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OFONGEKPE v. GOV OF AKWA IBOM STATE &ORS
CITATION: (2016) LPELR-41224(CA)
In the Court of AppealIn the Calabar Judicial Division
Holden at Calabar
ON WEDNESDAY, 22ND JUNE, 2016Suit No: CA/C/59/2014
Before Their Lordships:
IBRAHIM MOHAMMED MUSA SAULAWA Justice, Court of AppealCHIOMA EGONDU NWOSU-IHEME Justice, Court of AppealONYEKACHI AJA OTISI Justice, Court of Appeal
BetweenCHIEF ETIM OFONGEKPE - Appellant(s)
And1. THE GOVERNOR OF AKWA IBOM STATE2. ATTORNEY - GENERAL OF AKWA IBOM STATE3. AKWA IBOM STATE COMMISSIONER FOR LOCALGOVERNMENT AND CHIEFTANCY AFFAIRS4. STATE COUNCIL OF CHIEFS, AKWA IBOM STATE
- Respondent(s)
RATIO DECIDENDI
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1. ADMINISTRATIVE LAW - JUDICIAL REVIEW: Whetheran application for judicial review can be made withoutleave of Court"It is trite, that the judicial review is a special procedure,whereby Court exercises supervisory jurisdiction overacts or omissions of Tribunals and public bodies inpublic law. See Order 40 Rule 5 (5) of the Akwa IbomState High Court (Civil Procedure) Rules, 2009;NWAOGWUGWU v. PRESIDENT FRN (2007) 6 NWLR (pt1030) 237 @ 244.By virtue of Order 4 Rule 3 of the Akwa Ibom State HighCourt (Civil Procedure) Rules, 2009, no application forjudicial review shall be filed unless the leave of theCourt is sought and duly obtained in accordance withthe Rules of Court. It is equally the law, that where leaveis duly granted by the Court, the application for judicialreview shall be made by motion (on notice) or byoriginating summons, which shall be served upon allpersons directly affected before the hearing date. SeeOrder 4 Rules 1, 3 & 5 (5) (supra)."Per SAULAWA, J.C.A.(Pp. 11-12, Paras. E-C) - read in context
2. JUSTICE - MISCARRIAGE OF JUSTICE: What does thecourt consider to conclude that a miscarriage of justicehas occurred"Invariably, the term miscarriage denotes a failure ofjustice. Miscarriage of justice occurs when the Courtfails, neglects or refuses to follow due process of therules thereof, and thereby arrives at a decision which isprejucial to the right of the party. See OGUNTAYO vs.ADELAJA (2009) 39 NSCQR 640 @ 644 - 645;ONAGORUWA vs. THE STATE (1993) 7 NWLR (PT. 303)49."Per SAULAWA, J.C.A. (P. 20, Paras. C-D) - read incontext
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3. PRACTICE AND PROCEDURE - APPLICATION FORAN ORDER OF CERTIORARI: Effect of failure to attacha copy of the proceeding sought to be quashed in anapplication for an order of certiorari"It is, evident, that throughout the records of appeal andby the Appellants own admission, the Appellant had notexhibited the proceedings of the Chieftaincy DisputesCommittee of the state council of Chiefs.Undoubtedly, the 1st Respondent's order in question ispredicated upon the proceedings vis-a-vis therecommendations of the Chieftaincy DisputesCommittee which had not been made available to theCourt below.Yet, the rule is well settled, that failure to attach aproceeding sought to be quashed, vide certiorariprocedure, renders the application incompetent, andliable to be struck out. See MANUWA vs. NYC (2013) 2NWLR (pt. 1331) 1 @ 12.The Appellant's submission denying' the existence ofthe Chieftaincy Disputes Committee, or ever appearingbefore same, does not in any way enure or exoneratehim. He ought to have applied for a certified true copyof the said proceedings, in accordance with theprovisions of Section 104 of the Evidence Act, 2011.Faced with a similar scenario, this Court once held inMANUWA v. NJC (2013) 2 NWLR (pt. 1337) 1 @ 39 line Dthus:"Finally, it is my view that the Appellant was not sureabout the existence of any proceedings to be quashedby means of certiorari, it was not appropriate to haveapproached the Court for judicial review. The failure toattach any such proceedings complicated the matter.(This) was a serious feature in the suit which robbed thelower Court of its jurisdiction."Per SAULAWA, J.C.A. (Pp.18-19, Paras. D-D) - read in context
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IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
(Delivering the Leading Judgment): The present appeal
is against the ruling of the High Court of Akwa Ibom State,
delivered on October 22, 2013 in Suit No. HU/S/34/2012.
