35 is the full copy pages 33 par. 7 to page 35 paragraph (one)(1). Lower court refused to grant this order to Applicant at this court below and is now Appellant before us and Appellant filed this APPEAL NO:CA/YL/1/2011.
On 28th November, 2012 the appeal was heard and adjourned for Judgment.
The presiding Justice assigned this case to me on 28/11/2012 hence this Judgment to this date.
Appellant filed 4 grounds of appeal and distilled two issues from these 4 grounds, the Respondent filed two issues adopting the same 2 issues of the 3 Appellants.
The 3 Appellants brief was dated and filed 4th day of April, 2011 was deemed properly filed on 23/5/2012. The Respondent brief dated and filed on 23rd day of May, 2012.
The 3 Appellants filed reply brief of argument dated and filed on the 14th day of June, 2012. This reply brief made unsuccessful effort to discredit the 2 Respondents two issues and arguments on these 2 issues of the Respondents which fully adopted 3 Appellant same issues.
I prefer the Respondents language and style of stating easome the same two issues as Respondents arguments are short, clear and to the point. The 2 Respondents legal arguments and conclusion Represent The Correct And True position Of The Law.
The 3 Appellants arguments and conclusion both in Appellant’s brief and reply brief appear to me to very vague untrue and irrelevant and applicable cases were cited are wrong conclusions very strange and wrong in law.
ISSUE 1
In issue one of the 2 Respondents brief stated thus:
Whether the Appellants have disclosed sufficient legal interest to warrant the granting of an order of mandamus in their favour vis-a-vis the provision of section 22 and 27 of the Land Used Act, 1978 as their statement in support of the application for mandamus.
We agree to the submission of the 2 Respondents and seriously disagree with the 3 Appellants and hold that Appellants have not disclosed sufficient legal interest in order that court below will grant them the mandamus.
Mandamus is simply an orders issued by a court of law, usually the High Court is urged to compel the performance of a public duty in which the person applying for same has sufficient legal interest.
The order of mandamus, of course, only issues to a person or corporation, requiring him or them to do some particular thing therein specified, which appertains to his company, their office, and is in the nature of public duty. See Ohakim v. Agbaso (2010) 19 NWLR (Pt.1226) 172 SC., Shitta-Bay v. Federal Public Service Commission (1981) 1 S.C 40, Amasike v. Reg-Gen. C.A.C. (2010) 13 NWLR 337 (Pt.121).
The law is certain that the proposed recipient of the order must be an individual, body, tribunal or inferior court with a public duty to the Applicant. It is not available where there is no duty but only a discretion. The duty must be reasonably certain but may be a duty to exercise a discretion. See Fawehinmi v. Akilu (1987) NWLR (Pt.67) 797, R. v. Northumberland Quarter Sessions ex P. William (1965) 2 All ER 87 (1965) 1 WLR 700, Re Fletcher’s Application (1990) 2 All ER. 57 R. v. Wilts & Berks Canal Co. (1912) 3KB 623, R. v. Vestry of ST. Pancras (1980) 24 QBD. 371 Padfield v. Minister of Agriculture, Fisheries and Food (1968) AC 997 (1968) 1 ALL ER. 694 HL.
The Applicant for mandamus must have the locus standi and the issue of locus standi herein cannot be said to be free from difficulties. It would appeal that such locus standi may depend on two alternative factors in regard to the duty allegedly not performed after demand: (a) Either that the applicant must have a specific legal right to enforcement of the duty, or that the Applicant has a sufficient legal interest or an interest more substantial than the general interests of other members of the community or interest group to which he belongs, or that he is specially aggrieved by the non-performance of the duty more than other members of the public generally.
See Fawehinmi v. IGP (2002) 7 NWLR (Pt. 767) 606, R. v. The Guardians of Lewisham Union (1897) 1 QB, 498, R. V. Leicester Guardians (1899) 2 Q.B. 692, R. v. The Assessment committee of the city of London Union (1907) 2 K.B. 764, R. v. customs and Exercise Commissioners ex-parte Cook (1970) 1 WLR 450 at 455.
Mandamus may be issued in cases where although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual.
See Shitta-Bey v. Federal Public Service Commission (supra), R. v. Registrar of joint stock companies (1888) 21 QBA 131, R. v. Thomas (1892) 1 Q.B. 426.
