Mamman Abubakar Danmusa V. Dr. Mustapha Muhammadu Inuwa, Chairman Caretaker Committee, Dan Musa Local Govt. & Anor (2007)
LawGlobal-Hub Lead Judgment Report
ARIWOOLA, J.C.A.
This appeal emanated from the decision of Katsina State High Court, per Abdullahi Yusuf, J. delivered on 17th October, 2002 wherein the appellant’s application was dismissed.
Briefly put, the facts of the case are that sometime on 7/10/02, the appellant had brought an ex parte application dated the same 7/10/2002.
The said application was for the following reliefs:
“Leave of this Honourable Court to apply for an order of prohibition against.
(i) Dr. Mustapha Muhammadu Inuwa, Chairman Caretaker Committee Danmusa Local Government and the Permanent Secretary Inspectorate Department of the Local Government, Katsina State from considering a proposal to build a new Local Government Secretariat costing for (sic) built by Sani AbuMinister at the cost of twenty six million naira and from executing the said proposal.
(ii) An order making the grant of the leave to the applicant to act as a stay of all actions in respect
of the building of the secretariat until the final determination of the substantive matter.
(iii) And such further order or orders as this Honourable Court deem fit and just to make in the circumstance.”
Attached to the said application were, statement in support containing the name, address and description of the applicant, and an affidavit of 21 paragraphs to which the applicant personally deposed. Annexed to the said affidavit are various documents marked exhibits A. B. C. D and E respectively.
The said application was heard by the court on 17th October, 2002 and ruling was delivered on the same day. The trial court in his ruling dismissed the appellant’s application for lacking in merits.
Dissatisfied with the said ruling, the applicant filed a notice of appeal on 21/10/02, containing three grounds of appeal as follows:
“GROUNDS OF APPEAL:
Ground One
The learned trial Judge of the Katsina State High Court per Abdullahi Yusuf. J. erred in law, when he dismissed appellant’s application before him on the grounds inter alia that appellant then (sic) no locus standi to institute the action.
Particulars of Errors
(a) Appellant has shown in paragraphs 1, 2, 11, 12, 17, 18 and 19 of his affidavit in support of the application that he has sufficient interest on how his Local Government Area is being governed having being a contributor through personal effort to seeing that the youth in Danmusa Local Government are employed.
(b) Appellant has sufficient interest in seeing to the welfare of his people in Danmusa Local Government Area.
(c) Corruption or Corrupt practices will prejudice this effort at providing prioritized amenities and thus employment to the people.
(d) Appellant has a right or standing to stop corruption before it manifest through due process of the law.
(e) Order 42 rules 5 (sic) of the High Court (Civil Procedure) Rules of Katsina State only requires applicant to show sufficient interest and not private or personal interest.
(f) The doctrine of private, personal Interest or sustenance of injury has since given way to sufficiency of Interest.
Ground two
The trial learned Judge of the High Court of Justice Katsina State misdirected himself at law when held as follows in his ruling at p. (sic).
“I have seriously considered the applicant’s prayers, the grounds upon which the application was brought as well as the affidavit in support of the application. The type of order requested by the applicant namely, order of prohibition will normally not issue against a body which does not act as a judicial or quasi-judicial tribunal (sic) will also not issue against a body in respect of Ministerial or Legislative Act. Like mandamus, prohibition will not issue on the application of a stranger, he must have locus standi. On this refer to the case of Ministry of Education Western Region, Ex parte Emmanuel Akapo (1957) WRNLR 119.
In the case on hand, the applicant’s prayer is for this court to grant an order of prohibition against
the 1st respondent from considering a proposal to build a New Local Government Secretariat costing more than N40 million in addition to the one built by Sani Abu Ministra (sic) at the cost of N26 million and from executing the said proposal.”
Particulars of Misdirection
(a) What was before the lower court at that stage was an application for leave to apply for an order of prohibition.
