Ben Agwuegbo V. Sam Dan Kagoma (2000)
LawGlobal-Hub Lead Judgment Report
MOHAMMED, J.C.A.
: This appeal is against the judgment of Abiriyi, J. of the Kaduna State High Court of Justice, Kaduna delivered on 25/11/96 granting an order of certiorari quashing the judgment of the Kaduna State Rent Tribunal No.2 of 27/8/96. The appellant as the plaintiff before the Rent Tribunal dragged the respondent as the defendant to recover a rented premises known as No. 1 Old Market Road, Barnawa, Kaduna and arrears of rent. At the end of the proceedings before the Rent Tribunal, the respondent was ordered to vacate the rented premises and pay arrears of rent. In addition, the Rent Tribunal without any relief claimed before it by the appellant as the plaintiff, also suo motu made the following order convicting and sentencing the respondent for an offence punishable under section 20(2) of the Rent Control and the Recovery of Premises (Amendment) Edict, 1996. The order at page 8 of the record reads:-
“The Tribunal will not close its eyes to the attitude and behaviour of the defendant who deliberately and intentionally harassed and annoyed the Landlord by deceiving him to occupy a room and later reporting him to the police for alleged trespass as a result of which the plaintiff was arrested. This the defendant clearly stated in his testimony. By so doing this Tribunal finds it necessary to invoke the provisions of section 20(2) of the Rent Control and the Recovery of Premises (Amendment) Edict of 1996 and it is accordingly ordered that the defendant is guilty of an offence of harassing and annoying his Landlord and is accordingly convicted under the above cited section and he is accordingly (sic) sentenced to fine of N1,000 or 1 month imprisonment in lieu of fine.”
Aggrieved with this decision, the respondent after paying the fine, with the leave of the Kaduna High Court initiated certiorari proceedings before that court for the purpose of quashing the decision of the Rent Tribunal on grounds among others that he was denied fair hearing in that he was convicted, sentenced to fine or imprisonment without being charged, tried or given the chance to defend himself. The High Court after hearing the application granted the order of certiorari as prayed and quashed the entire proceedings and judgment of the Rent tribunal containing the conviction and sentence passed on the respondent. In addition, the High Court also awarded the sum of N50,000.00 damages to the respondent against the appellant for the embarrassment, trauma and ridicule suffered by the respondent as the result of the wrongful conviction and sentence. It is against that judgment which was delivered on 23/11/96 that the appellant has now appealed to this court. In line with the requirements of the rules of this court, briefs of argument were duly filed and served on behalf of the appellant and the respondent by their respective learned counsel. In the appellant’s brief, the following 5 issues were identified for the determination of the appeal:-
“(a) Whether the High Court still has jurisdiction to quash the proceedings of the Rent Tribunal in view of the Rent Control and Recovery of Premises (Amendment) Edict No.4 of 1996.
In the alternative whether it was proper to go by way of judicial review instead of an appeal when the very remedy sought for were clearly stated to be available on appeal and there was no manifest error on the face of the record.
(b) What is the proper mode of instituting a case of the Kaduna State Rent Tribunal i.e. Are parties expected to file pleadings at the tribunal?
(c) Whether by the provision of section 7 of the Rent Control and Recovery of Premises Edict No.4 of 1996 of Kaduna State, a trial thereunder violates or complies with section 5(2) of the Criminal Procedure Code of Kaduna State and whether a Rent Tribunal lacks jurisdiction to try an offence created by the said section.
(d) Whether it is proper for a court to speculate and rationalise in the absence of necessary evidence to support same or to give judgment/ruling based on the evidence available.
(e) Whether the learned trial Judge was right in awarding the sum of N50,000.00 when same was not proved against the 1st appellant”.
In the respondent’s brief which contains a preliminary objection to the appeal, 4 Issues were formulated for the determination of the appeal. The issues are:-
“(i) Whether the Rent Tribunal Kaduna State has been conferred with criminal jurisdiction by Kaduna State Edict No.4 of 1996; and if its has, whether the Criminal Procedure Code and the 1979 Constitution of the Federal Republic of Nigeria (as amended) are applicable.
(ii) Whether the High Court has the jurisdiction to listen to and determine the certiorari proceedings filed before it by the respondent.
(iii) Whether the High Court rightly found that there was no application before the Tribunal written by the appellant as required by section 8 (1) of the Rent Control and Recovery of Premises Law Cap. 132, Laws of Kaduna State, 1991.
(iv) Whether the High Court was right in awarding N50,000.00 to the respondent as damages.”