In Shitta-Bey v. Federal Public Service Commission (supra) The Supreme Court per Idigbe, J.S.C. (as he then was) held thus:-
“Mandamus may be issued in cases where although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual” (See Halsbury Laws of England, 3rd Edition Vol.11, P.85 Paragraph 150, also Halsbury Laws of England 4th Edition Vol. 1, paragraph 89) the cases to which reference was made by the learned authors of Halsbury are (a) in regard to the second proposition inter-alia R. v. Thomas (1892) 1 Q.B. 426. In the case of the Registrar of joint stock companies (supra) an application for a mandamus to compel the Registrar of joint stock companies to file under Section 25 of the companies Act, 1867, a contract which he had refused to file on the ground that it was insufficiently stamped was refused, as there was another appropriate and effective remedy i.e. the proper way of questioning a registrar’s refusal, in the circumstances, being by obtaining the opinion of the commissioners of Inland Revenue, and, if necessary, appeal from their decision to the High Court. In the case of Thomas (supra) Justices refused an application for the licence of a bear house and refused to state their grounds for refusal of the application; mandamus was issued for although there was a right of appeal and there may have been good grounds to exercise that right, the compete refusal of the justice to state their grounds for refusal of the application titled the right of the Applicant towards the exercise of his alternative remedy by way of appeal”.
The court further in Shitta-Bey (supra) held thus:-
“The way to look at the point in issue is this; for a mandamus to be issued, the law is that ” there must be a legal right on the part of the Applicant to the performance, by the person or body against whom he applies, of same duty of a public and nor merely private” (See Short: Op, Cit. paragraph 228 of page 248). The legal right may be of a personal (i.e. private) or public nature. In my Judgment, the touchstone on this topic is to be found in the statement of Lord Ellenborough, DJ, in R. v. Archbishop of Canterbury & East 22, which I respectfully adopt, that” there ought in all cases to be a specific legal right as well as want of a specific legal remedy, in order to found an application for a mandamus”. As has earlier on been shown in this judgment there is vested in the Applicant by virtue of Exhibit “D” in these proceedings, a specific legal right to reinstatement in his post in the Federal Public Service which the Respondent has a duty to protect and render effectual”We agree with Respondent that mandamus is or prerogative order to compel the performance of a public duty and Applicant must have or show sufficient interest.
In view of the foregoing, we fully agree and accept 100% the Supreme Court Judgment in the case of Fawehinmi v. Inspector General of Police (2002) 5 SCNJ 103 especially by Uwaifo (JSC) at page 108 – 109 Ratio 8 page 121. We totally agree with learned Counsels for Respondents.
We find and hold that 1st, 2nd and 3rd Appellants have not in any way disclosed their sufficient legal interest to warrant the relief sought i.e. order of mandamus.
We resolve this issue in favour of the 2 Respondents against the 3 Appellants and consequently this appeal failed and the grounds on which this issue is distilled are dismissed.
We agree that the case of Inakoso v. Adeleke (2008) All FWLR (Pt. 353) page 3 at 33 Ratio 40 is correct position of the law as it is a decision of the supreme (Apex) Court of Nigeria. We are bound by these two cases.
3 Appellants counsels Barrister Etim Akpan Esq. and Barrister Onyi Ukaegbo Bue Esq. both of Onyi Ukaegbo & Co. attempted without success to convince us that the 3 Applicants in lower court now Appellants in this court have complied with order 43 rule (3) (2) of the Gongola State High Court (civil procedure) Rules 1987.
We do not agree and we find and hold that both in an ex-parte motion as well as in Application by way of motion on notice, there must be affidavit in support of the ex-parte motion as well as affidavit of verification of facts of the case.
Also in motion on notice, two affidavits must be made i.e. affidavit in support as well as affidavit to verify facts must be, we therefore reject and refuse to accept all the 3 Appellants submissions in pages (1), (2) and (3) of the Appellants reply brief of argument. We uphold Respondents submission on this order 43 rule 3.
The 2 Respondents counsels on page 5 to pages 6, 7 and 8 fully discussed the provisions of Land Use Act, 1978 especially section 22 (1) of the Land Use Act.
Section 22(2) of the act says no assignment of mortgage or transfer of possession of any land is valid without clearance or consent of the governor.
We agree with 2 Respondents that 3 Appellants violated this provision of Land Use Act namely Section 22 of the Land Use Act.
