CORAM

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PARTIES

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CHIEF OLU DAIRO APPELLANTS

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1. STANBIC IBTC BANK (Formerly Chartered Bank Ltd)2.CENTRAL BANK OF NIGERIA RESPONDENTS

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AREA(S) OF LAW

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SUMMARY OF FACTS

The Appellant secured a garnishee order nisi for the sum of N420,638.11K against the 1st Respondent in the Federal High Court, Lagos Division. The order was served on the 1st Respondent requiring him to show cause why the order would not be made absolute; to which he neglected to respond to and the court proceeded to make the order absolute. Further, the Appellant applied to court by a motion praying the 2nd Respondent to withdraw the operating licence of the 1st Respondent since it could not honour the garnishee order on the ground that the 1st Respondent has no capital base to carry out banking business. The lower court dismissed the application on the ground that the Applicant has not justified the granting of the order of mandamus. Aggrieved, the Appellant has appealed to this Court.

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HELD

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Appeal Dismissed

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ISSUES

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Whether it was proper for the learned judge not to follow the case of Chief Gani Fawehinmi vs. (1) Col. Halitu Akilu (2) Lt. Col. A.K. Togun (1978)4 NWLR (Pt. 67) 795 ratio 35 cited to the court below. Whether the Plaintiff/ Appellant was not denied a fair hearing? Whether the judgment is not against the weight of evidence?

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RATIONES DECIDENDI

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ORDER OF MANDAMUS – PURPORT OF AN ORDER OF MANDAMUS

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“In Comptoller General, Nigeria Customs Services &Anor vs. Minaj Holdings Ltd (2017) LPELR-43055 (CA), this court per Garba, JCA at pages 87-90 stated what the order of mandamus implies in these words:
“In simple terms, an order of mandamus is one issued by a Court of law to compel the performance of a public duty in which a party has sufficient legal interest, after refusal, failure or neglect to do so, on demand. Where a public officer or institution is vested with the authority, power or mandate by a statute or the subsidiary legislation, to perform a public duty or function of a public nature and refuses to perform or carry out that duty or function without cause after demand by a person who has sufficient legal interest in the performance of such a duty or function, an order may issue from a Court of law to compel the performance of the duty or function in question upon the fulfillment of certain conditions.
In the case of Fawehinmi vs. IGP (supra) mandamus is described as follows at p. 674-5 of the Report –
“Mandamus is a high prerogative writ which lies to secure the performance of a public duty, in the performance of which the applicant has a sufficient legal interest. It gives a command that a duty or function of a public nature, which normally, though not necessarily is imposed by status(sic) but is neglected or refused to be done after due demand, be done. If there is discretion in the performance of the duty, the Court has the power to examine whether the discretion to refuse to act has been properly exercised. In the exercise of that power, the Court will not lightly overrule the discretion just because it considers it desirable that the duty be performed. Even it if is found that the discretion was not properly exercised or that there was in fact no discretion at all in the matter, the Court may still exercise its own discretion not to order mandamus on the general ground that the Court would make no order in vain which could no longer be carried out; or on the other ground of expediency that it would serve no useful purpose even if the order were implemented. In whose instances, the exercise of the Courts discretion will need to pass the usual test: see De smith’s Judicial Review of Administrative Action, 4th Edition, pages 538-564 . If it does not, an order made by the Court is liable to (sic) set aside. See Adejumo vs. Ayantegbe (1989) 3 NWLR (Pt. 110) 477 at page 445; Okere vs. Nlem (1992) 4 NWLR (Pt. 234) 132 at page 149 149; Commissioner for Local Government vs. Kaderblai (supra) at pages 660-661.”
Following the above decision, this Court in the case of Anthony vs. Governor of Lagos State (2003) 10 NWLR (828) 288 @ 299 restated that: –
“It is settled that where a person or body has a duty of public nature to perform or discretion of a public nature to exercise, order of mandamus can be issued to compel the performance of the duty or exercise of the discretion provided a request to so do preceded it.” See also Fawehinmi vs. IGP (2000) 7 NWLR (665) 481.” –