I shall first dispose of the preliminary objection contained in the respondent’s brief of argument which was filed with the leave of this court on 29/9/98. The preliminary objection relates to grounds 1, 4, 5 and 6 of the appellant’s grounds of appeal. However, as the result of the objection, the appellant duly filed a motion on notice on 22/3/99 to amend the affected grounds of appeal in reaction to the preliminary objection. All the reliefs sought by the appellant in that motion including leave to appeal were granted by this court on 25/11/99 which effectively took care of the respondent’s preliminary objection which therefore was no longer alive on 23/3/2000 when this appeal was heard. As the amended grounds of appeal are not those being challenged in the preliminary objection of the respondent, I shall ignore the objection in the determination of the appeal.
Looking at the 5 issues in the appellant’s brief and the 4 issues identified in the respondent’s brief, it is plain that issues (b) and (c) in the appellant’s brief and issue (i) in the respondent’s brief earlier quoted in this judgment were formulated in relation to the proceedings and decision of the Kaduna State Rent Tribunal which is not directly on appeal before this court. What is on appeal before this court is the decision of the Kaduna State High Court of Justice which granted the respondent’s reliefs in certiorari order quashing the proceedings and judgment of the Kaduna Rent Tribunal. Therefore as the appellant’s issues (b) and (c) and the respondent’s issue (i) do not relate to the decision of the High Court now on appeal, the issues are incompetent and are accordingly hereby struck out. See Ogoyi v. Umagba (1995) 9 NWLR (Pt.419) 283 at 293 where Ogwuegbu, JSC faced with similar situation now at hand struck out the grounds of appeal and the issues arising from them which complained on the errors of the High Court rather than those of the Court of Appeal after stating the law as follows:-
“By Section 219 of the 1979 Constitution, only the Court of Appeal has jurisdiction to the exclusion of any other court of law in Nigeria to hear and determine appeals from the Federal High Court, the High Court of a State, Sharia Court of Appeal of a State and Customary Court of Appeal of a State. This court is therefore not competent to hear appeals straight from the High Court, Sharia Court of Appeal or Customary Court of Appeal.”
It is for the same reason that I hold that this court has no jurisdiction to determine this appeal an appellant’s issues (b) and (c) and the respondent’s issue (i) which relate directly to the proceedings of the Rent Tribunal in respect of which only the Appeal Tribunal constituted under section 21 of the Rent Control and Recovery of Premises Law, Cap. 132 Laws of Kaduna State as amended by Edict No.4 of 1996, has jurisdiction to entertain. See also Adio v. The State (1986) 2 NWLR (Pt.24) 581 and Harriman v. Harriman (1987) 3 NWLR (Pt.60) 244. The issues remaining for the determination of the appeal are appellant’s issues (a), (d) and (e) and the respondent’s issues (ii), (iii) and (iv) respectively which are virtually the same although differently worded. The issues as framed in the respondent’s brief of argument are more comprehensive and I shall proceed to determine the appeal on the remaining 3 issues in the respondent’s brief of argument.
First to be determined is whether the High Court has jurisdiction to listen to and determine the certiorari proceedings filed before it by the respondent. Learned counsel to the appellant had submitted that section 8(21A) of the Rent Control and Recovery of Premises Edict No.4 of 1996 of Kaduna State empowered the High Court only to hear appeals against any conviction and sentence in respect of offences created under section 20 of the Edict which in law over-rides the provisions of Order 42 of the High Court (Civil Procedure) Rules. That not having come by way of appeal against decision of the Rent Tribunal, the lower court had no jurisdiction to entertain the reliefs sought by the respondent for certiorari order.
It was the contention of the respondent however, that his application for certiorari order under Order 42 of the Kaduna State High Court (Civil Procedure) Rules was proper before the lower court which had supervisory jurisdiction to correct the proceedings of all inferior courts and tribunals of which the Rent Tribunal was one particularly where such inferior courts or tribunals acted in excess of their jurisdiction. That the appellate jurisdiction conferred on the High Court in respect of the offences created in the Rent Edict relates only to offences that have validly and properly tried by a court of competent jurisdiction. But where such offences were tried by a Tribunal which has no jurisdiction to try them, the trial is a nullity and therefore certiorari can issue to quash the proceedings particularly when the Tribunal was not conferred with the jurisdiction to try the offences under the Edict. That having regard to the case of The Queen v. The Governor-in-Council, Western Nigeria Ex-Parte Laniyan Ojo (1962) WNLR 62 at 63, the certiorari proceedings taken by the respondent at lower court were in order.