We agree and support and approve all the cases and sections cited by 2 Respondents in their brief pages 5, 6, 7, 8 and 9.
We are urged to discountenance 3 Appellants submission on section 22 of the Land Use Act and we so hold that since Appellants did not obtain clearance or consent of the Governor the Appellants are not entitled to get order of mandamus from lower court, we find and hold lower court is right in refusing this order of mandamus, for no legal interest was established for it grant by the lower court.
We commend the lower court and resolve this issue in issue 1 also in favour of the Respondent against the Appellant so we also dismiss appeal on this issue.
ISSUE 2
Whether the additional Authorities filed by Appellants were brought under an existing or cognisable law/rule and for failure to draw the court’s attention to whether it amounts to denial of fair hearing as provided by provision of section 36(1) of the 1999 Constitution (as amended).
The lower court rightly treated the addition cases as abandoned and that there was no denial of fair hearing, there was also no failure of Justice.
We accept cases and arguments of Respondent in their brief at page 9, 10, 11 and 12 of the brief. Finally, we resolve issue 2 also in favour of Respondent against Appellant.
We uphold the lower court decision as contained in pages 29 to 35 of the record especially pages 33 to 35 of the record and we unanimously dismiss this appeal No.CA/Y/1/2011 repeat below in full the correct ruling of Hon. Justice Bobbo Umar of Yola High Court delivered on 18/6/2009.
There is only one issue for determination in resolving the application at hand to wit:
“Whether the Applicants have made a case which worthy of favourable consideration in their favour?”
This court has taken its time to go through the affidavit evidence of the Applicants and that of the Respondents, both counsel for and against the application and the relief sought therein.
Both Counsel have agreed that for a court of competent jurisdiction to exercise its discretion in granting an order of mandamus, the Applicant must satisfy the court that he has legal or equitable right in the subject matter before the court, in the instant case the property as described by the Applicant in paragraph 3 of the statement in support of the application, Exhibit “A” end “1” attached to the application.
In paragraph 3 of the statement in support of the Application, it is stated that:-
“The Applicant is the holder of statutory right of occupancy No.ADS/3884 covering the piece of land lying and situate at Karewa G.R.A Yola and comprising an area of 1108 square metres”.
In paragraph 5 of the statement in support of application it is stated thus:-
The 2nd and 3rd Applicants subsequently acquired equitable interest in the plot of land from the 1st Applicant.
It is clear from paragraphs 2, 3, 4 and 5 of the statement in support of the application before me that:-
a. That the subject matter for which the order of mandamus is sought is covered by Statutory Right of Occupancy.
b. That 1st and 3rd Applicants acquired equitable interest with plot of land which is covered by Statutory Right of Occupancy from the 1st Applicant.
On Alienation and surrender of Right of occupancy, the Land Use Act, 1990 which is the relevant statutes provides under Section 22 that:-
“It shall not be lawful for the holder of a statutory right of occupancy or any part thereof by assignment mortgage, transfer of possession, sublease or otherwise however without the consent of the Governor first had and obtained”
The provision of the Land Use Act quoted Supra is clear and liberal enough to deal with the case at hand.
It is the finding and holding of this court that from the affidavit evidence adduced by the Applicants there is no where it is stated that the Applicants have satisfied Section 22 of the Land Use Act.
It is my finding that the purported acquisition of the subject matter by the 2nd and 3rd Applicants form the 1st Applicant is not in accord with section 22 of the Land Use Act and therefore unlawful and without any legal efficacy.
This court therefore hereby refused to grant the order sought for the reasons advanced supra to wit:- for clarity purpose the failure of the Applicant to satisfy Section 22 of the Land Use Act, 1990 Laws of the Federation of Nigeria.
On the whole, the application is hereby refused for failure to comply with the relevant statutory provision as enumerated above and in the ruling of the lower court.
On the whole this appeal has no merit at all and it is hereby dismissed.
No cost to either side.
SOTONYE DENTON-WEST, J.C.A.: I have read in draft the Judgment of my learned brother Justice Abubakar Alkali Abba JCA, just delivered. I agree to the Judgment in the circumstances of the appeal and I wish to add my comments as follows:-
Mandamus is a high prerogative unit, which lies to secure the performance of a public duty, in the performance of which the Applicant has a 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 demand, be done. If these is a discretion in the performance of the duty, the court has the power to examine whether the discretion to refuse to act has been properly expressed.
