ZENITH BANK PLC v. DR. SOLOMON OMORODION & ORS (2013)

ZENITH BANK PLC v. DR. SOLOMON OMORODION & ORS

(2013)LCN/6123(CA)

In The Court of Appeal of Nigeria

On Friday, the 19th day of April, 2013

CA/B/401/2011

RATIO

JURISDICTION: IMPORTANCE

Jurisdiction has been variously described as fundamental to the exercise of power by a court in relation to matters before it; or as being the lifeline to the exercise by a court of its power of adjudication. Given the nature of the issue of jurisdiction, the law has always been that it cannot be conferred on a court by agreement of parties or by their acts of omission or commission. And, if I may add, by the court itself inadvertently or purposely adopting a wrong approach in relation to a matter before it. This is why the law allows the issue of jurisdiction to be raised on appeals and even for first time in appeals before the Supreme Court, the highest court in the hierarchy of courts in Nigeria.PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A

JURISDICTION: THE EFFECT OF LACK OF JURISDICTION

APPEAL: WHETHER THE COURT OF APPEAL HAS THE JURISDICTION TO DETERMINE WHETHER THE LOWER COURT HAS JURISDICTION

An appellate court such as this Court has the jurisdiction to determine whether the lower court really has jurisdiction to hear or entertain a case or matter when confronted with that issue, just as the lower court itself has the jurisdiction to do this if raised before it. Where an appellate court such as this Court comes to the conclusion that the lower court has no jurisdiction to have entertained the case or matter, it is to strike out the case or matter thus removing it from the lower court’s cause list. See OKOYE V. CENTRE POINT MERCHANT BANK LTD. (2008) All FWLR (pt. 441) 810.PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A

APPELLATE COURTS MUST DECIDE ON ALL ISSUES PUT BEFORE IT: EXCEPTIONS

JUSTICES

SIDI DAUDA BAGE (Presided) Justice of The Court of Appeal of Nigeria

AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria

TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria

Between

ZENITH BANK PLC. – Appellant(s)

AND

1. DR. SOLOMON OMORODION

2. DR. (MRS.) HELEN EDOUWAYE IMOLODE

3. MRS. OSARO OGBEIDE

(For herself and on behalf of the two younger Sisters of late Edwin Ada Iyare Omorodion and their children) – Respondent(s)

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A (Delivering the Leading Judgment): This is an appeal against the ruling delivered on 29/6/2010 by the High Court of Edo State holden in the Benin Judicial Division at Benin City (hereafter simply referred to as “the lower court”) presided over by Hon. Justice Oseyi Okojie-Oigbokie (hereafter simply referred to as “the learned trial Judge”). In its ruling the lower court made an order relisting the ruling delivered in this Suit on 21/1/2010, for the purpose of setting it aside for reason of being a nullity and duly proceeded to set aside the said ruling of 21/1/2010.

The events leading to the order made by the lower court in its ruling of 29/6/2010 are that the Respondents as Plaintiffs before the said court commenced an action against the Appellant and another, by a Writ of Summons. A joint Statement of Claim dated 20/2/2009 accompanied the Writ of Summons. The reliefs claimed by the Respondents jointly and severally, as set out in the Statement of Claim read thus: –

“1. A declaration that the purported sale and transfer by the second defendant to the First defendant of the property known as No 135 Uselu Lagos Road, Benin measuring 100 feet by 200 feet and registered as 15; 15; 217 at Lands Office Benin City is fraudulent, invalid and therefore null and void.

2. A declaration that a purported Deed of Gift made on 31st day of October, 1979 by Late Edwin Ada Iyare Omorodion to Master Francis Esemuede Omorodion and registered 27 years thereafter on 21st day of April, 2006 as 14; 14; 966 at the Lands office Benin City is a bare-face forgery and therefore a nullity.

3. An order setting aside the purported Deed of Gift registered as 14; 14; 966 at the Lands Office Benin City as a forgery and therefore null and void.

4. An order of perpetual injunction restraining the Defendants their agents, privies and representatives from further trespass on the said land.

5. An award of one hundred million naira (N100, 000,000.00) in favour of the plaintiffs as general damages for trespass.”

Before the lower court, the Respondents brought a motion ex-parte dated 13/2/2009 and filed on the same date in which they sought for: –

“1. An Order granting leave to the Plaintiffs/Applicants to effect service of the Writ of Summons and other Court processes on the First Defendant out of jurisdiction and in Lagos being its registered place of business.