By ruling in question, the Court below, Coram Ekaele Obot
J. refused the appellant's application, seeking a prerogative
order of certiorari, for want of sufficient particulars.
BACKGROUNG FACTS
In the Year 2006, the Appellant was selected by the
Kingmakers of Utu Nsehe Village, in Etim EKPO LGA of
Akwa Ibom State, to be the head of the said Village. On
May 11, 2007, consequent upon his selection by the
Kingmakers, the Appellant was conferred by the 1st
Respondent with a certificate of recognition, as the Village
Head of Utu Nsehe Village
Whereupon, the Appellant proceeded to perform his
assignment as the Village Head of the said Utu Nsehe
village for five years. However, on September 7, 2012, the
Appellant received a letter from the 1st Respondent
purportedly withdrawing the earlier cognition accorded
thereto as the Village Head. Thus, having been dissatisfied
with the withdrawal of Certificate of
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recognition thereof, the Appellant filed an application in
the Court below, seeking the following reliefs:
1. AN ORDER GRANTING LEAVE to the applicant to
apply for order of judicial review of certiorari
bringing the decision and order of the Government of
Akwa Ibom State contained in the order dated 12th
day of August, 2012 withdrawing appellant
recognition as village Head of Utu Nhese Etim EKPO
Local Government of Akwa Ibom State hereto
attached in to this Court for the purpose of being
quashed.
2. AND ANY OTHER ORDER (S) as this Honourable
Court may deem fit to make in, the circumstance.
The application is predicated upon six grounds and 11
paragraphs affidavit, personally deposed to by the
Appellant himself. Attached to the affidavit, are various
Exhibits - A - G2, respectively.
On May 22, 2013, when the said application came up for
hearing, the learned counsel adopted the submissions
contained in the respective written addresses thereof, thus
resulting in adjourning the application to July 10, 2013 for
ruling. Eventually, the vexed ruling was delivered by the
Court below on October 22, 2013, to the following
conclusive effect:
"In
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conclusion, I agree forth the learned counsel for the
1st, 3rd Respondent that the prerogative order of the
writ of certiorari does not avail the applicant in the
instant application.
In this light I do not have any difficulty in requesting
this application - This application is therefore refused
for want of sufficient particulars.”
See pages 95 - 101, of the record.
The notice of appeal, filed on November 20, 2013, is
contained at pages 102 - 105 of the record, duly
transmitted on February 17, 2014. The Appellant's brief of
Argument was filed on February 26, 2014. That of the
Respondent was filed on February 8, 2015, but deemed
properly filed and served on January 15, 2016, respectively.
The Appellant's brief spans a total of 9 pages. At page 2
thereof , four issues have been formulated for
determination, viz:
"Issue one:
Whether the decision contained in the Ruling of
Honourable Just ice Ekaet te Obot in su i t No.
HU/MISC/342/2012 was erroneous or contrary to law.
Issue Two:
Whether the Ruling was a miscarriage of justice.
Issue Three:
Whether the Ruling was against the weight of evidence.
Issue
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Four:
Whether the learned trial Judge erred in law when he failed
to acknowledge the denial of fair hearing to the appellant
who was not heard before the withdrawal of the certificate
of recognition."