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ORDER OF MANDAMUS – IMPLICATION OF AN ORDER OF MANDAMUS

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“The Supreme Court sees it as an order which a court, usually the High Court grants in favour of a person with legal right to compel another person usually a public officer to perform a legal public duty that it has refused to carry out or reluctant to carry out. The implication of such an order is that the public officer is compelled by law to carry out a public duty. The refusal to obey such an order can expose such an officer to contempt proceedings. In Chief Ikedi Ohakim vs. Martains Agbaso NSCQR Vol. 47 2011 page 324 @ 367-368, the apex court per Onnoghen JSC (as he then was) held:
“MANDAMUS is simply an order issued by a court of law, usually the High Court to compel the performance of a public duty in which the person applying for same (mandamus) has sufficient legal interest. In the case of Shitta-Bay vs. Federal Public Service Commission (1981) 1 S.C 40, IDIGBE, JSC described it as follows:-
“The order of mandamus, of course, only issues to a person or corporation, requiring him or them to do some particular thing therein specified, which appertains to his or their office, and is in the nature of public duty.” –

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ORDER OF MANDAMUS – NATURE OF MANDAMUS AND THE CONDITIONS TO BE SATISFIED FOR THE GRANT OF AN ORDER OF MANDAMUS

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The apex court similarly in Ayinda & Ors vs. Town Planning Authority &Anor (2013) 10 NWLR (Pt.1362) 226 stated the nature of mandamus and the conditions that must be satisfied before it can be granted. The court per Mohammed JSC held:
“Both the trial Court and the Court below thought that the Respondents were correct on their stand that in Nigeria before an Order of Mandamus can issue, there must be a demand to perform the duty sought to be enforced followed by refusal to perform. This position was endorsed by this Court in its decision, though obiter dictum in the case of Fawehinmi v. Akilu (1987) 4 N.W.L.R. (Pt.67) 797 at page 834 where Obaseki JSC said
“The Court may refuse to make an Order of Mandamus:
(1) Unless it has been shown that a distinct demand for performance of the duty has been made and that the demand has deliberately not been complied with – R. V. Witts& Berks Canal Co. (1835) 3 Ad & EC477; R. V. Stoke-On-Trent Town Clerk (1912) 2 KB 518;
(2) Where there is undue delay;
(3) Where the Applicant’s motives are unreasonable”
This statement by Obaseki JSC on the requirement for performance of the duty sought to be enforced and deliberate refusal to comply as condition for the grant of an Order of Mandamus, might have originated from the position on the subject as expressed in Halsbury’s Laws of England 4th Edition Volume 1 page 134 paragraph 124 where the authors said on the Order of Mandamus as follows –
“As a general rule, the Order will not be granted unless the Party complained of has known what it was he was required to do so that he had the means of considering whether or not he should comply, and it must be shown by evidence that there was a distinct demand of that which the party seeking the Mandamus desires to enforce and that demand was met by refusal.”
In addition, this general rule on the grant of Order of Mandamus was further endorsed by this Court in the case of Fawehinmi vs. Inspector General of Police (2002) 7 N.W.L.R. (Pt.767) 606 at 697 – 698 where Kalgo JSC said –
“The prerogative writ of Mandamus is issued or ordered by the Courts to secure or enforce the Performance of a public duty. It is pre-eminently a discretionary Power and the Courts will decline to award it if other legal remedies are available and effective. An Applicant for the grant of the Order must show that he has sufficient legal interest to protect and that he has demanded the performance of the Public duty from those obliged to do so and was refused.”
Furthermore, this requirement of demand and refusal as a condition to be complied with before bringing an action for an Order of Mandamus in Nigeria was recently applied by this Court in Chief Ohakim v. Chief Agbaso (2010) 6 – 7 S.C. 85 at 132 where my learned brother Onnoghen, JSC in the lead judgment said
“In an application for Judicial Review by way of an Order of Mandamus, the applicant is expected to fulfill certain conditions such as that which requires the Applicant to first and foremost request the public body to perform the duty in question and that body fail and or refuse to do so before an Application for Mandamus is presented at the High Court to compel performance of the said duty.The reason why a request for performance of the official duty has first to be made before issuance of the Order of Mandamus is to offer the Public body or Person concerned the opportunity of making amends on Performing the duty. It is only when the Person or body fails or refused to do so that he or they can be compelled by an Order of Mandamus to do so. The prior demand for Performance is to offer the Public body the needed opportunity to perform the public duty in question or make amends.”
The position is therefore quite plain that the requirement of demand for performance of the public duty countered with refusal to perform, is part of the requirements of the law to be complied with before an Applicant for an Order of Mandamus can be entitled to that relief.
In the case at hand, it is not at all in dispute that prior to the filing of the Appellants application for the Order of Mandamus at the trial Court there was no communication between them and the 1st Respondent requesting it to perform the duty of demolishing the buildings and structures of the 2nd Respondent on Numbers 14A and 14B of Idowu Martins Street, Victoria Island, Lagos and that the demand or request was refused. For this reason the trial Court was on a very firm ground in law in refusing the Appellants’ application for Mandamus and the Court below was equally right in affirming the decision of the trial Court on appeal. In this respect the first issue in this appeal on whether Nigerian law requires that an Applicant for an Order of Mandamus must establish that he made a prior demand for the performance of the duty sought to be enforced to comply with the demand is resolved in the affirmative. This is because without making the demand for the performance of the public duty, the body on which the Order is sought, would not be in a position to take decision to comply with the demand or not, since where the demand for the performance of the duty is complied with the need to approach the Court for an Order of Mandamus to enforce compliance with the demand cannot arise.” —