In the exercised of that power, the court will not highly overrule the discretion just because it considers it desirable that the duty be performed. Even if it is formal that the discretion was not properly exercised or that there was in fact no discretion at all in the manner, the court may still exercise its own discretion not to order mandamus on the several ground that the court would make no order in vain which could no longer be carried out; or on the other ground of expediently that it would serve no useful purpose even if the order were implemented in the above instances, the exercise of the court’s discretion will need also to pass the usual test. If it does not, an order made by the court is liable to be set aside.
See. Fawehinmi v. IGP (2002) 5 SCNF 103 at 108-109.
An order of mandamus is usually available to compel the performance of a public duty in which the person applying for mandamus has sufficient legal interest.
As Idigbe, JSC said in Shitta-Bey v. FPSC (1981).
“The order of mandamus, of course, only issues to a person or corporation, requiring him or them to do some particular thing therein specified, which appertains to his or their office, and is in the nature of a public duty”.
The proposed recipient of an order of mandamus must be an individual, body, or tribunal or inferior court with a public duty to the Applicant. See Fawehinmi v. Akilu (1987) 4 NWLR 797.
It is trite that for the application for mandamus to succeed, the must show that he has demanded performance and that performance has been refused by the person or body enjoined by law to carry out the duty. The refusal may not be express, a deliberate non-compliance is enough. See Fawehinmi v. Akilu (supra).
Therefore, the court may refuse to make an order of mandamus unless;
i. It has been shown that a distinct demand for performance of the duty has been made and the demand has deliberately not been complied with.
ii. Where there is undue delay;
iii. Where the Applicant’s motives are unreasonable.
See Fawehinmi v. Akilu (supra).
It should be noted that the principle of common law which precludes mandamus from issuing against the crown and servants of the crown in England does not apply in Nigeria, and, accordingly, the Federal or State Government and public servants working under them as well as public statutory bodies can be compelled to perform duties imposed on them by law. See Shitta-Bey v. Federal Civil Service Commission (supra).
Nevertheless, the interest of the Applicant must be established. Section 22 of the Land Use Act has made assignment of interest in land and landed property subject to the consent of Governor in case of land situate in urban areas. Unless, the consent is sought and obtained, any transfer of interest is a nullity.
I urge litigants to always look before they leap to reduce unnecessary litigations which I regard as waste of the precious time of the courts.
In view of the above and the reasons adduced by my lord in the Judgment, I too dismiss this appeal for lacking in merit and I abide by all the orders including order as to cost.
IGNATIUS IGWE AGUBA, J.C.A.: I had the privilege of reading the lead Judgment of learned brother A. A. Abba, JCA and am in total agreement with the position taken by my Lord that the Appeal lacks merit.
There is no doubt that mandamus is one of the prerogative writs issued by the High Court to compel o person charged with the performance of a public duty to discharge that duty. See Layanu v. Araoye (1961) ALL NLR 83 at 85 – 86. As a general rule, the making of the order is discretionary. See Commissioner for Local Government Lands and settlement v. Kadharhai (1931) A. C. 652 at 660. However, where the right sought to be enforced by the Applicant is the performance of a public duty which cannot be secured at all if the mandamus is refused, and the duty is only ministerial then the issuance of the writ is grantable. See Agboola Lasisi v. Registrar of Companies (1976) 7 S.C. 73 at 92.
As was rightly held while citing Shitta-Bey v. The Federal Public Service Commission (1981) 1 S.C. 40 at 68 – 69, for the writ to issue against the Respondent the Applicant ought to have shown the existence of a legal right that inured to him in order to compel by the order of mandamus to issue for the performance of the public duty by the person against whom the order is to be made.
In this case the Court below found that the Applicants violated the provision of section 22 of the Land Use Act, and accordingly they were not vested with the legal right to compel the Respondent to issue letter of clearance otherwise known as “letter of consent” in respect of the land the subject matter of the suit.
For the above reason and other reasons which hove been so elaborately stated in the lead Judgment; I also dismiss the Appeal for lacking in merit and is accordingly dismissed.
Appearances
Etim AkanFor Appellant
AND
Waya, J. A. (State Counsel II Adamawa State)For Respondent