The first issue was canvassed at pages 2 - 6 of the brief, to
the effect that the decision contained in the vexed ruling
was erroneous or contrary to the law. The reasons being
that (i) paragraph 4 (ix) of the facts relied upon (page 24 of
the Record), and paragraph 9 of the verifying affidavit
(page 29 of the record) are to the effect that the Appellant
was not invited by any of the Respondents to answer
questions concerning any case instituted against him in
respect of the office as village Head; (ii) he was not also
invited to appear before the chieftaincy inspite community
to answer any charge against him. See paragraphs 5, 6,
and 7 of the Respondent 1st – 3rd Respondents collected
affidavit. That it is the duty of the Respondents to produce
the proceedings of the committee before the Court. See
Section 115 (3) of the Evidence Act, 2011; (iii) That the 4th
Respondent did not file any collected affidavit to the
appellant's application. Thus,
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knowing that no committee was set up by the 4th
Respondent; (iv) That by virtue of the provisions of Order
31 of the Traditional Rules Law Akwa Ibom State, the 1st
Respondent is the only person that is vested with power to
withdraw recognition's that went accorded Traditional
Rules in Akwa Ibom State; (v) That the order the 1st
Respondent made was not administrative but quasi -
Judicial See JUDICIAL COMMISSION AT C R C V. DR -
(nors) ASARI YOUNGS (2003) 220 LRCN per Odili JSC (a)
17 paragraphs P - Z; (vi) That the order of certiorari could
still issue against the letter of the 1st Respondent. See JSC
CRS VS. YOUNG (supra) per Rhodes Vivour, JSC (a) 36
UEE STATE v. I LAWAL v. SENIOR MAGISTRATE II (2013)
LRCN 1 page 280 at 233 Ojjo; (vii) That is not all cases that
an affidavit for a can order of certiorari is expected to
attach proceedings of the body that acted against his
interest or right. See JSC CRS VS. YOUNG (supra).
The issue No. 2 is argued at pages 6 of the said brief to the
conclusive effect that the ruling was a miscarriage of
justice for having approved the illegality contained in the
order made by the 1st Respondent revoking the recognition
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accorded the Appellant. The Court is urged to resolve the
issue 2 in favour of the appellant.
The issue No 3 is canvassed at pages 6 - 7 of the brief, to
the effect that if the weight of the evidence, had been
considered, the ruling would have been delivered in favour
of the Appellant. The Court is urged to resolve the said
issue in favor of the Appellant.
The issue four is argued at pages 7 of the brief, to the
effect that it was quite obvious that the Appellant was not
heard before his right was affected by the 1st Respondents
order of revocation of recognition in question. See JSC CRS
vs. YOUNG (supra) per Fabiyi, JSC at 34 FZ.
The Court is urged to resolve the issue No 4 in favour of the
Appellant.
Conclusively, the Court is urged upon to hold that the
vexed ruling of the Court below was wholly wrong and
against the weight of evidence. The Court is equally urged
to rely on Section 15 of the Court of Appeal Act and step
into the shoes of the Court below and determine the
unresolved issues based solely on the evidence, and grant
the reliefs sought by the 1st Appellant.
On the other hand, the 1st - 3rd Respondents' brief spans
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on a total of 17 pages. Pages 4 - 5 of the brief, four issues
have been formulated, viz.
1. Whether the decision contained in the ruling of the lower
Court was erroneous and contrary to the law,
2. Whether the ruling was a miscarriage of justice,
3. Whether the ruling was against the weight of evidence.
At pages 5 to 10 of the said brief thereof, the Respondentshave raised a preliminary objection urging on the Court todismiss the appeal. The gist of the objection is that theAppellant failed to file an affidavit of service at the Courtbelow, as required by Order 40 Rule 5 (5) of the Akwa IbomState High Court (Civil Procedure) Rules, 2009.
