(2021) Legalpedia (CA) 41490
In the Court of Appeal
HOLDEN AT CALABAR
Tuesday, February 23, 2021
Suite Number: CA/C/98/2020
|MOJEED ADEKUNLE OWOADE
JAMES SHEHU ABIRIYI
MUHAMMED LAWAL SHUAIBU
|CAMERON OFFSHORE SYSTEM (NIG) LTD
AKWA IBOM ENVIRONMENTAL PROTECTION & WASTE MANAGEMENT AGENCY & ANOR
AREA(S) OF LAW
PRACTICE AND PROCEDURE
SUMMARY OF FACTS
The Applicant before the High Court of Akwa Ibom State, through a motion on notice filed and brought pursuant to Order 40 Rule 5(1) & (2) of the Akwa Ibom State High Court (Civil Procedure) Rules 2009, sought an Order of Certiorari quashing charge NO REU/1133C/2018 – Akwa Ibom Environmental Protection and Water Management Agency v. Cameron Offshore System Nigeria Limited, and all other proceedings already undertaken in the manner pursuant to the charge. Upon service of the motion papers on the Respondents, the 1st Respondent filed a counter affidavit in opposition. After considering the affidavit evidence, learned trial Chief Judge held inter alia that notwithstanding, the amount involved the charge preferred against the Applicant is within the jurisdiction of the State Revenue Court. The Court consequently dismissed the motion. Dissatisfied with the decision of the trial court, the Appellant appealed to this Court contending that it is not engaged in petroleum refining & petroleum producing and petroleum products manufacturing to bring it under the contemplation of Section 7 (h) and 36 Schedule II category A (i) of the Akwa Ibom State Environmental Protection and Waste Management Agency Law as one of the Companies liable to pay effluent (pollution) fee and thus, the law is not applicable to the Appellant.
Issues Of Determination
Whether in the circumstances of this case the lower Court was right when the Court held that the order of certiorari was not available to the appellant.
“Generally, to obtain an order of certiorari, two applications are necessary. The first is an application for leave of the Court to apply for the order, which is made exparte to the Judge and must be supported by a statement setting out the name and description of the applicant and the relief and grounds on which it is sought, and an affidavit verifying the facts relied on. The second application is for the order of certiorari itself and it is made on notice to other parties after the leave sought in the first has been granted”.
“Order 40 Rules 5 (1) and (2) of the High Court (Civil Procedure) Rules 2009 of the Akwa Ibom State has alluded to the above requirement wherein it provides as follows:- “40 (1) An application of mandamus, prohibition or certiorari shall be made by way of an application for judicial review in accordance with the provision of this order. 5(i) When leave has been granted the application shall be made by motion or by originating summons. (2) The notice of motion or summon shall be served on all persons directly affected and where it relates to any proceedings before a Judge and the object of the application is either to compel the Judge or an officer of the Court to do any act in relation to the proceedings, or to quash them or any order made therein, the notice or summons shall also be served on the clerk or registrar of the Court. (3) Unless the Judge granting has otherwise directed, there shall be at least 7 days between the service of the notice of motion or summons and the day named therein for hearing. (4) A motion shall be entered for hearing within 14 days after the grant of the leave. (5) An affidavit giving the names and addresses of… and places and date of service on all persons who have been served with the notice of motion or summons shall be filed before the motion or summon is entered for hearing and if any person who ought to be served under this Rule has not been served, the affidavit shall state that fact and the reason for it and the affidavit shall be before the Judge on the hearing of the motion or summons.”
“As posited that judicial review is based on a fundamental principle that is inherent in our legal system, which is that the power can be validly exercised only within their time limits. It is thus, a mechanism for keeping public authorities within due bounds and for upholding the rule of law. Instead of substituting its decision for that of some other body as it happens on appeal, the Court on review is concerned only with the question whether the act or order being challenged should be allowed to stand or not. In effect, the Court is concerned with the legality and not the merit of the decision or the acts of the public authority. See Amadi V. Acho (2005) 12 NWLR (prt 939) 386, Nigerian Association Of General Practice Pharmacists Employers (NAGPPE) V. Pharmacist Council Of Nigeria & Ors (2013) LPELR – 21834 (CA) and ACB V. Nwaigwe (2011)7 NWLR (prt 1246) 380”.