(b) The lower court in its ruling treated the application for leave as if he was deciding the main application for an order of prohibition even before the respondents were heard thereby causing a great deal of miscarriage of justice.
(c) The issue of the appropriateness or otherwise of an order of prohibition against the respondents was raised suo motu in a ruling on application for leave and without hearing or calling on the appellant to address him on same thereby causing a miscarriage of justice.
(d) An order of prohibition can lie against administrative authorities to prohibit them from exceeding their powers or misusing them.
(e) Appellant had shown that the proposal in question was not contained in the budgetary provisions of the Local Government for the year 2002 and can only prove this assertion on the hearing of the motion on notice if leave was granted.
Ground Three
“The trial Judge erred in law when he dismissed the appellant’s application for leave rather than refusing same thereby precluding him from applying before different Judge as provided for by the rules of the High Court of Katsina State.”
The appellant filed his brief of argument dated 4/11/02 on the 6/11/02. From the said brief of argument were formulated three issues for determination of this appeal as follows:-
Issues for Determination:
“1. Whether the learned trial Judge was right to have raised suo motu and decided on the issue of the appropriateness or otherwise of the appellant seeking an order of prohibition against the respondents.
- Whether the learned trial Judge was right to have dismissed the application instead of refusing same in view of the clear provisions of Order 42 rule 3 (8) of the High Court (Civil Procedure) Rules of Katsina State.
- Whether appellant had sufficient interest in the subject matter of the case before the trial High Court to have brought the application.”
The 1st respondent subsequently filed his brief of argument dated 30th January, 2006 on the same date. He did not formulate any issue for determination different from the issues already distilled by the appellant from the grounds of appeal contained in the notice of appeal. He relied on the said issues and responded to them.
It is noteworthy that the 2nd respondent did not file any brief of argument in this appeal.
In arguing the appeal, the appellant took the issues seriatim-
On issue No.1. the appellant contended that the trial Judge was wrong to have suo mow raised in his ruling the issue of the appropriateness or otherwise of an order of prohibition against the respondents. The appellant says his application before the lower court was only for an order of the court granting him leave to apply for an order of prohibition against the respondents. He referred to Order 42, rules 3(1), (2)(a), (b), 3 – 10 of the High Court (Civil Procedure) Rules of Katsina State. He submitted that at that stage all that was required was the leave of the court. He referred to paragraphs 1 and 8 of page 22 of the record of appeal for the ruling of the trial court. He contended that no where in the record of proceedings was the issue of whether an order of prohibition can lie against the respondents raised. The issue was raised suo motu by the learned trial Judge and without inviting the appellant to address him on same.
The appellant submitted that the misdirection having prejudged the real matter in controversy even before the respondents were put on notice of the substantive application for prohibition has occasioned a miscarriage of justice. He submitted further that it is the duty of the trial court not to pronounce on the substantive issue while he was only engaged in the determination of the application for leave.
He cited: University Press Ltd. v. I. K. Martins (Nig.) Limited (2000) 4 NWLR (pt. 654) 584 at 595 and 600. The appellant concluded by answering the 1st issue on the negative.
On issue No.2, which the appellant says arose from ground 3, he contended that it was wrong and erroneous for the learned trial Judge to have dismissed the application for leave instead of refusing same. He contended further that the ex parte application was not decided on the merits by the trial Judge but on lack of standing to bring the application.
The appellant referred to Order 42 rule 3(8) of the High Court (Civil Procedure) Rules of Katsina State which he contended allows an applicant whose application for leave was refused in chambers to apply to another Judge in the court. He asserted that the application was heard in the chambers. As learned trial Judge ought to have refused the application only and strike it our instead of dismissing it. He submitted further that by the dismissal order, the trial Judge had precluded the appellant from exercising the option opened to him to apply to another Judge and this has occasioned miscarriage of justice. This issue is also answered in the negative.
Issue No.3 is said to have arisen from grounds 1 and 2.