In the determination of this Issue of whether the lower court has jurisdiction to entertain the respondent’s application for certiorari order to quash the proceedings and judgment of the Kaduna Rent Tribunal, the answer does not lie in the Kaduna State Rent Control and Recovery of Premises Law Cap. 132 of the Laws of Kaduna State, 1991 as amended by the Kaduna State Rent Control and Recovery of Premises (Amendment) Edict No.4 of 1996 as strongly viewed by the appellant in his argument. The answer certainly lies in the provision of the 1979 constitution and any rules made under it, the Kaduna State High Court Law and the Kaduna State High Court (Civil Procedure) Rules, 1987.
The prerogative writ or order of certiorari is designed to check the excesses and arbitrary decisions of inferior courts and tribunals whereby such courts and tribunals are compelled to bring up their records, proceedings and judgments to the High Court for correction or to be quashed in appropriate cases. The Kaduna State High Court, like all other State High Courts created under the 1979 Constitution, apart from its general jurisdiction conferred under section 236 of the Constitution, is also conferred with special jurisdiction under section 42 of the Constitution to deal with cases of alleged violation of Fundamental Rights conferred on persons under Chapter IV of the 1979 Constitution. Section 42(1) and (3) of the 1979 Constitution where this special jurisdiction is conferred on the High Court of each State reads:-
“42(1) Any person who alleges that any of the provisions of this Chapter has been, is being or likely to be contravened in any State in relation to him may apply to a High Court in that State for redress.
(2) …
(3) The Chief Justice of Nigeria may make rules with respect to the practice and procedure of a High Court for the purpose of this Section.”
In the Fundamental Rights (Enforcement Procedure) Rule 1979 made pursuant to sub-section (3) of section 22 of the 1979 Constitution above by the Chief Justice of Nigeria which came into force on 1/1/1980, Order 3 of the rules made specific provisions for certiorari application where rule 1(2) of this Order states:-
“(2) Where an order to remove any proceedings for the purpose of their being quashed is made, in any such case, the order shall direct that the proceedings shall be quashed forthwith on their removal into the court which heard the application.”
In the present case where the respondent’s application at the court below was centered on denial of fair hearing by the Rent Tribunal, the application was quite in order and the lower court has jurisdiction to hear and determine the application as it did having regard to the right conferred under the 1979 Constitution. It is observed however that the application which is the subject of the present appeal was not brought pursuant to the right under the 1979 Constitution.
The lower court also has jurisdiction to entertain and determine the respondent’s application for certiorari order to quash the proceedings and judgment of the Kaduna Rent Tribunal by virtue of the provisions of section 24 of the Kaduna State High Court Law Cap. 67 Laws of Kaduna State, 1991 which provides:-
“24. The prerogative writs of mandamus requiring an act to be done or an order of prohibition prohibiting any proceedings, or matter, or an order of certiorari removing any proceedings cause or matter into the High Court for any purpose may be issued by the court in accordance with the rules and procedure applicable in the court or where the rules do not make any provisions in accordance with a provision which the court thinks just and reasonable.”
The procedure for the exercise of this special jurisdiction by the High Court is specified in Order 42 of the Kaduna State High Court (Civil Procedure) Rules 1987 rule 1(1) of which states:-
“1(1) An application for;
(a) an order of mandamus, prohibition or certiorari; or
(b) an injunction restraining a person from acting in any office in which he is not entitled to act; shall be made by way of an application for judicial review in accordance with the provisions of this Order.”
It is quite plain therefore that by virtue of section 24 of the High Court Law and Order 42 of the High Court (Civil Procedure) Rules of Kaduna State, the lower court also has jurisdiction by way of application for judicial review to hear and determine the respondent’s application for certiorari order. Inspite of his right to appeal against the judgment of the Rent Tribunal conferred by section 21 of the Rent Control and Recovery of Premises Law of Kaduna State as amended, the respondent’s right to opt for a relief by way of an application for certiorari order at the High Court to quash the proceedings and judgment of the Rent Tribunal for having acted in excess of its jurisdiction is also preserved under section 42 of the 1979 Constitution of the Federal Republic of Nigeria and section 24 of the Kaduna State High Court Law Cap. 67 of the Laws of Kaduna State, 1991. For the foregoing reasons therefore, the lower court indeed has jurisdiction to hear the certiorari proceedings filed by the respondent.