It was submitted, that after obtaining the leave of Court tofile this suit at the trial Court, the Appellant failed to file anaffidavit of service before the application was entered forhearing, in compliance with Order 40 Rule 5 (5) of theRules (supra). Further submitted, that the provisions of thesaid Order 40 Rule 5 (5) are sacrosanct, and must beobeyed. See ONYE MAIZE V. OJIAKO (2010) 4 NWLR (PT.1185) 504 at 507; NWAOGWUGWU vs. PRESIDENT FRN(2007) 6 NWLR (pt. 1030) 237 at 244, et
7(2
016)
LPELR
-4122
4(CA)
al.
It was contended, that the Appellant's failure to fulfill the
conditions to the exercise of the Court's jurisdiction ab
initio, robs this Court of the vires to adjudicate. See NGERE
v. OKURUKET XIV (2014) 58 (pt. 1) NSC QR 113. AG
LAGOS STATE VS. AG FEDERATION (2014) 58 (NO. 2)
SCQR 270.
The Court is urged to consider the merit of this application.
The issue No 1 is canvassed at pages 10 - 12 of the brief, to
the effect that the decision (ruling) of the Court below was
not erroneous, or contrary to law. It was submitted, that
throughout the entire records of the appeal, the Appellant
had not exhibited the proceedings he wanted the Court to
quash or nullify thus, the Appellant's failure to exhibit the
proceedings sought to be quashed, renders the suit
incompetent. See MANUWA vs. NYC (2013) 2 NWLR (pt.
1337) 1 at 12 - JSC CRS vs. YOUNG (2013) NWLR (pt.
1364) 1 at 25 paragraphs F - G per Odili, JSC.
The Court is urged to so hold.
The issues Nos. 2 & 3 have been canvassed together at
pages 12 - 15 of the brief, to the effect that the ruling of the
Court below was neither a miscarriage of justice nor
against the weight of evidence.
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The Court is urged to hold, that the Appellant’s failure to
attach the proceedings is fundamental and very risky to his
case.
The issue No 4 is canvassed at pages 15 - 16 of the brief, to
the effect that there was no denial of fair hearing upon
which the Court below failed to acknowledge that the
Appellant's failure to furnish the Court with the basic
requirements for the application to succeed has amounted
to an incurable defect.
On the whole, the Court is urged to dismiss the appeal.
DETERMINATION OF THE 1ST - 3RD RESPONDENTS'
PRELIMINARY OBJECTION
On March 31, 2014, the 1st - 3rd Respondents filed a notice
of preliminary objection' pursuant to Order 10 Rule 1 of the
Court of Appeal Rules 2011. The said objection is
predicated upon three grounds, viz:
1. The Appellant/Respondent failed to file an Affidavit of
service at the trial Court as is required of him by Order 40
Rule 5 (5) of the Akwa Ibom State High Court (Civil
procedure) Rules, 2009.
2. The substantive motion on notice for an order of
certiorari to quash the order of the 1st Respondent given
on 12th August, 2012 not having been initiated by due
process of
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law that is, not fulfilling all the conditions precedent was
incompetent ab initio.
3. The failure by the Appellant/Respondent to comply with
the said order goes to the competency of this appeal and so
deprives this Court of the necessary vines to entertain the
matter.”
The argument regarding the objection is incorporated at
pages 5 – 10 of the 1st - 3rd Respondents' brief. In the main
it was submitted, that [although] the issue of non service of
the affidavit of service has been raised for the first time, it
touches on the jurisdiction of the Court. Thus, jurisdiction
is a question of law and a necessary ingredient in all
proceedings. See NGERE V. OKURUKET XIV (2014) 58 (pt.
1) NSCQR 113; AG LAGOS STATE VS. AG FEDERATION
(2014) 58 NO. 2 NSCQR 270; OSIGBEMEH vs. EGBAGBE
(2014) ALL FWLR (pt.744) 58 @ 62.
The Court is urged to consider the merits of the objection,
as it’s apparent that it's predicated on reason of law of
jurisdiction.