Appellant answers it in the positive and submitted that he had sufficient interest in the matter on which the application before the lower court was predicated. Appellant contended that the law had been that for a person to seek for the obligation provided for by section 6(6) of 1999 Constitution he must have a legal capacity or standing to sue. He contended further that earlier, a person who desired to institute an action must show that he is either personally affected or has suffered personal injury. But he submitted that emphasis is now being placed on sufficiency of interest in the subject matter of dispute. Thus, access to court now is dependent on sufficiency of interest to institute the action. He cited: Adesanya v. President. Federal Republic of Nigeria & Anor, (1981) 1 NCLR 249: Attorney-General of Kaduna State v. Hassan (1984) 5 NCLR 177 at 178 and 183.
In the instant case, the appellant referred to Order 42 rule 3(5) of the High Court (Civil Procedure) Rules of Katsina State which requires an applicant for leave to show sufficient interest and not personal interest or injury sustained. On whether the appellant had sufficient interest in the subject matter to which the application relates he referred to paragraphs 1,2,11,12,15,17 and 18 of the affidavit in support of the application for leave to apply for an order of prohibition.
The appellant further submitted that as a citizen of Danmusa, he has a right to stop the commission of a criminal offence. Whether he does so by reporting to the Police or invoking the jurisdiction of the court as sought to be done at the High Court is his decision.
The appellant finally urged the court to allow the appeal, set aside the ruling of the Katsina State High Court per Hon. Justice Abdullahi Yusuf and remit the case back to the High Court for the application for leave to be heard by a different Judge.
In replying, learned counsel to the 1st respondent took the issues for determination one after the other. On issue No. 1, learned counsel submitted that the trial Judge rightly raised the issue of the appropriateness or otherwise of an order of prohibition against the 1st respondent at the stage he did. He referred to Order 42 rule 3(5) of the High Court (Civil Procedure) Rules of Katsina State which he submitted gives the trial Judge discretion to either grant or refuse such application. Learned counsel further submitted that the trial Judge was correct with his ruling, in view of the nature of the relief sought, for leave by the applicant. He contended that such an order will only issue against an inferior tribunal or anybody of persons which has a legal authority to determine questions affecting the tights of a subject from exceeding its jurisdiction. He cited: Okoye v. Lagos State Government (1990) 3 NWLR (Pt 136) 115 at 127.
Learned counsel further submitted that the 1st respondent being an Executive body was not acting in any judicial or adjudicatory capacity hence the trial Judge was right in not granting leave as he was not bound to do so.
On the point taken by the appellant that the trial Judge was wrong to have raised the issue whether an order of prohibition can lie against the 1st respondent suo motu, the learned counsel to 1st respondent submitted that the trial Judge was right in raising the issue suo motu without inviting parties to address him, being a point of law. He cited; Adekunle v. University of Port Harcourt (1991) 3 NWLR (Pt. 181) 534 at 545. Learned counsel submitted that the raising of the point suo motu by the trial Judge did not occasion any miscarriage of justice and he urged the court to so hold.
On issue No.2 which arose from ground 3 of the grounds of appeal, learned counsel to the 1st respondent submitted that the entire procedure adopted by the appellant was an abuse of court process. He referred to pages 5 – 16 of the record of proceedings and contended that no law supports the procedure adopted by the appellant. He submitted that the trial Judge was right in dismissing the application.
He cited: Dieli v. Iwuno (1996) 4 NWLR (Pt. 445) 622; (1996) 4 SCNJ 58 at 65; CBN v. Ahmed (2001) 11 NWLR (Pt.724) 369; (2001) 5 SCNJ 307 at 323.
Learned counsel referred to Order 42 rule 3(8) High Court (Civil Procedure) Rules of Katsina State and conceded that the 1st respondent was not represented at the trial court not having been put on notice. He however submitted that there is nothing on the record of proceedings to reveal that the application was taken in chambers.
