OGBONNAYA NWITE & ANOR v. P. N. NJEMANZE CHIEF MAGISTRATE, OWERRI & ANOR
(2014)LCN/7180(CA)
In The Court of Appeal of Nigeria
On Friday, the 9th day of May, 2014
CA/PH/440/2008
RATIO
WHETHER A JUDGE MUST REPRODUCE A PARTY’S ADDRESS LINE BY LINE
The law is settled that fair hearing is not an abstract term that a party can dangle in the judicial process but one which is real and which must be considered in the light of the facts and circumstances of the case. See, EJEKA V. STATE (2003) FWLR (Pt. 162) 1893 at 1904. Having said that, in as much as a party’s address forms part of his case and ought to be considered by the court, it is however not the law that a judge must reproduce the address line by line. The important thing is for the judge to consider the essential submissions and materials before arriving at its decision, which the learned judge did in this case. Per PHILOMENA MBUA EKPE, J.C.A.
JUSTICES
UWANI M. ABBA AJI Justice of The Court of Appeal of Nigeria
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
PETER O. IGE Justice of The Court of Appeal of Nigeria
Between
1. OGBONNAYA NWITE
2. MARY NWITE Appellant(s)
AND
1. P. N. NJEMANZE CHIEF MAGISTRATE, OWERRI
2. IMO STATE HOUSING CORPORATION Respondent(s)
PHILOMENA MBUA EKPE, J.C.A. (Delivering the Leading Judgment): This Appeal emanated from the ruling of Hon. Justice Chioma Nwosu Iheme (as she then was) of the High Court of Imo State sitting in Owerri delivered on 14th day of December 2005 dismissing the application for certiorari brought by the Appellants on the grounds that it was statute barred.
FACTS
The facts relevant to this appeal can be summarized as follows: On 1st day February 1994 the 1st Respondent, then a Chief Magistrate made an order for possession in respect of the property known as and called plot 49, 2nd Street Federal Low Cost Housing Estate, Aladinma Owerri, Imo State, against the Appellants. At the time of making the order the Appellants had a suit pending at the High Court for ownership of the property. The 2nd Respondent in execution of the order on 10/3/94 ejected the Appellants from the property. Upon the application of the Appellants to the High Court they were restored to the property and the 2nd Respondent barred from doing anything to stop their entering the property.
On the 15th day of October, 2001 the 2nd Respondent again ejected the Appellants from the property. This made the Appellants on 27th day of November 2001 to bring an ex parte application to the High Court for purposes of quashing it. The application for leave was granted as prayed on 11th day of December 2001. Sequel to the leave, the Appellants on 20th day December 2001 filed the motion on notice for judicial review. Argument was taken on the motion and on 14th day of December 2005 the learned judge dismissed the application for being statue barred.
Dissatisfied with the ruling dismissing the application, the Appellants brought the present appeal.
GROUNDS OF APPEAL
In a Notice of Appeal dated and filed on 14th day of February 2006 the Appellants raised the following grounds of appeal.
GROUND ONE
Error in law:
The learned trial judge erred in law when he on the 14th December, 2005 held that the Applicants/Appellants action or application for certiorari among other reliefs was statute barred.
GROUND TWO
Error in law:
The learned trial judge erred in law when he revisited, by striking out the suit on ground of being statute barred, the earlier order made by the court wherein the court exercised its discretion in favour of allowing the applicants/appellants to make the application notwithstanding undue delay in making the application or that three months had elapsed after the date of the proceedings.
GROUND THREE
Error in law:
The learned trial judge erred in law when he failed or neglected to consider the Applicants/Appellants counsel’s address in his decision and there by denied the Applicants/Appellants their right to a fair hearing which occasioned miscarriage of justice.
ISSUES FOR DETERMINATION
From the grounds of appeal reproduced above, the appellants in their brief of argument dated and filed on the 2nd day of March 2009 distilled three issues for determination, which they couched thus:
Issue No. 1:
“Whether the learned trial judge was right in holding that order 43 of High Court Civil Procedure Rules, 1988 of Imo State made the action statute barred having not been commenced within three months.
Issue No. 2.
Whether the learned trial judge was right in revisiting at the stage of motion on notice the order granting the Appellants leave to apply for order of certiorari being an order for leave granted by the court in exercise of its discretion at the stage of ex-parte application for leave.
Issue No. 3
Whether the learned trial judge was right in giving a terse and/or laconic decision in what ought to be a considered decision without considering the submission of the Applicant’s/Appellant’s counsel.”
The 2nd Respondent in its brief of Argument dated 22nd December, 2009 but deemed filed on 18th day of March, 2010 adopted the issues as raised by the Appellants.
The 1st Respondent is a nominal party to this appeal; hence did not file any brief in the appeal.
Issue No. 1:
On this issue learned counsel submitted that a person’s right to institute an action requiring leave does not crystallize or inure unless and until leave is granted. Counsel cited TABAI V. THE V.C. RIVERS STATE UNIVERSITY OF SCIENCE AND TECHNOLOGY (1997) (PT. 529) 373 RATIO 1 AND 2 to buttress the point that ex parte application for leave is just a prayer wherein the applicant is urging the court to exercise its discretionary power in his favour, and not a mode of commencing a certiorari application. Counsel contended that the period of three months can only begin to run after leave has been granted.