In response to the 1st - 3rd Respondents' preliminary
objection in question, the Appellants filed a reply brief on
21/10/15, pages 1 - 5 of the reply brief, specifically relate to
the
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Respondents, objection.
In a nutshell, the Appellants submit that the decision in
ONYMAIZU vs. OJIAKO (2010) 4 NWLR (pt. 1185) 504 @
507, cannot bind this Court. The reason being that Order
37 Rule 5 (4) interpreted in ONYEMAIZU vs. OJIAKO
(supra) is different from the provision in Order 40 Rule 5
(5) of the High Court (Civil Procedure) Rules, 2009.
Further submitted, that the appearance of the Respondents
in Court was a sufficient proof of service of the processes
thereon. See MADAHUNSI VS. KWARA INVESTMENT AND
PROPERTY DEVELOPMENT COY LTD (2013) ALL FWLR
(Pt. 659) 1198; CARNAUD METAL BOX (NIG) PLC VS.
AGWELE (2011) AFWLR (pt. 557) 750.
It was contended, that the objection borders on procedural
law is an irregularity. Thus, failure to comply with Order 5
(supra) cannot vitiate the proceedings. See ANSA vs. NTUK
(2009) 9 NWLR (pt. 1147) 557.
It is trite, that the judicial review is a special procedure,
whereby Court exercises supervisory jurisdiction over acts
or omissions of Tribunals and public bodies in public law.
See Order 40 Rule 5 (5) of the Akwa Ibom State High Court
(Civil Procedure) Rules, 2009; NWAOGWUGWU v.
PRESIDENT FRN
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(2007) 6 NWLR (pt 1030) 237 @ 244.
By virtue of Order 4 Rule 3 of the Akwa Ibom State High
Court (Civil Procedure) Rules, 2009, no application for
judicial review shall be filed unless the leave of the Court is
sought and duly obtained in accordance with the Rules of
Court. It is equally the law, that where leave is duly
granted by the Court, the application for judicial review
shall be made by motion (on notice) or by originating
summons, which shall be served upon all persons directly
affected before the hearing date. See Order 4 Rules 1, 3 &
5 (5) (supra).
In the instant case, it's obvious from the Record, especially
at pages 45, 46, 47 and 48, that the Appellant had filed the
Affidavit of service regarding the motion on notice. Thus,
ground 1 of the objection is lacking in merits, and it's
hereby overruled.
Thus, having overruled the 1st - 3rd Respondents
preliminary objection proceeds to determine the appeal on
the merits anon.
Having amply considered the nature and circumstances
surrounding the appeal vis-a-vis the records of appeal, I am
inclined to adopt the four issues raised and canvassed by
the Appellant in the brief
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thereof for the determination of the appeal, anon.
ISSUE NO. 1:
The first issue raises the question of whether or not the
decision of the Court below was erroneous or contrary to
law. The issue is distilled from ground 1 of the notice of
appeal, which is predicated upon two particulars, viz:
PARTICULARS OF ERROR
a) The learned trial Judges misconception of the
applicable law on point and failure to align her ruling
with the decision in Adesina V. Ojo (supra) to the
effect that the wrongful order of the Governor (the
1st Respondent) act ing on the purported
recommendation of the Chieftaincy Disputes
committee would appropriately be brought by
CERTORARI (sic) removing it to the High Court to be
quashed resulted in amounted to a miscarriage of
Justice against the Applicant/Appellant.
b) The learned trial Judge misconstrued the
appropriate law when she opined that a declaratory
relief commenced by writ was the Applicable law
where as a removal of the order/decision to the High
Court to be quashed by certiorari is the current locus
classicus on the issue as reflected in Adesina V. Ojo
(supra)."
In the instant case, it is obvious that the
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Appellant, by Exhibit E, was duly recognised as the village
Head of Utu Nsekhe, Utu Clan, Etim Ekpo, on 11/05/07.