On issue No.3, learned counsel submitted that the appellant did not have sufficient interest in the subject matter to entitle him to institute the action at the trial court. He contended that the case of Adesanya v. President of The Federal Republic of Nigeria (supra) cited by the appellant rather that being of use to him operates against the application.
At this stage, amazingly, the learned counsel to the 1st respondent now raises the issue of competence of ground No.1 from where issue No.3 was said to have been formulated. He contended that issues of fact are involved with reference to some paragraphs of the affidavit in support of the appellant’s application but no leave of court was sought before the filing of the appeal. He submitted that the appeal involves mixed law and facts hence he needed leave of court. He cited: Osasona v. Ajayi (2004) 14 NWLR (Pt. 894) 527; (2004) Vol. 18 NSCQR 409 at 428: Okoye v. Chief Wilds Officer (2005) Vol. 22 NSCQR 210 at 224 – 225.
Learned counsel further submitted that failure to obtain leave by the appellant offends section 241 of the 1999 Constitution of the Federal Republic of Nigeria. He cited: Orakosim v Menkiti (2001) 9 NWLR (Pt.719) 529: (2001) 5 SCNJ 1 at 8 – 9. He urged the court to discountenance the argument of the appellant on the incompetent ground and the issue formulated therefrom. He finally urged the court to uphold the ruling of the trial court and dismiss the appeal for lacking in merit. First and foremost, before I proceed to consider the issues raised for determination of this appeal, I consider it appropriate and proper to consider the objection raised on the competence of one of the grounds of appeal, contained in the notice of appeal.
Ordinarily, a challenge to the competence of a ground of appeal is a fundamental point of law and the point must be dealt with at the earliest opportunity in the proceedings. If a ground of appeal is incompetent, then the court has no jurisdiction to entertain the ground and it will be struck out for that reason. See: First Bank of Nigeria Plc v. A.C.B. Ltd. (2006) 1 NWLR (Pt. 962) 438 at 462.
However, the rules of this court has laid it down, how objection may be taken to the competence of a ground of appeal or the entire appeal itself. Order 3 rule 15(1) and (3). Court of Appeal Rules, 2002 provides as follows:-
“15(1) A respondent intending to rely upon a preliminary objection to the hearing of the appeal shall give the appellant three clear days notice thereof before the hearing, setting out the grounds of objection and shall file such notice together with twenty copies thereof with the Registrar within the same time.
(3) If the respondent fails to comply with this rule the court may refuse to entertain the objection or may adjourn the healing thereof at the cost of the respondent or make such other order as it thinks fit.”
The notice of preliminary objection can also be given in the respondent’s brief of argument. But a party who chooses to argue the objection in the brief of argument must seek and obtain the leave of court to move the objection before the oral hearing of the appeal commences. See: Nsirim v. Nsirim (1990) 3 NWLR (Pt. 138) 285; Ok
olo v. U.B.N Ltd. (1998) 2 NWLR (Pt. 539) 618; Arewa iles Plc v. Abdullahi & Bros. Musawa Ltd. (1998) 6 NWLR (Pt.554) 508; Ajide v. Kelani (1985) 3 NWLR (Pt. 12) 248; Mkpen Tiza & 1 Or. v. Lorakpen Begha (2005) 33 WRN 158 at 171: (2005) 15 NWLR (Pt.949) 616: (2005) 6 SCM 164; Onochie & Anor. v. Odogwu & Anor. (2006) 6 NWLR (Pt. 975) 65; (2006) 2 SCM 95 at 101; (2006) 17 WRN 1 at 20: Ben v. The State (2006) 16 NWLR (Pt.1006) 582; (2006) 12 SCM (Pt. 2) 71.
It should be noted that the object of the above rule of this court is to give an appellant before the hearing of the appeal, notice of any preliminary objection to the hearing of his appeal and the grounds thereof in order for him to prepare to meet the objection at the hearing of his appeal.