2. An Order for substituted service on the Second Defendant by putting the notice of the Writ of Summons and other Court processes at No 135 Uselu-Lagos Road, Benin City being the last known place of business of the Second Defendant before he went into thin air.”

The lower court presided over by Hon. Justice A.N. Ehigiamusoe entertained the motion ex-parte on 17/2/2009, and granted the orders sought therein, in the following manner: –

“(1) Leave is hereby granted the plaintiffs/Applicants to effect service of the writ of summons and other court processes on the 1st Defendant out of jurisdiction of this court at plot 84 Ajose Adeogun Street, Victoria Island Lagos.

(2) Secondly that leave is hereby granted the Plaintiffs/Applicants to serve the 2nd Defendant by substituted service the writ of summons and other court processes by pasting the said processes at No. 135 Uselu-Lagos Road Benin City being the last known place of business of the 2nd Defendant before he went into thin air. This shall be deemed as good and proper service. Case adjourned to the 23rd March, 2009 for the return date.”

Before the return date of the case, the Appellant brought a motion on notice dated 16/3/2009 and filed on the same date in which it prayed for: –

“An order of court to strike out this suit against the 1st Defendant/applicant as the court lacks jurisdiction to hear same.”

The grounds of the motion on notice (supra) as set out therein read thus: –

“(1) The plaintiffs did not seek the leave of court to issue the writ against the 1st defendant.

(2) The writ of summons is not endorsed for service outside jurisdiction.”

The lower court presided over by Hon, Justice A. N. Ehigiamusoe entertained the Appellant’s motion on notice (supra) and in the ruling delivered on 21/1/2010, the lower court in granting the Appellant’s prayer stated thus: –

“Like I have said I need not waste time on the deliberation of this matter before me. The issue is quite simple. No leave was sought and obtained to issue the said process outside jurisdiction of this Court. The simple conclusion most humbly is that non compliance with statutory provisions governing the issuance and service of writ of summons outside jurisdiction rendered the writ together with the proceeding relating thereto null and void.

It follows then that the orders made so far in this proceeding, the writ together with other processes given life by the court are all a nullity.

The conclusion is that the applicant succeeds in its prayer. A cost of N5,000.00 is awarded against the 1st respondents (sic). This is the ruling of this court.”

Consequent to the ruling delivered by the lower court as presided over by Hon. Justice A. N. Ehigiamusoe, the Respondents brought a motion ex-parte in which they prayed for: –

“Leave to apply for judicial review to wit: an order of certiorari to re-list the ruling delivered in this suit on Thursday January, 21st 2010 for the purpose or its being quashed for reasons of fundamental nullity.”

The enrolment of order at page 37 of the record shows that the motion ex-parte in question was entertained on 11/13/2009 by the lower court presided over by Hon. Justice Oseyi Okojie-Oigbokie (the learned trial Judge) and that the court stated thus: –

“Having heard counsel for the Plaintiffs/Applicants and having considered the verifying affidavit ordered (sic) granted as follows:

Leave is hereby granted to the Plaintiffs/Applicants to apply for judicial review to wit:

An order of certiorari to relist the Ruling delivered in this suit on the 21st day of January, 2010. The Plaintiff/Applicants shall put the Defendants on notice. Case is adjourned to 29th day of March 2010.”

Pursuant to the order of the lower court made on 11/3/2009, the Respondents duly brought a motion on notice dated 18/3/2009 pursuant to “Order 43 Rule 5(2) of the applicable High Court Rules” and therein sought for an order: –

“For judicial review to wit: an Order of certiorari to re-list the ruling delivered in this suit on Thursday January 21st, 2010 for the purpose of its being quashed for reasons of being a fundamental nullity, having been granted leave to so apply.”

There is a process titled “STATEMENT IN SUPPORT OF THE MOTION ON NOTICE” attached to the motion. The process contains two segments, sections or parts. The first part is titled or headed “GROUNDS UPON WHICH RELIEFS ARE SOUGHT”; the second part is titled or headed “EVIDENCE OR PROOF OF GROSS MISCARRIAGE OF JUSTICE SUFFERED” I consider it expedient to set out in this judgment the “GROUNDS UPON WHICH RELIEFS ARE SOUGHT” as contained in the “STATEMENT IN SUPPORT OF THE MOTION ON NOTICE” (supra). They read thus: –

“i) Plaintiffs obtained leave to serve the First Defendant out of jurisdiction i.e. in Lagos with an endorsed Writ of Summons, Statement of Claim and Enrolment of Order.