The said Exhibit E is to the following effect:
“AKWA IBOM STATE OF NIGERIA TRADITIONAL RULERS
EDICT 1990 (SECTION 176)
Certificate of recognition
THIS IS TO CERTIFY that pursuant to the provision of the
Traditional Rulers Edit 1990, the Governor of Akwa Ibom
State of Nigeria hereby accords official recognition to
Chief Etim Ofingekpe Udo
Village Head
Utu Nsekhe, Utu clan, Etim Ekpo
Local Government GIVEN at Uyo under my hand the 1th
Day of May 2007."
See page 19 of the Record.
However, by virtue of Exhibit F, the said recognition
accorded the Appellant was withdrawn on 12/08/12 by the
Governor of Akwa Ibom State.
The said Exhibit F is copiously reproduced to the following
effect:
"TRADITIONAL RULES LAW CAP. 134
LAWS OF AKWA IBOM STATE TRADITIONAL RULER
(WITHDRAWAL OF RECOGNITION FROM CHIEF ETIM
OFFONG EKPE)
In exercise of the powers conferred on me by Section 31 of
the Traditional Rulers Law Cap, 134 Laws of the Akwa
Ibom State and the Recommendation of the Chieftaincy
Disputes Committee of the
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State Council of Chiefs declaring in the main that Chief
Etim Offong Ekpe was not validly selected as the Village
Head of Uti Nsekhe and of all other powers enabling me in
that behalf, I, CHIEF (DR.) GODSWILL OBOT AKPABIO
(CON), the Governor of Akwa Ibom State, hereby make the
following:
ORDER:
1. The recognition granted to Chief Etim Offong Ekpe as
the Village Head of Utu Nsekhe, Utu Clan, Etim Ekpo Local
Government Area is hereby withdrawn.
2. This ORDER may be cited as the Traditional Rulers
(withdrawal of Recognition from Chief Etim Offong Ekpe)
order and shall come into force on this... Day... 2012,
MADE under my hand at Uyo, this.... Day of... 2012 CHIEF
(DR.) GODSWILL OBOT AKPABIO THE GOVERNOR OF
AKWA IBOM STATE”
See page 20 of the Record.
It is equally obvious from Exhibit F, that the exercising of
the 1st Respondent's power to withdraw the recognition
given to the Appellant as the village Head of Utu Nsekhe
was pursuant to:
"Section 31 of the Traditional Rulers Law Cap, 134 Laws of
Akwa Ibom State and the Recommendation of the
Chieftaincy Disputes Committee of the state council of
chiefs declaring the main that
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chief Etim Offiong Ekpe was not validly selected as the
village Head of Utu Nsekhe…"
Consequent upon the receipt of Exhibit F, the Appellant’s
counsel Barrister/Dr. E, J. Uko wrote a letter dated
17/09/12, to the Chieftaincy Disputes Committee, vide the
3rd and 4th Respondents, to the following effect:
"REQUEST FOR THE PROCEEDINGS THAT GAVE RISE TO
THE WITHDRAWAL OF THE CERTIFICATE OF
RECOGNITION OF CHIEF ETIM OFONGEKPE UDO AND
CHIEF JAMES AKPAN UDOFIA
We fervently believe that no proceedings took place, else
our clients would have been given due notice and properly
invited. If you however operated a kangaroo/undemocratic
hearing process where the rule of law matters not kindly
send to me by mail such proceedings.”
It is evident from the records, that the Appellant's counsel
wrote another letter to the Respondents, dated 07/10/12, to
the following effect:
"BARR./DR EMMANUEL J. UKO
(B.sc. 78; MPH-Yale' 80; LB -'90; BL. '91; LLM '96/LLD-‘06
South Africa) …
The Secretary - Chieftaincy Dispute committee C/o State
Council of Chiefs I
C/o Ministry of Local Governments and Chieftaincy Affairs
Uyo -
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Akwa Ibom State.
Sir,
REMINDER
On 17” September I mailed you on a letter requesting for
proceedings as indicated in the attached copy of the letter
mailed to you.