Counsel further submitted on this issue that the period of three months is limited to the ex parte application and that by Rule 4 (1) sub-rule 1 of Section 43 the court can still grant leave even if there is undue delay in bringing the application, as the word used in the said rule is “may” which according to counsel gives the court discretion. Counsel summed up his argument on this issue by urging that, in view of the peculiar circumstance of this case, this issue be resolved in their favour.
Responding to this issue, learned counsel for the 2nd Respondent after reviewing the provisions of Order 43 of the High Court (Civil Procedure) Rules 1988, submitted that the effect of Rule 4(2) of the said Order 43 is to limit the time for application for certiorari to three months after the date of the proceeding. He stated that the limitation period is categorical and leaves the court without discretion. I therefore agree with the submissions of the learned counsel for the Respondents on this issue, and same should be resolved in favour of the Respondents.
Issue No. 3:
Learned counsel for the Appellants in arguing this issue cited BAYO V. NJIDDA (2004) 8 NWLR (PT. 876) 544 to stress that counsel’s address is part of a party’s case and failure of the court to consider it amounts to breach of fair hearing. Counsel submitted that the lower court failed to consider the case of ANIGBORO V. SEA TRUCK (NIG.) LTD. 6 NWLR (Pt. 399) 35 at 58 RATIO 4 PARAGRAPHS D – F as cited. Counsel concluded by stating that once there is breach of fair hearing the proceedings are a nullity no matter how well conducted and the unreported case of ANIOKE V. OBASI delivered on 9th of May 2000 by the Enugu Division of the Court of Appeal was called in aid.
In responding to this issue, learned counsel for the 2nd Respondent submitted that the ruling complained about is neither terse nor laconic. Counsel stated that for a decision to be said to terse its nature must first be considered. Counsel contended that from the nature of the case the court only needed to look at the date the order sought to be quashed was made, the date the application for certiorari was made, and the Provisions of Order 43 Rule 4(2) of the Imo State High Court (Civil Procedure) Rules, 1988.
Counsel further stated that it would amount to a waste of time if the court went on a voyage in reviewing the addresses of counsel in the matter and at the end arrive at the same decision. Counsel opined that from the Appellants application for leave, to the motion on notice for certiorari and ruling, the Appellants were fully heard. Counsel concluded by citing NIGER CONSTRUCTION CO. LTD. v. OKUGBENI (1987) 4 NWLR (pt. 67) 787 to buttress the point that address of counsel cannot take the place of evidence.
Learned counsel for the Appellants filed a Reply Brief dated and filed on 18th day of March 2010, but with due respect to the learned counsel, the reply brief is nothing but a regurgitation of his argument in his Respondents Brief.
Counsel opined that the order sought to be quashed was made on 1st February 1994 in suit No. OW/432/93, while the application for leave to apply for certiorari was filed on 27th day of December 2001, clearly over 9 years thereafter, and the motion on notice was filed on 20th day of December, 2001. Counsel contended that by Rule 4(2) of Order 43 of High Court (Civil Procedure) Rules, 1988 which provided only three months, the application was statute barred. Learned counsel cited authorities including IBEKWE V. IMO STATE EDUCATION MANAGEMENT BORAD (2009) ALL FWLR (Pt. 488) 297 at 311, PARAGRAPHS A – B to show what the court ought to look at in determining if the application is statute barred and contended that in the instant application, the court should look at Order 43 Rule 4(2) High Court (Civil Procedure) Rules, the ruling in Suit No. OW/432/93 delivered on 1st day of February 1994 and the date of the motion on notice in Suit No. HOW/254M/2001.
Learned counsel cited U.A.C. NIGERIA LIMITED V. GLOBAL TRANSPORTE OCEANICO S.A. 7 ANOR. (1996) 5 NWLR (Pt. 448) 291 at 301 PARAGRAPHS D – E, 302 PAGRAPHS D – E to stress the point that limitation law being a law of strict liability, the court faced with deciding whether an action before it is statute barred or not, she has no discretion to exercise if it is established that such action is in fact statute barred. Counsel concluded his argument on this issue by urging the court to ignore the statement of facts in Respondents brief as according to him it was intended to invoke undue sentiment.
The law is settled that when the words of a statue are clear and unambiguous the business of the court is to give effect to it, see DANGANA V. USMAN (2012) ALL FWLR (Pt. 627) 612 at 641 PARAGRAPHS D – E. I have perused the Provisions of Order 43 of the rules of the lower court, 1988 and I must confess that the argument of learned counsel for the Appellant on the interpretation of this order is rather strange. The provision of the order especially Rule 4(2) therein is apt, clear and without equivocation that the relevant period for an application for certiorari is three months from the date of the proceedings sought to be quashed. The argument of learned counsel to the Appellant that the right of action inures after the leave is granted, is with due respect to him a non starter. The right inures, in my view, from the moment the proceeding commenced at counsel’s application for leave.