Furthermore, where a respondent did not raise his preliminary objection duly by filing notice giving the adversary the required three days in advance, but he chose to raise it in his brief of argument, he must raise the preliminary objection separately and specifically but not just by the way. Otherwise, such an objection will be incompetent and will not be countenanced.
In Alimi Akanbi Dada v. Chief Jonathan Dosunmu (2006) 18 NWLR (Pt. 1010) 134; (2006) 12 SCM (Pt.2) 108 at 118. the Supreme Court states thus:
“… for an objection to the competence of ground or grounds of appeal to be validly raised and thereby worthy of consideration by the court, the respondent must first and foremost file a motion on notice on the court stating the grounds on which the objection is based so as to give notice to the appellant, otherwise, the appellant would be taken by surprise.”
In the instant case, it is clear that the 1st respondent did not file any notice of motion or notice of preliminary objection. It is also clear that he did not raise the preliminary objection separately and
specifically in his brief of argument. He merely raised the issue in passing and by the way in his brief of argument. I am therefore of the firm view that the 1st respondent could not have meant to be taken serious on his objection with the way he raised it. The objection is, to say the least, lacking in merit and should be discountenanced.
Accordingly, it is hereby discountenanced for being incompetent.
Now to the issues raised for the determination of this appeal. Issue No. 1 is “whether the learned trial Judge was right to have raised suo motu and decided on the issue of the appropriateness or otherwise of the appellant seeking an order of prohibition against the respondents”.
From the record of proceedings in this appeal, it is clear that the appellant’s application was brought before the trial court pursuant to Order 42 of the High Court (Civil Procedure) Rules of Katsina State. The relevant provision of the said Rules to this case goes thus:
Order 42:
“1(1) An application for:
(a) an order of mandamus, prohibition or certiorari … shall be made by way of an application for judicial review in accordance with the provisions of this order 3(1) No application for judicial review shall be made unless the leave of the court has been obtained in accordance with this rule.
(2) An application for leave shall be made ex parte to the court, except in vacation when it may be made to a Judge in chambers, and shall be supported:
(a) by a statement, setting out the name and description of the applicant, the relief sought and the grounds on which it is sought: and
(b) by affidavit, to be filed with the application, verifying the facts relied on”
As earlier stated in this judgment, the appellant’s application before the trial court “as for-
….. leave of this Honourable Court to apply for an order of prohibition against.
The said application, as required by the rules of the lower court was brought ex parte. In other words, at that stage of considering the ex parte application for leave to apply”, all that the trial court needs consider with the application includes the statement, setting out the name and description of the applicant, the relief sought and the grounds, on which the relief is sought, and the affidavit evidence filed to verify the facts relied on by the applicant. See: Order 42 rule 2(a) and (b), High Court (Civil Procedure) Rules of Katsina State. It is clear from the above that in an application for leave to apply for judicial review, only the applicant and the court are involved in the game. The respondent does not come in at all in the court’s consideration whether or not to grant the application for leave. The application is granted or refused mainly on the processes filed with the application. Leave to apply for judicial review, is almost granted by the court automatically once the court is satisfied with the processes filed. When leave has been granted to an applicant to make an application for judicial review, the application shall be made, ordinarily by originating motion, except in vacation when it may be made by originating summons to a Judge in chambers. Then, the motion on notice or summons shall be served on all persons directly affected. See; Order 42 rule 5, High Court (Civil procedure) Rules of Katsina State. And after leave has been granted, unless the court that granted leave has otherwise directed, there shall be at least ten (10) days between the service of the motion on notice or summons and the day named therein for the hearing of the application, which shall be entered for hearing within fourteen (14) days after the grant of leave.
However, the court is empowered not to grant leave unless it considers that the applicant has sufficient interest in the matter to which the application relates. See: Order 42 rule 3(5) of the High Court (Civil Procedure) Rules.