Defendants filed objection that the leave obtained was to “serve” not to “issue and serve”.

ii) Meanwhile Plaintiffs’ Motion for Injunction restraining the Defendants from rushing the Bank’s building on the disputed land was left fallow in the file.

iii) Defendants’ Motion to strike out the suit because Plaintiffs did not “seek leave to issue the Writ” and that “the Writ of summons is not endorsed for service outside jurisdiction” was vigorously argued on June 16, 2009.

iv) The learned trial Judge, Hon. Justice Ehigiamusoe refused to deliver her ruling whilst the building was been rushed using police and Security guards to ward off intruders.

v) Plaintiffs’ counsel complained to the learned trial Judge in the presence of Hon. Justice Joy Okeaya-Inneh in chambers. She was indifferent. In January 2010 the Ag. Chief Justice (sic) announced posting of Judges and the said trial Judge was transferred to Okada.

vi) That after the transfer to Okada, the trial Judge then rushed a hearing notice on the parties to come for the ruling on Thursday, January, 21, 2010 i.e. SEVEN months after the motion was argued.

vii) Meanwhile the building which the learned trial Judge was facilitating its completion has now been completed and now opened for business. Reliance is placed on Court processes in the Court’s file.

viii) The Ruling is a complete nullity having been delivered in gross violation of S. 294(1) of the 2004 constitution.

The said Ruling is attached hereto as Exhibit A.”

The Defendants in the case (i.e. Appellant and the other party sued with it) were apparently put on notice as ordered by the lower court in its ruling delivered on 11/3/2009. Consequently, the Appellant brought a motion on notice dated 25/3/2009 and filed on the same date praying for: –

“AN ORDER dismissing plaintiffs (sic) application for want of jurisdiction.”

The grounds of the motion on notice (supra) as set out therein are: –

“1. This Honourable Court cannot sit on appeal over its on (sic) judgment.

2. By the order of this Honourable Court of 12-01-2010, the court made a final order and thereby became functus officio.

3. The plaintiff/applicant (sic) herein has not complied with procedural requirements for invoking the court’s jurisdiction for an order of certiorari.”

The lower court entertained the motion for judicial review by way of certiorari brought by the Respondents and the Appellant’s motion on notice praying for the dismissal of the Respondents’ motion for judicial review together on 29/3/2009 and reserved its ruling till 29/6/2010. The lower court duly delivered its ruling on the said 29/6/2010. Therein, the lower court apparently did not find any merit in the motion on notice (supra) brought by the Appellant seeking for the dismissal of the Respondents’ motion for judicial review by way of certiorari and concluded by granting the Respondents’ motion for judicial review by way of certiorari when it stated thus: –

“It is hereby ordered as follows”

“An order to relist the ruling delivered in this suit on 21/1/2010 for the purpose of setting it aside for reason of being a nullity is hereby granted.”

Accordingly the said ruling delivered on Thursday 21/1/2010 is hereby set aside.

There is no order as to costs.”

Being aggrieved with the ruling of the lower court (and having first procured the leave of the lower court in that regard on 12/7/2010), the Appellant lodged an appeal against the same by a Notice of Appeal dated 12/7/2010 and filed on the same date. The Notice of Appeal contains eight grounds of appeal.

In compliance with the Rules of this Court, parties duly filed and exchanged Briefs of Argument. Appellant’s Brief of Argument is dated 14/3/2012 and filed on 19/3/2012 but deemed to have been properly filed and served on 14/11/2012. Respondents’ Brief of Argument is dated 26/11/2012 and filed on the same date. The appeal was entertained on 5/3/2013 and both Ewaen Eduwu of counsel for the Appellant and C. Udeh of counsel for the Respondents adopted and relied on the Briefs of Argument of the parties as hereinbefore identified, in aid of their respective positions in the appeal.

Though the Appellant in paragraph 3.1, of its Brief of Argument set out three issues as having been formulated for the just determination of the appeal, it is however clear from a perusal of the whole of the said Brief of Argument that four issues were actually formulated by the Appellant for the determination of the appeal. (See paragraph 7.0 on page 13 of the Appellant’s Brief of Argument in this regard). The four issues formulated for the determination of the appeal read thus: –

“ISSUE ONE

Whether the leaned trial court judge was right when she assumed jurisdiction over the certiorari proceedings brought before her.

ISSUE TWO

Did the learned trial court judge have jurisdiction to entertain the Respondent’s certiorari proceedings, when same was patently incompetent?

