CORAM
UMARU ATU KALGO, JUSTICE SUPREME COURT
UMARU ATU KALGO, JUSTICE SUPREME COURT
UMARU ATU KALGO, JUSTICE SUPREME COURT
UMARU ATU KALGO, JUSTICE SUPREME COURT
UMARU ATU KALGO, JUSTICE SUPREME COURT
UMARU ATU KALGO, JUSTICE SUPREME COURT
UMARU ATU KALGO, JUSTICE SUPREME COURT
UMARU ATU KALGO, JUSTICE SUPREME COURT
UMARU ATU KALGO, JUSTICE SUPREME COURT
SIR DARNLEY A.R. ALEXANDER, JUSTICE, SUPREME COURT
UMARU ATU KALGO, JUSTICE SUPREME COURT
UMARU ATU KALGO, JUSTICE SUPREME COURT
UMARU ATU KALGO, JUSTICE SUPREME COURT
PARTIES
MADAM AKON IYOHO. APPELLANTS
RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
In an action for rent arrear and recovery of possession at the rent control court, judgment was entered for the respondent. Whereat the appellant brought an application for certiorari in the high court to have the decision of the tribunal quashed and she be restored to possession; which was granted. Her application was pending the hearing of the appeal filed by her at the high court. The respondents successfully appealed to the court of appeal. The appellant appealed to the Supreme Court.
HELD
In dismissing the appeal with cost to the respondent, the court held that Order 46 Rule (6) of the High court civil procedure rules of Cross River stipulates that the application for certiorari can only be brought after the expiration of time allowed for appeal. Since the time which the appellant’s application was brought was within the time reserved for lodging of an appeal, the order made was incompetent.
ISSUES
“Whether the learned Justices of the Court of Appeal were right in law when it (sic) held that the period allowed for Appeal in Order 43 of the High Court Procedure rules of Cross River State must expire before the appellant herein can seek the remedy of Judicial Review particularly that of certiorari.”
RATIONES DECIDENDI
PARTY NOT SERVED WITH A HEARING DATE OF PROCEEDINGS – JUDGMENT DELIVERED AGAINST HIM.
“I have observed above that the appellant, before bringing her application for certiorari in the High Court had brought an application before the Rent Control Court to set aside the judgment given against her. She relied on the fact that she was not given a hearing date for the proceedings which led to the judgment against her. This was the correct thing to have done as a party not served with the hearing date of proceedings leading to a judgment or order made against him is entitled ex-debito justitiae to have the proceedings set aside as a nullity” .” PER A. M. MUKHTAR, JSC
A GROUND OF APPEAL FROM WHICH NO ISSUE HAS BEEN RAISED AND ON WHICH NO ARGUMENT IS CANVASSED IS DEEMED ABANDONED.
A GROUND OF APPEAL FROM WHICH NO ISSUE HAS BEEN RAISED AND ON WHICH NO ARGUMENT IS CANVASSED IS DEEMED ABANDONED.
LEAVE FOR JUDICIAL REVIEW GRANTED BEFORE THE TIME FOR APPEAL HAS ELAPSED IS INCOMPETENT.
“A point well taken in this regard is that leave granted before the expiry of the time limit for appealing against the said decision is irregular and incompetent.” PER A. M. MUKHTAR, JSC
A DECISION NOT APPEALED AGAINST IS DEEMED ACCEPTED BY THE PARTY AGAINST WHOM IT IS GIVEN.
“It is settled law that a decision of the court not appealed against is deemed accepted by the party against whom the decision was entered and therefore binding. I hold the view that granted, and without conceding that appellants issue for consideration in this appeal succeeds, the legal effect of that decision would not be sufficient to set aside the decision of the lower court in view of the fact that court had held in addition that the suit giving rise to the appeal before it was instituted in abuse of process and that decision remained subsisting and binding. Such a victory would be meaningless indeed” PER A. M. MUKHTAR, JSC
AN APPLICATION STRUCK OUT AS CONSTITUTING AN ABUSE OF PROCESS AUTOMATICALLY TERMINATES SAME – IT CAN ONLY BE REVIVED ON APPLICATION OF EITHER OF THE PARTIES.
“I am, all the same, to observe pointedly even though briefly that whereas in this instance an application as per suit No. C./Misc./68/98 has been struck out as constituting an abuse of process it goes without more that the said suit has terminated; the bottom having been knocked off the case” PER A. M. MUKHTAR, JSC
INTERPRETATION OF STATUTES – PLAIN WORDS IN A STATUTE MUST BE GIVEN THEIR PLAIN MEANING
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“There is a plethora of authorities that has settled this issue of interpretation, which have striven to frown at the tendency to misconstrue the intent or purport of the provision of a law and in the process import extraneous factors into it. It is settled law, that in interpreting a law, plain words must be given their plain meanings” PER A. M. MUKHTAR, JSC
AN APPLICANT FOR JUDICIAL REVIEW MUST WAIT UNTIL THE PERIOD SET ASIDE FOR APPEAL HAS ELAPSE.
“Applying the above definition I am satisfied that the requirement of the provision of the said Order 43 Rule 6 needs to be fulfilled. The appellant should have waited until the period allowed for appeal has elapsed. Section 39 (1) of the Rent Control Edict allows 30 days within which to appeal, and that 30 days had not expired in this case before the appellant filed the application for leave to apply for an order of certiorari, contrary to the provision of Order 43 Rule 6 of the High Court Civil Procedure Rules supra. As can be seen from the record of proceedings the judgment of the Rent Control Court was on 9/4/98, and the application was dated 17/4/98 In the circumstance I fail to see that the lower court, as per Edozie JCA (as he then was) was in error when it held as follows in its judgment. “In the instant case where the lower court granted leave for an order of certiorari to quash the decision of the Rent Control Court before the time limited for appeal against that decision had expired, the leave so granted was irregular and incompetent. It is therefore my view that the application for judicial review by certiorari proceedings commenced in the High Court in suit No. C/MSC68/98 to quash the judgment of the Rent Control Court delivered on 9/4/99 before the period of appealing against that judgment is in breach of Order 43Rule 3 (6) of the High Court Civil Procedure Rules of Cross River State 1987.” PER A. M. MUKHTAR, JSC
CASES CITED
1. Ziza v. Mamman (2002) 5 NWLR part 760 page 340.
2. Adisav. Oyinwole 2000 10 NWLR part 674 page 116
3. Amadi v. N.N.P.C.( 2000) 10 NWLR part 674 page 76.
STATUTES REFERRED TO
1. The Constitution of the Federal Republic of Nigeria,1979.
2. The Constitution of the Federal Republic of Nigeria,1999.