➥ CASE SUMMARY OF:
Umeano v. Anaekwe (SC.323/2008, Friday, January 28, 2022)
by Branham Chima.
➥ ISSUES RAISED
Certiorari brought after 6 months;
Discretion of trial judge.
➥ CASE FACT/HISTORY
The appellants were plaintiffs at the trial Customary Court (CC) Akwuzu, Anambra State in Suit No. CCA/2/92: Alexander Umeano & Ors Vs Albert Anaekwe & Anor wherein they sought the following reliefs: (a) Defendant to remove the Iyi-Oji Juju, which was planted by the defendants’ great-great-grandfathers on Obinuno Land of the Plaintiffs. (b) Defendants to release the ownership of Obinuno Land of the Plaintiffs. (c) An order of Court restraining the Defendants, their servants, privies and agents from further trespass into the said land of Obinuno situate at Ifite Village, Akwuzu. Before the trial commenced, the respondents raised an objection to the participation of the president of the Court in the proceedings on grounds of bias. The objection was overruled and the Court proceeded to hear and determine the case. Judgment was entered in the appellants’ favour in terms of reliefs (b) and (c). Relief (a) was refused.
Being seriously aggrieved by the decision of the Customary Court, the appellants applied to the High Court of Anambra State, sitting at Otuocha for an order of certiorari to remove into the Court for the purpose of being quashed, the judgment, orders and all subsequent post judgment proceedings in respect of Suit No. CCA/2/92, on the ground of bias and/or real likelihood of bias. The High Court found that the allegation of bias or likelihood of bias as regards the judgment of the Customary Court delivered on 17/3/92 was unfounded and therefore declined the invitation to tamper with it. However, the Court held that the contempt proceedings and the ruling delivered therein on 6/5/92 were null and void and of no effect. The said proceedings and ruling were accordingly quashed. The present respondents were dissatisfied with the order of certiorari granted by the High Court and appealed to the lower Court. On 21/7/97, the Court allowed the appeal and set aside the judgment of the High Court on the grounds, inter alia, of breach of the rules of fair hearing in that the respondents were not heard before the judgment was entered.
The appellants therefore, applied to the Court to make a consequential order, to wit, that the application for an order of certiorari be re-heard by the High Court. The appellants were granted leave to bring a fresh application for certiorari. The respondents raised a preliminary objection challenging the fresh certiorari proceedings on the ground that the proceedings were incompetent, having been filed out of time, contrary to the provisions of Order 37 Rule 4 (2) of the 1988 High Court Rules of Anambra State. The preliminary objection was dismissed. The application for an order of certiorari was granted in part, to the effect that the Customary Court exceeded its jurisdiction when it purported to vary or review its earlier final judgment. The respondents were again dissatisfied with the decision of the High Court and appealed against it to the Court below. Both parties formulated three issues for determination. The first issue on either side was whether the High Court had jurisdiction to entertain an application for an order of certiorari after the six-month limitation period provided for in Order 37 Rule 4 (2) of the High Court Rules Cap. 66 Laws of Anambra State, 1988, had lapsed. The Court, in a considered judgment, delivered on 22/4/2008, resolved the appeal in the respondents’ favour on issue 1. The Court held that Order 37 Rule 4 (2) provides for a limitation period of six months within which to apply for an order of certiorari and that the appellants’ fresh application having been filed outside the six-month period was incompetent and could not confer jurisdiction on the High Court. The appeal was allowed. The ruling of the High Court in Suit No. OT/MISC/4/97 delivered on 23/6/2004 was set aside. The appellants are aggrieved by this decision and have appealed to this Court in a bid to finally lay this matter to rest.
➥ ISSUE(S) & RESOLUTION(S)
[APPEAL ALLOWED]
I. Whether the Court of Appeal was right when it held that in view of the provisions of Order 37 Rule 4 (2) of the High Court Rules 1988 of Anambra State, the High Court lacked the jurisdictional competence to have granted the application for leave for certiorari which was filed after six months from the date of the proceedings of the Customary Court, Akwuzu?