ISSUE THREE

Whether the learned trial judge had the jurisdiction to set aside the ruling of her learned brother Hon. Justice A.N. Ehigiamusoe delivered on 21/01/201?

ISSUE FOUR

The learned trial judge erred in law when she held that the ruling of 21/1/2010 was not a final decision.”

The Respondents formulated three issues for the determination of the appeal in their Brief of Argument. The issues read thus: –

“ISSUE ONE

Whether the learned trial Judge was right in assuming jurisdiction over the certiorari proceedings brought before him?

ISSUE TWO:

Whether Respondents’ certiorari Application was incompetent?

ISSUE THREE:

Whether the Ruling of His Lordship delivered on the 21st day of January, 2010 was a final decision.”

The appeal will be determined on the issues as formulated by the Appellant as the issues in my considered view adequately bring out the grouse of the Appellant against the ruling of the lower court despite the fact that only issue 1 has grounds 1 and 7 of the grounds of appeal, married to it.

APPELLANT’S ISSUE 1

Dwelling on this issue, the Appellant submitted to the effect that the lower court erred in law when it assumed jurisdiction over the certiorari proceeding brought before it by the Respondents. This is against the backdrop of both the substantive and adjectival law regarding certiorari proceeding. Having referred to the relief claimed in the motion for judicial review by the Respondents, the Appellant stated to the effect that implicit in the said application for judicial review by way of certiorari was the ruling of a court of co-ordinate jurisdiction. That in spite of its vehement opposition to the strange procedure adopted by the Respondents, the learned trial Judge overruled its (Appellant) preliminary objection and granted the application for judicial review. The Appellant said that this is the gamut of the instant appeal.

The Appellant submitted that the Respondents’ application for certiorari to all intent and purposes was grossly incompetent and that the learned trial Judge ought to have refused to entertain same. It is the stance of the Appellant in this regard, that the position of the law is that certiorari proceedings are for the review of judicial or quasi-judicial proceedings or decisions and are only applicable to administrative tribunal or inferior courts. That certiorari proceeding is inapplicable to proceedings or decisions of superior courts of record such as the lower court. Reference was made to Section 6(5) of the 1999 Constitution designating a State High Court as a superior court of record. The cases of Lawal v. Quadri (2004) 4 NWLR (pt. 863) 1 at 12 and 15; and Oghene v. Oghene (2008) 2 NWLR (pt. 1070) 29 at 49, were cited in aid. It is also the stance of the Appellant that the limitation of the use of certiorari for the review of proceedings or decisions of inferior courts has been confirmed by leading authorities on Administrative Law, namely, de Smith “Judicial Review of Administrative Actions” (1980) 4th Edition, pages 381 – 385; and Aihe & Ilyuomade: “Administrative Law in Nigeria”. Reference was also made to Black’s Law Dictionary, 9th Edition (at page 258) on the definition of certiorari; and Civil Procedure in Nigeria 2nd Edition by Fidelis Nwadialo, SAN (at page 1055) regarding the nature, scope and the function of certiorari proceedings. In the light of all its submissions, the Appellant set out the conditions that must exist for the proper adoption/invocation of certiorari proceeding as a means of judicial review to be: –

(a) It must proceed to a court with Appellate status.

(b) It is only applicable to inferior courts, administrative tribunals or quasi-judicial bodies.

The Appellant submitted that the case of the Respondents was not a proper one for the invocation of certiorari proceedings as a means of judicial review. The reasons set out by the Appellant in justification of its stance are:-

(i) The Ruling of 21/01/2010 which the Respondent (sic) sought to review by his certiorari proceedings was delivered by Hon. Justice Ehigiamusoe whilst she was presiding as judge of High Court of Justice, No. 5 in Edo State.

(ii) The said application was brought before Hon. Justice Oigbokie another Judge of the High Court of Justice, Edo State who took over the Court earlier presided over by Hon. Justice Ehigiamusoe as a result of the transfer of Judges in the State.

(iii) Hon. Justice Ehigiamusoe by her ruling of 21/01/2010 concluded the case as between the Respondent (sic) and Appellant herein, so there was no basis for the said suit to start de novo before Hon. Justice Ehigiamusoe (sic: Oigbokie).

(iv) The main plank of the said certiorari proceedings as constituted by the Respondent (sic) before Hon. Justice Oigbokie was the issue of nullity of the said ruling of 21/01/2010 and not that the Hon. Justice Ehigiamusoe the previous trial judge did not have jurisdiction to entertain the suit or the application of the Appellant which culminated in the dismissed (sic) of the Respondents (sic) suit.