The law is trite that where a law prescribes a period for instituting an action, proceedings cannot be instituted after the period. See, UNILORIN V. ADENIRAN (2007) ALL FWLR (Pt. 468) 1871 at 1901. Order 43 Rule 4(2) of High Court of Imo State (Civil Procedure Rules) has clearly stated the period within which an application for certiorari should be brought and failure to bring the application within that period makes it incompetent and liable to be dismissed.
In IBRAWAL SHIPPING (NIG.) LTD. V. OMETRACO IND. LTD. (2002) ALL FWLR (Pt. 628) 932 at 942 PARAGRAPH H, it was held inter alia that “where the words in the rules of court are clear and unambiguous effect should be given to them in their ordinary and natural meaning except where to do so will result in absurdity”.
In the instant appeal, applying the words of Order 43 Rule 4(2) will not result in any form of absurdity. I am therefore of the humble view that the learned trial judge was right in holding that the application was statue barred. This issue therefore should be resolved against the Appellants.
Issue No. 2:
Learned counsel for the Appellants submitted on this issue that the moment the court exercises its discretion in granting leave to apply for certiorari it has become functus officio and cannot revisit the issue again. Counsel contended that any person aggrieved with the way the court exercised it discretion can only appeal the decision, and cited ANIGBORO V. SEA TRUCK (NIG.) LTD. (1995) 6 NWLR (Pt. 399) 35 at 58 PARAGRAPHS D – F and AKPAN V. EKPO (2001) 5 NWLR (Pt.707) 502 RATIOS 2, 3, 4 AND 11.
Responding to this issue learned counsel to the 2nd Respondent contended that there is an obvious nexus between the ex parte motion for leave and the motion on notice to apply for judicial review; he submitted therefore that the court does not become functus officio by merely granting the leave.
Counsel cited MOHAMMED ADEJIKO MOHAMMED & 4 ORS. V. MOHAMED HUSSEINI (1998) 14 NWLR (Pt. 584) 108 at 138-139 PARAGRAPHS H – A as to the meaning of the word functus officio.
Counsel contended that the essence of both the ex parte motion and the motion on notice is to bring for the purpose of quashing the order made by the 1st Respondent on 1st day of February 1994. The court could not have performed its task by merely granting leave, the task would be performed after hearing the motion on notice, and counsel cited HOUNGOR AGBENIYI V. MYANGORGA ABO (1994) 7 NWLR (Pt. 359) 735 at 748 – 749 and UNION BANK OF NIGERIA PLC. V. C.F.A.O. NIGERIA LTD. AND ANOR. (1997) 11 NWLR (Pt. 527) 118 at 127 AND 128.
Finally on this issue, counsel submitted that the hearing and subsequent dismissal of the Appellants motion on notice for an order of certiorari for being statute barred did not revisit, revoke or set aside the leave granted to the Applicants/Appellants in their ex parte application as argued by Appellants counsel.
Before attempting to resolve this issue, it is imperative to first define the word functus officio. According to the Blacks Law Dictionary, seventh edition, the word means “Without further authority or legal competence because the duties and functions of the original commission have been fully accomplished”. As relates to a judge, it means he has no more powers to make an order in a case.
The learned counsel to the appellants has argued strenuously that having granted the leave to apply for an order of certiorari the judge lacks the competence to revisit the leave already granted.
It is however, imperative to note, and as can be gleaned from the ruling of the judge, that the ruling of 14th day of December 2005 did not revisit or in any way whatsoever consider the leave already granted. The argument on the judge being functus officio after granting the leave is misconceived. The leave was granted giving time for the judge to consider the real issue, he cannot therefore be said to be without authority or legal competence to decide on the application on notice. The ex parte motion was merely a condition precedent to bringing the motion on notice. By no stretch of imagination therefore can it be argued that the judge has given a final decision by merely granting leave.
If the position were other-wise, the motion on notice will become nugatory and a waste of time.
The law is settled that fair hearing is not an abstract term that a party can dangle in the judicial process but one which is real and which must be considered in the light of the facts and circumstances of the case. See, EJEKA V. STATE (2003) FWLR (Pt. 162) 1893 at 1904. Having said that, in as much as a party’s address forms part of his case and ought to be considered by the court, it is however not the law that a judge must reproduce the address line by line. The important thing is for the judge to consider the essential submissions and materials before arriving at its decision, which the learned judge did in this case.
The Appellants were therefore not denied fair hearing as agued by their counsel. It should be noted that the style of writing judgment defers from one judge to another. The ruling of the judge in my view considered the essential submission of counsel on both side, thus it cannot be faulted. This issue like others should be resolved in favour of the Respondents.
Having resolved all the issue in favour of the Respondents, this appeal lacks merit and should be dismissed. The appeal is hereby dismissed.
UWANI MUSA ABBA AJI, J.C.A.: I agree.
PETER OLABISI IGE, J.C.A.: I have read in advance the judgment of my Lord PHILOMENA MBUA EKPE, JCA, which he just delivered.
I agree with the said judgment. I have nothing to add.
Appearances
For Appellant
AND
Dr. A.N. Aguna, Esq, with U. Dozie Ndukwe, Esq; and N.K. Elenwoke, Esq;For Respondent