RESOLUTION: IN APPELLANT’S FAVOUR.
[THE USE OF ‘MAY’ MAKES THE HIGH COURT HAVE DISCRETION WHETHER TO GRANT THE CERTIORARI OR NOT
‘Having carefully examined the provisions of Rule 4 (1) above, I am of the considered view that the use of the word “may” therein gives the Court the discretion to grant or refuse an application for leave to apply for judicial review or to grant any relief sought on the application. The basis for my reasoning is that Rule 4 (1) (b) provides that where the application is made after the expiration of the stipulated period, the Court, in deciding whether or not to grant leave or any relief sought, must consider whether granting the relief would be likely to cause substantial hardship to or substantially prejudice the rights of any person or would be detrimental to good administration. Sub-rule (2) provides that in an application for an order of certiorari to remove any judgment, order, conviction or other proceeding into the Court for the purpose of quashing it, the relevant period for the purpose of Rule 1 is six months. In other words, as rightly submitted by learned counsel for the appellants, where an application is brought after six months, the Court has the discretion to grant or refuse the application, taking the factors in Rule 4 (1) (b) into consideration.’
IT WAS WITHIN THE TRIAL COURT’S DISCRETION TO GRANT THE APPLICATION
‘Contrary to the finding of the lower Court above, Order 37 Rule 4 is not expressed in absolute terms as found in most limitation statutes. In keeping with the general object of statutory interpretation, both subsections of the Rule must be read together to ascertain the intention of the legislature. It is quite evident that their Lordships read Rule 4 (2) in isolation without considering it alongside Sub-rule 1 and particularly, Sub-rule 1 (b). Had they done so, I have no doubt that they would have come to a different conclusion. Having regard to the peculiar circumstances of this case, in which the earlier proceedings were declared a nullity, it was within the trial Court’s discretion to grant the application. Furthermore, as rightly pointed out by the appellants at the Court below, the respondents failed to show that the Court’s discretion was wrongly exercised.’]
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.
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✓ DECISION:
‘The judgment of the lower Court delivered on 2nd July 2008 is hereby set aside. The judgment of the High Court of Anambra State, sitting at Otuocha delivered on 23/6/04 in Suit No. OT/MISC.4/97, quashing the proceedings, ruling and order of the Akwuzu Customary Court in respect of the motion dated 13/4/92 in suit no. CCA/2/92: Alexander Umeano & 2 Ors. Vs Albert Anaekwe & Anor., is hereby affirmed. The parties shall bear their respective costs in this appeal.’
➥ FURTHER DICTA:
⦿ DENIAL OF FAIR HEARING RENDERS PROCEEDINGS NULL & VOID
There is a plethora of authorities of this Court on the effect of a breach of the right to fair hearing. It is fundamental. It is a breach of one of the twin pillars of natural justice, “audi alteram partem,” meaning, “let the other side be heard”, the other being “nemo judex in causa sua” meaning “a person should not be a judge in his own cause.” A denial of fair hearing renders the affected proceedings and any order, ruling or judgment therein, null and void. See: Adigun Vs A.G. Oyo State (1987) 1 NWLR (Pt. 53) 678; Salu Vs Egeibon (1994) 6 NWLR (Pt. 348) 23 @ 44; Bamgboye Vs Unilorin (1999) 10 NWLR (Pt. 622) 290 @ 333; NUT, Taraba State & Ors Vs Habu & Ors (2018) LPELR – 44057 (SC) @ 13 – 14 D – A; Zenith Plastics Industries Ltd. Vs Samotech Ltd. (2018) LPELR 44056(SC) @ 13 – 14 D – F. — K.M.O. Kekere-Ekun JSC.