(v) By virtue of Section 4(2) of the High Court Law of Bendel State, all Judges of the High Court have equal powers and jurisdiction.

The Appellant submitted that the only option open to the Respondents in the aftermath of their dissatisfaction with the ruling of 21/1/2010 was to have appealed against the same and not to have proceeded to a court of coordinate jurisdiction to set aside the said ruling by way of certiorari proceedings. The cases of Nwoboshi v. Military Administrator of Delta State (2003) 11 NWLR (Pt.631) 305 at 318; and Lawal v. Quadri (supra) were cited in aid. Given its stance that the lower court had no jurisdiction to entertain the certiorari proceeding initiated by the Respondents, the Appellant urged this Court to resolve its issue 1 in its favour.

The Respondent treated issues 1, 2 and 3 formulated by the Appellant together. This is because the Respondents are of the view that Appellant’s issues 1, 2 and 3 encompass grounds 1, 2, 3, 4, 7 and 8 of the grounds of appeal and therefore ought to have been argued together by the Appellant.

I must quickly observe that while the Respondents definitely are entitled to pursue the appeal in whatever manner they consider expedient, it is not for them or it is not in their place to tell the Appellant the manner in which it is to argue or present its appeal.

Regarding Appellant’s issue 1, the Respondents submitted to the effect that a court or a court of co-ordinate jurisdiction can set aside its own decision or judgment where the judgment of the court, or that of the court of concurrent jurisdiction, is a jurisdictional nullity, has been obtained by fraud, is based upon a serious fundamental, procedural defect in the proceedings, or is given in the absence of the other parties. Accordingly, that a High Court such as the lower court can entertain a suit to set aside its own judgment or the previous judgment of another High Court of concurrent jurisdiction when such judgment is null and void or obtained by fraud. The cases of Odofin v. Olabanji (1986) 3 NWLR (Pt.435) 126 at 133; Skenconsult Nig. Ltd v. Ukey (1981) 1 SC 4 at 22-25; Yakubu v. Gov. of Kogi State (1997) 7 NWLR (Pt. 511) 66 at 87; Fada v. Naomi (2002) 4 NWLR (Pt. 757) 318 at 330; amongst others were cited in aid. The Respondents submitted that it is manifestly clear from the records that they suffered grave injustice and a miscarriage of justice by the deliberate seven months delay in the delivery of the ruling of the 21/1/2010 by Hon. Justice A. N. Ehigiamusoe. It is the stance of the Respondents that the fatal delay was not a mere procedural irregularity which may be over-looked but a fundamental, statutory irregularity which goes to the jurisdiction of the court. Reference was made to Section 294 (1) of the 1999 Constitution in this regard. That the deliberate delay of the lower court presided over by Hon. Justice Ehigiamusoe undermined every known principle of natural justice.

Having also stated that courts have consistently condemned the flagrant refusal to hear applications brought by parties, the Respondents submitted that the flagrant refusal by the lower court to hear their motion for an order restraining the Appellant, did not only occasion injustice but was also supportive of possible ingredients capable of bringing to a nullity the subsequent order(s) emanating from the ruling of the lower court delivered on 21/1/2010. The cases of Mobil Producing (Nig.) Unltd v. Monokpo (2003) 18 NWLR (Pt.832) 346 at 413; Dingyadi v. INEC (No. 1) (2010) 18 NWLR (pt. 1224) 1 at 52-53; and Okoro v. Okoro (1998) 3 NWLR (Pt. 540) 65 at 74, were cited in aid. Having dwelled further on the merit of the ruling of the lower court delivered on 21/1/2010, and highlighting what they considered to be faults or flaws therein, the Respondents urged this Court to resolve Appellant’s issues 1, 2 and 3 against the Appellant, and in their own favour.

Appellant’s issue 1 and Respondent’s issue 1 though not ipsissima verba, are clearly the same in purport. Issue 1 formulated by the parties, question the appropriateness of the certiorari proceedings initiated by the Respondents for the purpose of remedying whatever wrong the lower court committed in its ruling of 21/1/2010. In otherwords, all that issue 1 formulated by the parties has raised, is the question as to whether or not the lower court, can in law, invoke judicial review by way of certiorari proceedings in relation to its own proceedings. It therefore must always be borne in mind that the issue under consideration does not call for the resolution of the question as to whether the lower court was right or wrong in the decisions in the rulings delivered on 21/1/2010 and 29/6/2010 respectively. It has become necessary to state this, because the Respondents having regard to some of their submissions would appear not to appreciate the fact that issue 1 as formulated by them does not admit of the consideration of the correctness or otherwise of the decisions of the lower court particularly those in its ruling delivered on 21/1/2010. On the other hand, the Appellant clearly appreciates the nature or purport of its appeal when it stated under its issue 1 to the effect that the gamut of the instant appeal is whether the procedure of judicial review by way of certiorari was the right means of undoing whatever wrong the lower court purportedly committed in its ruling delivered on 21/1/2010.