This reminder serves as an information that we are
desirous to be served with a copy of any such purported
proceedings…”
See page 82 of the Record.
In the course of the determination of the substantiveapplication, the Court below identified the main issue fordetermination, thus:"Whether a writ of certiorari can be issued to quash theorder of the 1st Respondent withdrawing the certificate ofrecognition of the applicant as village Head of Utu Nsekhevillage, in Etim Ekpo Local Government area.”See page 99 of the Record.
The decision of the Court below is to the conclusive effect,thus:"To grant the orders sought by the applicant would amountto chasing shadows and leaving the substance. Thefoundation of the order of the Governor must necessarily bedealt with before I can be armed sufficiently to deal withthe order of the 1st Respondent because the said order asearlier stated is predicated on the decision of
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the aforementioned committee.
Looking through the processes filed by the applicant, he
has neither asked for the decision of the committee to be
brought in to the Court for the purpose of reviewing its
legality nor-exhibited the Certified True copy of the said
decision to enable the Court review the said decision in
conjunction with the order of the 1st Respondent.”
In my considered view, the conclusive finding by the Court
below is cogent, and duly supported by the evidence on
record and the trite fundamental principles of law.
It is, evident, that throughout the records of appeal and by
the Appellants own admission, the Appellant had not
exhibited the proceedings of the Chieftaincy Disputes
Committee of the state council of Chiefs.
Undoubtedly, the 1st Respondent's order in question is
predicated upon the proceedings vis-a-vis the
recommendations of the Chieftaincy Disputes Committee
which had not been made available to the Court below.
Yet, the rule is well settled, that failure to attach a
proceeding sought to be quashed, vide certiorari
procedure, renders the application incompetent, and liable
to be struck out. See
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MANUWA vs. NYC (2013) 2 NWLR (pt. 1331) 1 @ 12.
The Appellant's submission denying' the existence of the
Chieftaincy Disputes Committee, or ever appearing before
same, does not in any way enure or exonerate him. He
ought to have applied for a certified true copy of the said
proceedings, in accordance with the provisions of Section
104 of the Evidence Act, 2011.
Faced with a similar scenario, this Court once held in
MANUWA v. NJC (2013) 2 NWLR (pt. 1337) 1 @ 39 line D
thus:
"Finally, it is my view that the Appellant was not sure about
the existence of any proceedings to be quashed by means of
certiorari, it was not appropriate to have approached the
Court for judicial review. The failure to attach any such
proceedings complicated the matter. (This) was a serious
feature in the suit which robbed the lower Court of its
jurisdiction."
Not surprisingly, the Court below made an aptly similar
observation to the effect, that the Appellant has options
provided under the Rules of Court thereof, which he could
have employed to challenge the order of the 1st
Respondent directly:
“In view of his averment in his affidavit (that) he had no
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access to the said decision of the committee of the 4th
Respondent.”
See page 101 of the Records of appeal.
In the circumstance, the issue No. 1 ought to be, and it's
hereby resolved against the Appellant.
ISSUE NO. 2
The second issue raises the question of whether or not the
vexed ruling was a miscarriage of justice. It is distilled from
ground 4 of the Notice of appeal.
Invariably, the term miscarriage denotes a failure of
justice. Miscarriage of justice occurs when the Court fails,
neglects or refuses to follow due process of the rules
thereof, and thereby arrives at a decision which is prejucial
to the right of the party. See OGUNTAYO vs. ADELAJA
(2009) 39 NSCQR 640 @ 644 - 645; ONAGORUWA vs. THE
STATE (1993) 7 NWLR (PT. 303) 49.
In the instant case, the requirement of the law under Order
4 Rule 9 (2) of the High Court (Civil Procedure) Rules,
2009, is that:
"(2) Where the reliefs sought is (sic) or includes an order of
certiorari to remove any proceedings for the purpose of
quashing them, the Applicant may not question the validity
of any order, warrant, commitment, conviction, inquisition
or records unless before
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the hearing of the motion or summons he has filed a copy
thereof verified by affidavit or accounts for his failure to do
so to the satisfaction of the judge hearing the motion or
summons.”