The second issue for determination is whether the lower court was right in granting the application having regard to the grounds relied upon by the applicant in support of the application. On this issue it was argued by the appellant that in compliance with section 8(1) of the Rent Control and Recovery of Premises Law Cap. 132 of the Laws of Kaduna State 1991, his application by way of writ of summons was duly filed at the Rent Tribunal before his case was heard by the Tribunal which granted him reliefs in its judgment. That for this reason, the finding by the lower court that there was no application filed at the Rent Tribunal by the appellant who was the plaintiff is therefore perverse on the authority of the cases cited and relied upon one of which is Odubeko v. Fowler & Anor (1993) 9 SCNJ 185 at 198, (1993) 7 NWLR (Pt. 308) 637. On the conviction and sentence of the respondent by the Rent Tribunal, it was argued for the appellant that the conviction and sentence were in order as the Rent Tribunal and Recovery of Premises Law Cap. 132 of the Laws of Kaduna as amended which created the offence for which the respondent was convicted, by inference gave the Rent Tribunal jurisdiction to try the respondent. As for the procedure adopted by the Rent Tribunal in convicting the respondent, learned counsel for the appellant contended that the case having been specifically adjourned to allow the respondent the chance to cross-examine PW1, give his own evidence and call his own witnesses, the proceedings cannot be said to have offended section 33 of the 1979 constitution taking into consideration the case of Kotoye v. Saraki (1994) 7-8 SCNJ 524 at 561-562, (1990) 7 NWLR (Pt. 357) 414.
The reaction of the respondent on this issue is that the record of proceedings do not show that there was any application to the Tribunal by the appellant seeking any relief before the hearing. That by virtue of section 8 of the Rent Control and Recovery of Premises of Kaduna State, 1991, the exercise of any jurisdiction by the Rent Tribunal is predicted on the filing of an application before it and that in the absence of an application the Tribunal shall not have any jurisdiction in a matter before it. Relying on the case of Odua Investment Company Ltd. v. Talabi (1997) 10 NWLR (Pt.523) 1 at 21, the respondent’s counsel concluded that the lower court having found that a fundamental condition precedent for the exercise of jurisdiction by the Tribunal namely an application duly filed by the respondent, was missing and its existence could not be presumed, the lower court was right in granting the certiorari order.
The question whether or not an order of certiorari will issue does not only depend on whether the errors complained of are errors of law or fact but that such errors must disclose excess of jurisdiction or errors in law on the face of the record of the inferior court or tribunal which is the subject of the application. Therefore when a court is considering whether or not an order of certiorari would issue against the findings of an inferior court or tribunal, such court must be guided by the principle that it is not acting in appellate capacity but in supervisory capacity. This supervisory jurisdiction extends not only to seeing that the inferior courts or tribunals keep within their jurisdiction but also to seeing that they observe the law. In this regard therefore the court exercising supervisory jurisdiction must not substitute its own views for those of the inferior courts or tribunals. See State v. Boundary Settlement Commissioner (1985) 3 NWLR (Pt.12) 335; In Re Kubeinje (1974) 11 SC 79 and Ugoh v. Benue State Local Government Service Commission & Ors. (1995) 3 NWLR (Pt.383) 288 at 319. In the present case, what was in issue was whether the Rent Tribunal has jurisdiction to try and convict persons for the offences created under section 20 of the Rent Control and Recovery of Premise Law Cap. 132 of the Laws of Kaduna State as amended by Edict No.4 of 1996 and whether the respondent was given a fair hearing before his conviction and sentence.
The issue of jurisdiction is fundamental to the question of the competence of the court adjudicating. See Kalio v. Kalio (1975) 2 SC 15. Hence, it is crucial for any court adjudicating first to determine the issue. See Barclays Bank v. Central Bank (1976) 6 SC 175. The leading case of Madukolu v. Nkemdilim (1962) 1 All NLR (Pt.4) 587; (1962) 2 SCNLR 341. The principle therein stated have been restated in subsequent decisions of the Supreme Court in Ogunsanya v. Dada (1990) 6 NWLR (Pt.156) 347 Attorney-General v. Sode (1990) 1 NWLR (Pt.128) 500 and Odofin v. Agu (1992) 3 NWLR (pt.229) 350. One of the essential elements for the exercise by the court of its jurisdiction is that the subject-matter of the case which is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction. Another element is that the case that comes before the court is initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. In the present case, although by section 8 of the Rent Control and Recovery of Premises Law Cap. 132 of the Laws of Kaduna State 1991, as amended, the jurisdiction of the Rent Tribunal is to be invoked by an application by a party seeking relief, the record of the trial Rent tribunal which was the subject of certiorari application does not show that any application was filed to invoke the jurisdiction of the Tribunal. Without such application, it is not possible to determine the nature of the claim before the Tribunal and the date it was filed. Although the appellant claims in his brief of argument that the action at the Tribunal was initiated by a writ of summons, no page of the record was stated where the said writ of summons could be found. The document contained at page 1 of the record referred to at the index to the record as “Writ of Summons” is not a writ of summons but a hearing notice or hearing summons which does not contain any specific claim whatsoever. Therefore as the action at the Rent Tribunal was not initiated by due process of the law and upon the fulfillment of the condition precedent to the exercise of jurisdiction namely, filing an application, the Tribunal lacked jurisdiction in granting the appellant’s claim and consequently the lower court was right in exercising its jurisdiction in granting the certiorari order quashing the entire proceedings and judgment.