Law Reports are replete with decisions of the Supreme Court and this Court regarding the prerogative order of certiorari that I find it unnecessary to delve into books for the origin of the said prerogative order and other prerogative orders in use in the Nigerian legal system. In the case of NWAOBOSHI V. THE MILITARY GOVERNOR OF DELTA STATE (supra) (cited in the Appellant’s Brief of Argument), the Supreme Court dealt at length with the prerogative order of certiorari. In the case under reference, the Supreme Court per Uwaifo, JSC; stated thus at page 316: –

“….I find it appropriate at this stage to remark that this appeal was not properly titled as an action by writ of certiorari should. The parties were erroneously stated thus:

1. Prof. L.O. Nwaoboshi

2. C.O. Nwanze, Odogwu of Ibusa

3. W. O. Ikolodo, Nwokolo of Ibusa – appellants

4. J. I. Okonicha, Iyase of Ibusa

5. Chief Agustine Izagbo

AND

1. The State – respondents

2. The Military Administrator of Delta State

3. Attorney-General & Commissioner

4. Obi (Prof.) Chike Onwuachi

Not to have regarded the state other than as a symbolic party is misleading. The state in certiorari proceedings represents primarily the authority on whose prerogative the writ of certiorari proceeded to issue. That is what makes it a prerogative writ. The State is not expected to be represented as if a party litigant, and has no real part to play other than as the symbol of authority. I had therefore to state the parties in the proper manner of certiorari proceedings with the title the appeal now bears.

At pages 318 – 319, his lordship further stated thus: –

“….. It is elementary that certiorari is a prerogative writ of common law origin available to the High Court in the exercise of its supervisory control over an inferior jurisdiction or commit irregularities making its decision bad on its face: see R v. District officer for Kutia people: ex Parte Eti Atem (1961) All NLR 51 at 56 per Ademola CJF. The writ is issued in order that the issuing court may bring the proceedings of the inferior tribunal or court before it for inspection and if there is due cause disclosed, to quash them. It lies only against bodies exercising judicial or quasi-judicial authority and in respect of acts performed by them in that capacity. It does not lie against executive or legislative acts, or mere administrative acts…. In R v. Electricity Commissioners (1924) 1 K.B. 171 at 204-205, Atkin LJ, giving an overview of the functions of the wits of certiorari and prohibition, said:

“The matter comes before us upon rules for writs of prohibition and certiorari which have been discharged by the divisional court. But (sic) writs are of great antiquity, forming part of the process by which the King’s courts restrained courts of inferior jurisdiction from exceeding their powers. Prohibition restrains the tribunal from proceeding further in excess of jurisdiction; certiorari requires the record or order of the court to be sent up to the King’s Bench Division, to have its legality inquired into, and if necessary, to have the order quashed. It is to be noted that both writs deal with questions of excessive jurisdiction, and doubtless in their origin dealt almost exclusively with the jurisdiction of what is described in ordinary parlance as court of justice. But the operation of the writs has extended to control the proceedings of bodies which do not claim to be, and would be recognised as, courts of justice. Whenever anybody of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority they are subject to the controlling jurisdiction of the King’s Bench Division exercised in these writs.”(Underlining provided by me).

Also in the case of ACB PLC V. NWAIGWE (2011) 45 NSCQR (pt. II) 1230 the Supreme Court had cause to dwell on the order of certiorari vis-a-vis an appeal. At pages 1246 – 1247, Onnoghen, JSC; stated thus: –

“…In the case of Oredoyin v. Arowolo (1989) 4 NWLR 172 at 211 an appeal is defined as an invitation to a higher court to review the decision of a lower court to find out whether on the proper consideration of the facts placed before it, and the applicable law, that the court arrived at a correct decision.

On the other hand judicial review is the supervisory jurisdiction of the High Court exercised 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 and also the writ of Habeas corpus. In judicial review, the court is usually concerned with the legality and not the merit of the proceedings, decisions or acts of the affected inferior 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 appeal jurisdiction – see R V. Northumberland Compensation Appeal Tribunal, Ex Parte Shaw (1952) 1 KB 338; R V. Padington North and St. Marylebone Rent Tribunal Ex Parte Peny (1959) 1 QB 229.