⦿ STATUTES ARE TO BE READ AS A COMPOSITE WHOLE
There are certain settled principles that guide the Court in the interpretation of statutes. Generally, statutory provisions must be interpreted in the context of the whole statute and not in isolation. They must be interpreted in a manner that is most harmonious with its scheme and general purpose. Furthermore, where the subject matter being construed relates to other sections (or subsections) of the same statute, they must be read, considered and construed together as forming a composite whole. See: General Cotton Mill Ltd. Vs Travellers Palace Hotel (2018) 12 SC (Pt. II) 106 @ 130 lines 14 -35; 168 lines 20 – 31. See also: Obi Vs INEC (2007) 7 SC 268; Akpamgbo-Okadigbo & Ors. Vs Chidi & Ors. (2015) 3 – 4 SC (Pt. III) 25; Nobis-Elendu Vs INEC (2015) 6 – 7 SC (Pt. IV) 1. — K.M.O. Kekere-Ekun JSC.
⦿ THREE RULES OF STATUTORY INTERPRETATION
Specifically, there are three main rules of statutory interpretation: (a) the Literal Rule: where the words are plain and unambiguous, they must be given their natural and ordinary meaning, unless to do so would lead to absurdity. The plain words used by the legislature provide the best guide to their intention. See:Adewumi & Anor. Vs A.G. Ekiti State (2002) 2 NWLR (Pt.751) 474; A.G. Lagos State Vs Eko Hotels & Anor. (2006) 18 NWLR (Pt.1011) 378; Ojokolobo Vs Alamu (1987) 3 NWLR (Pt.61) 377; Sani Vs The President FRN & Anor (2020) LPELR – 50990 (SC) @ 22 – 23 D -A. (b) The Golden Rule: Where the use of the Literal Rule would lead to absurdity, repugnance or inconsistency with the rest of the statute, the ordinary sense of the words may be modified so as to avoid the absurdity or inconsistency, but no further. See: General Cotton Mill Ltd. Vs Travellers Palace Hotel (supra); Grey Vs Pearson (1857) 6 HLC 61 @ 106; PDP & Anor Vs INEC (1999) 7 SC (Pt. II) 30; Saraki Vs FRN (2016) 1 – 2 SC (Pt. V) 59. (c) The Mischief Rule: Formulated and laid down in Heydon’s Case 3 Co. Rep. 7a @ 7b as follows: (i) “What was the common law before the making of the Act? (ji) What was the mischief and defect for which the common law did not provide? (iii) What remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth? and (iv) The true reason of the remedy; and then the office of all the judges is always to make such construction as shall suppress the mischief and advance the remedy …” — K.M.O. Kekere-Ekun JSC.
⦿ AN ACTION IS STATUTE BARRED WHERE BROUGHT OUTSIDE THE TIME ALLOWED
The appellants’ contention is that the above provisions provide for a limitation period after which no application for judicial review can be made or granted. The effect of a statute limiting the period within which certain actions can be brought to Court is that failure to bring the action within the time stipulated by the statute renders the action invalid and the Court without jurisdiction to hear the action or claim. An action or application filed outside the prescribed period is said to be statute-barred. See: Abubakar Vs Michelin Motor Services Ltd. (2020) LPELR-50837 (SC) @ 6 E – G; Egbe Vs Adefarasin (1987) 1 NWLR (Pt.47) 1; Hassan Vs Aliyu (2010) 17 NWLR (Pt.1223) 547. — K.M.O. Kekere-Ekun JSC.
➥ PARTIES:
⦿ APPELLANT(S)
Alexander Umeano
Nnamdi Ekweozor
Obiadi Ezenagu (For Themselves and On Behalf Of Umu-Ndum Family Adagbe Isioji Ifite Awkuzu)
⦿ RESPONDENT(S)
Albert Anaekwe
Nwankwo Obiegbu (For Themselves And On Behalf Of Ogbolo Family Ifite Awkuzu)
➥ LEAD JUDGEMENT DELIVERED BY:
Kudirat Motonmori Olatokunbo Kekere-Ekun, J.S.C.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
G.B. Obi Esq.
⦿ FOR THE RESPONDENT(S)
Sir Ejike Ezenwa, SAN.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