“The law is that prerogative writs of certiorari and prohibition apply only against the acts and decisions of bodies or persons exercising administrative or judicial quasi-judicial authority affecting the rights of people which makes it mandatory for them to act fairly and in respect of acts performed or decisions taken by them in that capacity. They do not apply or lie against executive or legislative acts, or mere administrative acts because such acts are not performed in accordance with the rules of fair hearing. See Magit V. University Of Agriculture, Makurdi (2005)19 NWLR (prt 959) 21, Manuwa V. National Judicial Council (2013) 2 NWLR (prt 1337)1 and St. Micheal Pharmaceutical Ltd V. Moore Associates Ltd & Anor (2015) LPELR – 24593 (CA)”.
There are basically four conditions on any one of which the order of certiorari may be granted and they are: – (a) Lack of jurisdiction; (b) Breach of rules of natural justice, (c) Error of law on the face of the records, and (d) Decision obtained by fraud or collusion. It is of the utmost importance that the Court should act to prevent an injustice being done when the remedy sought is within its powers to grant. The High Court has an inherent power, unfettered by statute to control inferior tribunals in a supervisory capacity. Such control is by means of certiorari to keep the inferior tribunal within the law within bounds and within such jurisdiction as the legislature deem fit to confer upon it. See Agwuegbo V. Kagoma (2000)14 NWLR (prt 678) 252 and State V. Lawal (2013) 7 NWLR (prt 1354) 565.”
“By virtue of Section 48 of the Environmental Protection and Waste Management Agency Law, its coverage remains the Akwa Ibom State. Furthermore, the legislative competence of the Akwa Ibom State House of Assembly pursuant to Section 4 (b) of the Constitution of the Federal Republic of Nigeria 1999 as amended is confined and restricted to the geographical area of Akwa Ibom State. Thus, any law that seeks to impose civil or criminal penalty outside the territorial area of the state shall be ultra vires the legislative powers of the State House of Assembly. Furthermore, Courts in a given state shall only exercise jurisdiction within the confines of that particular state”.
“The provision of Section 1 (1) of the Exclusive Economic Act, Cap. 17 of the Laws of the Federation of Nigeria, 2004 leave no one in doubt that same is outside the domain of a state. The said Section 1(1) of the Act provides: “Section 1(1) – Subject to the other provision of this Act, there is hereby denominated a zone to be known as the Exclusive Economic Zone of Nigeria (in this Act referred to as the “Exclusive Zone”) which shall be an area extending from the external limits of the territorial waters of Nigeria up to a distance of too nautical rules from the baseline from which the breath of the territorial waters of Nigeria is measured.” If a law is restricted by territory, that law cannot be applied outside that territory. The only circumstances where the Court in the territory where the law is made can apply is where part of the offence is committed in that territory which is not the case here. See Morah V. Federal Republic Of Nigeria (2018) 75 NWLR (prt 1641) 60”.
“As part of its supervisory control over an inferior Court, tribunal or a body entrusted with the performance of a judicial or quasi-judicial function, a High Court must ensure that it does not exceed its jurisdiction or commit irregularities thereby making its decision bad on its face. See Nwaoboshi V. Military Administrator Delta State (2003) 11 NWLR (prt 831) 305. Also in State V. Lawal (Supra) the Supreme Court has held that a serious error of law on the face of the record of an inferior Court will justify the removal of the entire proceedings of the Court to the High Court by certiorari order to be quashed by the High Court in the exercise of the supervisory powers of the High Court. It needs to be restated that jurisdiction of a Court to hear a matter is a hard matter of law that can only be determined in the light of the enabling statute. Thus, a Court of law cannot add to or subtract from the provisions of the statute. As a matter of law, a Court must blindly follow and apply the jurisdictional limits and limitations as contained or provided in a statute. It is the statute that is the master and all that a Court of law does is to interpret the provisions of the statute in order to achieve the clear intention of the lawmaker. See Madumere V. Okwara (2013) 12 NWLR (prt 1368) 303, Opara V. Amadi (2013) 12 NWLR (prt 1369)512 and Abdulsamad & Ors V. Ibrahim & Ors (2015) LPELR 40388 (CA).
STATUS(ES) REFERRED TO
Akwa Ibom State Environmental Protection and Waste Management Agency Law, Cap. 47, Laws of Akwa Ibom State of Nigeria, 2000.|Akwa Ibom State High Court (Civil Procedure) Rules, 2009|Constitution of the Federal Republic of Nigeria 1999 as amended|Exclusive Economic Act, Cap. 17 of the Laws of the Federation of Nigeria, 2004|Magistrates’ Courts Cap. 82 of the Laws of Akwa Ibom State|
M. E. Ugbeta For Appellant(s)|Inem Okorie For Respondent(s)|