At the stage of considering an application for leave, since the substantive application is yet to be filed, and of course, that is what leave of court is being sought to do, the trial court is not expected to go into the merit of the subject matter to be contained in the substantive application. All the court is expected to do only is, consider whether the applicant is sufficiently interested in the matter to which the application relates and nothing more.
In the instant case, it appears that the learned trial Judge, with Respect, did not appreciate or understand what the application for leave before his court was all about. Otherwise, what does one say to the ruling of the court on the application which reads as follows:
“The applicant brought this application by way of motion ex parte pursuant to Order 42 rule 1(a) of High court (Civil Procedure) Rules of Katsina State, praying for an order prohibiting the 1st respondent Dr. Mustapha Inuwa the Chairman Caretaker Committee of Dan musa Local Government Council of Kastina State from considering a proposal to build a new Secretariat for more than N40 million in addition to one built by Sani Abu Minister at the cost of N26 million and from executing the same proposal.” (italics mine)
The above represents the first paragraph of the decision of the lower court being appealed against. In concluding the said ruling, the learned trial Judge stated further as follows:
“In the case on hand, the applicant’s prayer is for this Court to grant an order of prohibition against the 1st Respondent from considering a proposal to build a new Local Government Secretariat costing more than N40. million in addition to the one build (sic) by Sani Abu Minister at the cost ofN26 million and from executing the said proposal. If one looks at the prayer one will see that the said issue does not give the applicant locus standi to bring the action….
he could await the commencement of such project then report the 1st respondent to the Independent Corrupt Practices and other Related Offences Commission for proper prosecution.
In view of the foregoing and what I stated earlier this application lacks merit and ought to be dismissed and it is hereby dismissed.” (italics mine)
From the above, there is no doubt that the learned trial Judge failed totally to comprehend the purport of the application before him. Indeed he went off the track completely and concluded the substantive matter which was not yet before his court. In other words, the taking of the issue of the appropriateness or otherwise of the appellant seeking an order of prohibition against the respondent, suo motu without allowing counsel to address him on the issue is improper, to say the least. The Supreme Court has warned repeatedly that a court should not take up a point suo motu and decide the matter before it on that point without hearing the parties. See: Lahan v. Lajoyetan (1972) 6 SC 190; Kuti v. Jibowu (1972) 6 SC 147; Kuti v. Balogun (1978) 1 SC 53. Olusanya v. Olusanya (1983) 1 SCNLR 134: Robert C. Okafor & Ors. v. Ogbuefi O. Ike Nwude & Ors. (2001) 3 WRN 105 at 134.
From the above, it is clear and need no further argument that the trial Judge was wrong to have taken up the issue of appropriateness or otherwise of the appellant’s application seeking an order of prohibition against the respondent suo motu, when indeed the application was yet to be filed before the court.
This leads me to the consideration of the second issue which emanated from the issue raised suo motu by the trial Judge. That is, the dismissal of the appellant’s “application for leave to apply.”
Without any further ado, it is clear that the learned trial Judge was wrong to have dismissed the application, instead at best of refusing same and have it struck out. In the circumstance, issues 1 & 2 are resolved in favour of the appellant.
On issue No.3, whether the appellant has sufficient interest in the subject matter of the case before the trial court to have brought the application, I am of the view that the consideration should be left for the trial court who has the prerogative to grant leave to apply. I shall therefore not deal with issue No.3. My decision on issues No. 1 & 2 above has disposed of the appeal.
In the final analysis, this appeal succeeds and it is allowed as it has merit. Accordingly, the decision of the lower court delivered on 17th October, 2002 by Abdullahi Yusuf, J. in suit No. KTH/190/M/02 is hereby set aside. In the circumstance, the case shall be and is hereby remitted back to the lower court for the Chief Judge of Katsina State High Court to reassign it to another Judge to consider the applicant’s application for leave on merit.
I make no order as to costs.
Other Citations: (2007)LCN/2607(CA)