The appellate jurisdiction of the High Court and its jurisdiction to award certiorari are two distinct and separate jurisdictions; therefore the absence or existence of a right of appeal or limitation of that right where it exists is irrelevant to the right of the High Court to issue certiorari – see R v. Umuolu Village Group Court, Ex Parte Macaulay, supra. A party aggrieved by a tribunal’s decision may apply for and be granted an order of certiorari even though an alternative remedy may be available to him. See R v. District Officer; Ex Parte Atem (1961) All NLR 51. However, the question is whether the party so aggrieved can employ both remedies simultaneously for the purpose of seeking redress of the unacceptable decision.

I had earlier stated that certiorari is an alternative remedy to any appeal. And consequently both remedies cannot be resorted to by an aggrieved party simultaneously as was done in the instant case. To do so is a clear case of abuse of process of court. When something is said to be an alternative to another, it means you cannot have both of them at the same time or at all.”

(Underlining provided by me).

It is in my considered view clear as crystal from the cases cited hereinbefore that the High Court such as the lower court though vested with the power of judicial review by way of certiorari amongst others pursuant to its Rules of Civil Procedure; the exercise of power in that regard is limited only to inferior tribunals or courts or anybody of persons having legal authority to determine questions affecting the rights of subjects and having the duty to act judicially which act in excess of their legal authority.

It is not in doubt that the lower court being a High Court is a superior court of record as submitted by the Appellant. See Section 6(5)(e) of the 1999 Constitution (as amended). This being the constitutional status of the lower court, it follows in my considered view, that the lower court without first losing the toga or status of a superior court of record by an amendment to the Constitution reducing it to an inferior court, cannot exercise in relation to itself the powers of judicial review that it can by law only exercise in relation to inferior tribunals and/or courts.

Clearly, the lower court did not realise that the objective of the order of certiorari being for the purpose of bringing up before it, for quashing the order or proceedings of an inferior tribunal and/or court, connotes the separateness of the certiorari proceeding and the proceeding or order being complained of. In other words that certiorari proceedings being for the purpose of remedying what an inferior court has done wrong, is never initiated and cannot be initiated or instituted in the very proceedings being sought to be quashed or in which the order being sought to be quashed, was made. Certiorari proceeding is always instituted in the court exercising supervisory authority and not before the very court that committed the wrong being sought to be quashed. This much would appear to clear from the authorities. Indeed, it would appear that the lower court did not bother to acquaint itself with the cases cited by the Appellant at the hearing of the Respondents’ application for judicial review by way of certiorari, otherwise the said court would not have missed the point that was so conspicuous or obvious in the said cases to the effect that a proceeding for judicial review by way of certiorari cannot be instituted or commenced in the very proceeding in which the order complained of was made and before the very court which made the very order being complained of, as the Respondents have done in the instant case.

It is very correct as argued by the Respondents that the law vests a court such as the lower court with the power to set aside its own decision or the decision of a court of co-ordinate jurisdiction. However, the circumstances when this can be done are not only settled or clear from the authorities, but also the procedure to be adopted in this regard. This can only be done by way of motion or by instituting a fresh suit for this purpose. It is in my considered view very clear that the issue of jurisdiction as raised in the instant appeal, transcends or goes beyond questioning the power of the lower court to set aside its own decision or that of a court of co-ordinate jurisdiction. It is whether the lower court has the jurisdiction to exercise its power of setting aside it own decision or that of a court of co-ordinate jurisdiction by the peculiar method employed by the Respondents in their wisdom (i.e. judicial review by way of certiorari) and which the Appellant has in my view aptly described as “strange” against the backdrop of all that has been said before now.

It is my considered view from all that has been said before now, that there was no jurisdiction in the lower court to have entertained the certiorari proceedings brought by the Respondents for the purpose of quashing the ruling of the lower court made on 21/1/2010 inasmuch as the said certiorari proceedings were not instituted, initiated or commenced in relation to the decision and/or proceeding of an inferior court.