The Appellant has woefully failed to comply with the
mandatory provisions of the above Order 40 Rule 9 (2) of
the High Court Rules (supra). I am, therefore, of the far-
reachingly considered view, that the Court below was
absolutely right, when it came to the most inevitable
conclusion in the vexed ruling that:
Looking through the processes filed by the Applicant, he
has neither asked for the decision of the said committee to
be brought in to the Court for the purpose of reviewing its
legality nor exhibited the certified true copy of the said
decision to enable the Court review the said decision in
conjunction with the order of the 1st Respondent.
In the circumstances, the second issue is equally hereby
resolved against the Appellant.
ISSUE No. 3
The third issue raises the very vexed question of whether or
not the Ruling of the Court below was against the weight of
evidence. It is distilled from ground 5 of the notice of
appeal.
There
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is no gainsaying the fact, that having resolved the issue No.
2 against the Appellant, the issue No. 3 must equally be
resolved against him.
It is obvious from the record, that having failed to attach
the proceedings of the Chieftaincy Disputes Committee, the
Appellant's application is inevitably rendered grossly
incompetent. What's more, the Appellant was not even so
sure about the existence of the committee's proceedings,
upon which the vexed order of the 1st Respondent was
predicated. Thus, the certiorari procedure he has
unwittingly embarked upon was most inappropriate. As
aptly held by the Court below:
The Applicant has other options provided under the Rules
of this Court which he can employ to challenge the order of
the 1st Respondent directly in view of his averment in his
Affidavit (that) he had no access to the said decision of the
committee of the 4th Respondent.
In the circumstances, the third issue is equally hereby
resolved against the Appellant.
ISSUE NO. 4
The fourth issue raises the question of whether or not the
Court below erred in law, when it failed to acknowledge the
denial of fair hearing to the Appellant who
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was not heard before the withdrawal of the certificate of
recognition thereof. The issue is distilled from ground 7 of
the notice of appeal. In paragraph ix of the statement
thereof, contained at pages 25 – 27 of the Record, the
Appellant averred that -
ix. The Applicant has never been invited by the
Chieftaincy Disputes Committee of the state council
of chiefs or any similar body on the validity of his
selection as the village head of Utu Nsekhe and is not
aware of any dispute or offence having served for five
years as village head.
See page 27 of the record.
Contrariwise, the 3rd Respondent averred in paragraphs 7
and 9 of the counter affidavit thereof, that the Applicant's
averment to the effect that he had never been invited to
appear before the said chieftaincy Disputes Committee,
was false.
Thus, the Court below was absolutely right in its finding, to
the effect that the Appellant wrongly approached it for the
order of certiorari, and accordingly struck out the action
for want of sufficient particulars.
In the circumstance, the fourth issue is equally hereby
resolved against the Appellant.
Hence, having effectively
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resolved all the four issues against the Appellant, the
appeal is in every respect deemed lacking in merits.
Consequently, the appeal is hereby dismissed by me, for
lacking in merits. The ruling of the Akwa Ibom State High
Court, delivered by the Hon. Justice Ekaette Obot on
October 22, 2013, is hereby affirmed.
Parties shall bear their respective costs of litigation.
CHIOMA NWOSU-IHEME, J.C.A.:I agree.
ONYEKACHI AJA OTISI, J.C.A.: I had the privilege ofreading in advance a draft copy of the Judgment justdelivered by my learned Brother, I.M.M. Saulawa, JCA,dismissing this appeal. The issues raised in this appealhave, in his characteristic manner, been systematicallyaddressed by my learned Brother. I am in agreement withhis reasoning and conclusion, which I adopt as mine.
I also dismiss this appeal and I abide by the Orders made inthe lead Judgment.
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