The other aspect of this issue is the fact that there is nothing in the Rent Control and Recovery of Premises Law Cap. 132 of the Laws of Kaduna State 1991 and the Rent Control and Recovery of Premises (Amendment) Edict No.4 of 1996 which shows that any criminal jurisdiction to try offences created under section 20 of the law and which gave right of appeal against any conviction under section 21 of the law, had been conferred on the Rent Tribunal. As the Rent Tribunal therefore has no jurisdiction to try and convict the respondent for any offence under the law, the conviction and sentence passed on the respondent by the tribunal are a nullity thereby giving the lower court the power to quash the conviction and sentence in the order granting the respondent’s reliefs in his application for a certiorari order.
Another glaring gross error in law disclosed on the face of the record of the Rent Tribunal which supported the respondent’s application for certiorari order at the court below, is the fact that the conviction and sentence passed on the respondent by the Tribunal was not preceded by any criminal trial for the offence by which the respondent could have been charged and given adequate opportunity as required by section 33(6) of the 1979 Constitution, to defend himself. Thus having been denied this fundamental right of fair hearing by the Rent Tribunal, the respondent was indeed entitled to apply as he did to the High Court for certiorari order to quash the conviction and sentence which was rightly granted by the lower court.
The last issue for determination is whether the lower court was right in awarding N50,000.00 to the respondent as damages. Relying on the case of Eseigbe v. Agholor & Anor (1993) 12 SCNJ 82 at 92, (1993) 9 NWLR (Pt. 316) 128 learned counsel to the appellant pointed out that there was no evidence whatsoever before the lower court that the appellant was responsible for the publication of the respondent’s conviction in the New Nigerian Newspaper to justify any award of such damages against him. That the lower court merely relied on speculations in making the award which must be set aside particularly when the publication had clearly indicated its source to one Emmanuel Osisiogu who has nothing to do with the appellant.
Learned counsel for the respondent is however of the view that since the respondent was convicted on 27/8/96 and the publication in respect of the same appeared in the paper on 14/9/96 the publication was made to spite the respondent and that this could not have been done by any person interested in the conviction of the respondent other than the appellant. For this reason, learned counsel to the respondent concluded that the lower court was right in awarding the damages to the respondent.
In the respondent’s application for certiorari order at the lower court, one of the reliefs sought by the respondent is one for general damages which reads:-
“3. General damages of N250,000 (two hundred and fifty thousand Naira) for the harassment, trauma and ridicule suffered by the applicant as a result of the wrongful conviction and sentence on the applicant by the 2nd respondent.”
What is quite plain from the above relief is that it does not indict the appellant who was the 1st respondent in the application before the lower court, of being responsible for the harassment, trauma and ridicule suffered by the respondent as the result of his conviction by the Rent Tribunal. Nor did the respondent lead evidence in the affidavit in support of his application that the appellant was responsible for his suffering as the result of the conviction or that the appellant was connected in any way with the publication of the conviction in the New Nigerian Newspaper edition of 14/9/96 which appeared to be the ground for the respondent’s claim for damages. Since the respondent himself in the relief claimed in this respect and in his evidence contained in his affidavit in support of his application at the court below did not direct the claim at the appellant or stated in any way that the appellant was liable to him in damages being claimed, the finding of the learned trial Judge at page 98 of the record of this appeal that:-
“The only reasonable inference is that the 1st respondent caused the publication in order to hurt the applicant who was refusing to leave the premises which he so desperately wanted to move into.” is glaringly most unreasonable. There is therefore no basis at all for the award of damages against the appellant as the claim was not directed at him and there is no evidence whatsoever to support the claim against him. This issue is thus resolved in favour of the appellant.
In the result, this appeal succeeds in part. The appeal against the award of N50,000.00 damages against the appellant having succeeded is hereby allowed.
The order of the lower court in respect of the award of N50,000.00 damages to the respondent is therefore set aside and the claim of the respondent as applicant for this relief is dismissed. However, the appeal against the order of certiorari quashing the proceedings, judgment, conviction, sentence and other orders made by the Kaduna Rent Tribunal having failed is hereby dismissed.
I am not making any order as to costs having regard to the outcome of this appeal.
Other Citations: (2000)LCN/0789(CA)