The settled position of law is that whenever a court acts without jurisdiction such as by taking on a matter which by law it should not have entertained (as in the instant case); the proceedings in the case including any decision made therein are irredeemably bad and cannot be salvaged. See INEC V. THE REGISTERED TRUSTEES OF THE CHURCH OF NIGERIA (ANGLICAN COMMUNION) DIOCESE OF ORLU [2010] All FWLR (Pt. 511) 1015. Indeed it is settled law that a decision made or judgment delivered without jurisdiction is null and void. Everything done by a court without jurisdiction is a complete waste of time and a nullity. See OSAKUE V. FEDERAL COLLEGE OF EDUCATION (TECHNICAL) ASABA (2010) All FWLR (Pt. 522) 1601; and OLUFEAGBA V. ABDUR-RAHEEM (2010) All FWLR (Pt. 512) 1033. An appellate court such as this Court has the jurisdiction to determine whether the lower court really has jurisdiction to hear or entertain a case or matter when confronted with that issue, just as the lower court itself has the jurisdiction to do this if raised before it. Where an appellate court such as this Court comes to the conclusion that the lower court has no jurisdiction to have entertained the case or matter, it is to strike out the case or matter thus removing it from the lower court’s cause list. See OKOYE V. CENTRE POINT MERCHANT BANK LTD. (2008) All FWLR (pt. 441) 810.

The instant appeal has emanated from the ruling of the lower court delivered on 29/6/2010 granting the Respondents an order re-listing the ruling delivered by it on 21/1/2010 for the purpose of setting it aside for reason of being a nullity and consequently setting aside the said ruling, pursuant to the certiorari proceeding brought before the lower court by the Respondents and which I have found the lower court not to have the jurisdiction to entertain.

Accordingly, by operation of law, the proceedings and the decision arrived at by the lower court on 29/6/2010 in respect of the Respondents’ application for judicial review by way of certiorari dated 18/3/2010 must be and are rendered null and void.

From all that has been said above, Appellant’s issue 1 is accordingly resolved in its favour and against the Respondents.

The proceedings and decision made by the lower court in the Respondents’ application for judicial review by way of certiorari having been rendered null and void by operation of law, it follows that the proceeding and decision of the lower court must be and are hereby set aside leaving this Court with no jurisdiction to consider talk less of making any pronouncement in relation to the subject matter of the null and void proceedings and order made by the lower court. This is against the backdrop of the position of the law that once an appellate court determines that there was no jurisdiction in the court lower to it, the appellate court too would have no jurisdiction of its own to exercise. See EHUWA V. ONDO STATE INDEPENDENT ELECTORAL COMMISSION (2007) All FWLR (Pt. 351) 1415.

I am not unaware that this Court as an intermediate appellate court is enjoined to consider and pronounce on all the issues put before it by the parties. However there are circumstances in which this Court can dispense with doing this. The circumstances amongst others are (i) when an order of retrial is considered desirable or necessary; and (ii) where the judgment appealed against is considered a nullity. See UZUDA V. EBIGAH (2009) All FWLR (Pt. 493) 1224; and SHASI V. SMITH (2010) 6 WRN 39 at 68. Though I had earlier indicated that the appeal will be determined upon the issues formulated by the Appellant, I do not see the need to further dwell on the other issues raised by the Appellant given the success of its issue 1 and which has resulted in the declaration of the certiorari proceeding and decision made therein by the lower court a nullity.

In conclusion, the appeal is meritorious and it is hereby allowed. The certiorari proceeding and decision of the lower court delivered therein on 29/6/2010 are hereby set aside. As the lower court had no jurisdiction to have entertained the Respondents’ application dated 18/3/2010, for judicial review by way of certiorari, the proper order which the lower court ought to have made was one striking out the said application. Accordingly, in place of the order of the lower court granting the application for judicial review by way of certiorari brought by the Respondents and setting aside its ruling of 21/1/2010, this Court enters in its stead an order striking out the said application.

Costs of N30, 000.00 is awarded in favour of the Appellant and against the Respondents jointly and severally.

Appeal succeeds.

SIDI DAUDA BAGE J.C.A: I read in draft the lead Judgment of my learned brother Lokulo-Sodipe (JCA), and I agree. The appeal is meritorious, and is also allowed by me. I abide with the order of striking out contained in the lead Judgment, and the order as to costs as well.

TOM SHAIBU YAKUBU J.C.A: I was privileged and had read the draft of the judgment, just rendered by my learned brother – AYOBODE O. LOKULO-SODIPE, JCA who elucidatingly dealt with the issues in the appeal to my full satisfaction. It is indeed educative and the bottom line is that just as the Court below possessed no power to sit on appeal on her own decision, so also it has no power to review her own decision vide a certiorari proceedings.

I too allow the appeal and abide by the consequential orders contained in the lead judgment.

Appearances

Ewaen EduwuFor Appellant

AND

C. UdehFor Respondent