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DECISION OF COURT – BASIS ON WHICH A COURT IS BOUND TO FOLLOW THE DECISION OF A COURT

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“The law is that cases are decided based on peculiar facts and that a court is only bound to follow the decision of a court if the facts are materially the same. See Mai-Kiri vs. Yahaya (2018) LPELR-46595”.

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ALLEGATION OF DENIAL OF FAIR HEARING –DUTY OF A COUNSEL WHEN RAISING AN ALLEGATION OF DENIAL OF FAIR HEARING

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“The allegation of denial of fair hearing is a serious allegation and so counsel when raising it as an issue must have enough evidence to show such denial. Once a court denies a party the right to fair hearing, the whole proceedings becomes a nullity and it really does not matter whether the decision is right or wrong. See MFA & Ors. vs. Inongha (2014) LPELR-22010 (SC)”.

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ALLEGATION OF DENIAL OF FAIR HEARING – LEGAL EFFECT OF AN ALLEGATION OF DENIAL OF FAIR HEARING

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“The legal effect of the allegation of the denial of fair hearing makes it very apt that parties should not just raise it for the fun of it. Parties or their counsel should not see it as a life jacket for a drowning case. Before a party raises it, there must be adequate evidence. It will be taking it too far to say because a court did not consider a point raised by any of the parties exhaustively in the way the party wants, then that there is a denial of fair hearing. This is what the allegation is all about. Fair hearing is said to be denied a party when he is not given the opportunity to present his case adequately. The case presented must be in relation to the material facts or the live issues before the court. To put it clearly, once a court gives all the parties the opportunity to present their case, none of the parties can complain of lack of fair hearing. In Ndukauba vs. Kolomo&Anor (2005) 1 SC (Pt. 1) 80 the apex court held:
“In Otapo vs. Sunmonu (1987)2 NWLR (Pt. 58) 587 at 605, this court per Obaseki, JSC considered the nature of this concept of fair hearing thus: “A hearing can only be fair when all parties to the dispute are given a hearing or an opportunity of a hearing. If one of the parties is refused a hearing or not given an opportunity to be heard, the hearing cannot qualify as a fair hearing…. Without fair hearing, the principles of natural justice are abandoned; and without the guiding principles of natural justice, the concept of the Rule of Law cannot be established and grow in the society. As aptly stated by Nnamani, JSC in Exparte Olakunrin (1985) 1 NWLR (Pt.4) 652 at 668.”
See also Arije vs. Ajire & Ors (2018) LPELR- 44193(SC); Obaro vs. Hassan (2013) 8 NWLR (Pt. 1357) 425. –

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CASES CITED

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None

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STATUTES REFERRED TO

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Bank and Other Financial Institution Act 1991|

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