In The Court of Appeal

(Lagos Judicial Division)

On Monday, the 27th day of March, 2000

Suit No: CA/L/111M/95

Before Their Lordships

 Between

 And

OGUNTADE, J.C.A. (Delivering the Leading Judgment): The 2nd respondent as plaintiff before the Magistrate Court, Court 1, Apapa in Suit No. MCA/302/91, brought a claim against the appellant as the defendant for arrears of rent and possession in respect of a flat situated at 59, Oluwa Street, Olodi, Ajegunle which the appellant was alleged to have occupied as the tenant of 2nd respondent. 

The records of court show that on 21/3/91, the appellant pleaded liable to the claim for arrears for the rent but resisted the claim for possession. Judgment was accordingly given against the appellant for the sum of N2,400.00k being arrears of rent. The claim for possession was adjourned to 2/5/91.

The appellant later brought notice of preliminary objection before the learned Magistrate contending that the court had no jurisdiction to hear the suit. The ground for the notice of preliminary objection was stated thus:

"That this suit not being a Landlord/Tenant matter simpliciter but a matter which borders on ownership of property is outside the jurisdiction of this Honourable Court."

The learned Chief Magistrate i.e. 1st respondent on 11/6/91, overruled the objection.

The appellant did not appeal against the ruling of the 1st respondent overruling his notice of preliminary objection. Rather, he brought an application before the lower court (Coram Famakinwa J.), pursuant to Order 53 rules 1, 2, 4 of the High Court of Lagos State (Civil Procedure) Rules, 1972 praying for the following:

"1. For leave to apply for the Orders of certiorari and prohibition to set aside or quash the liability of  N2,717.00k entered against the applicant herein by first respondent and to prohibit the further hearing/trial in Suit No. MCA/302/91, by the first respondent herein B. A. Labisi Esq., Chief Magistrate Grade One for lack of jurisdiction.

2. That all proceedings in the said suit No. MCA/302/91, be stayed until after the hearing of this application.

3. And for such further order or orders as the Honourable Court may deem fit to make this (sic) circumstances".

After arguments, Famakinwa J. on 7/11/94, dismissed the application. 

Dissatisfied with the dismissal of his application, the appellant has brought this appeal on two grounds of appeal which read thus: 

"(1)  Error in Law

The learned trial Judge erred in law when he held that the proper option open to the appellant was to against appeal the decision of the court of first instance, despite the uncontradicted affidavit evidence before the court showing that the second respondent lacks locus standi in the matter and thereby ousting the jurisdiction of the first respondent.

     Particulars of Error 

There was uncontradicted affidavit evidence that there was no tenant/landlord relationship between the appellant and the second respondent but on the contrary there was a tenancy agreement between the applicant and a limited liability company Exhibits F.N. 6 and F.N.7 respectively.

2.   Error in Law 

The learned trial Judge erred in law when he failed to take into consideration or advert his mind to the Supreme Court decision in Adesokan v. Adetunji (1994) 6 SCNJ (Pt.1) 123 at 146; 5 NWLR (Pt.346) 540 which is very relevant to the point in issue and which was cited to him.

     Particulars 

The Supreme Court decision in Adesokun v. Adetunji (1994) 6 SCNJ (Pt.1) 123 at 146, (1994) 5 NWLR (Pt.346) 540 which was cited to the Honourable Court below, decided that at whatever stage the finding is made that the plaintiff lacks locus standi to maintain an action, the jurisdiction of the court to entertain the action is affected and the course of action open to the court is to put an end to it by striking out

3.    Error in Law

The learned trial Judge erred in law by lumping together the claims and/or reliefs of certiorari and prohibition and thereafter held that the action was statute-barred.

     Particulars

The appellant's claims and/or reliefs sought in the court below were for the Orders of certiorari and prohibition to set aside or quash the liability of  N2,719.00k entered against the appellant herein by the first respondent and to prohibit further hearing/trial in suit No.MCA/302/91 by the first respondent for lack of proper plaintiff before the court and for lack of jurisdiction. Under the Rules of court, there is no time limit within which to take out an order of prohibition unlike in the case of certiorari which has a time limit. 

In the appellant's brief filed, the issues for determination were identified as the following:

"(1) Whether the ruling (Judgment) of the learned trial Judge was not entered in disregard of the Supreme Court decision in Adesokan v. Adetunji (1994) 5 NWLR (Pt.346) 540; (1994) 6 SCNJ (Pt.1) 123 at 140 on the issue of proper plaintiff which was cited to the court and to have held otherwise.

(2) Whether the learned trial Judge was right to have lumped together the reliefs of certiorari and prohibition and thereafter holding that the action was statute-barred. 

(3) Whether the action was statute-barred as regards one of the reliefs i.e. certiorari".

I start a consideration of the issues for determination by taking a close look at the foundation of the application made before the lower court. The appellant had raised before the trial Magistrate court that there was no jurisdiction in the court to hear the suit on the ground that title to the property in which the appellant resided was involved. The Magistrate examined the objection and ruled thus at page 32 of the record:

"While a Magistrate cannot try a case that raises title to land or interest in land, Section 17(2) of the Magistrate Court Law refers, the issue of title must be raised bona fide.

It is my view that annexure 'A' prima facie does not raise the issue of title. I agree with the submission of learned counsel for the plaintiff that evidence must be led and the court must decide whether the issue is raised before assuming jurisdiction.

In the light of the foregoing, I do not find any merit in the application before the court and it is hereby dismissed".

Put simply, what the learned Magistrate said is that the objection at the stage it was raised was premature and that he would take evidence in order to determine whether indeed title to land was involved in the matter. It could well be that the material before the learned Magistrate was sufficient for him to decide the issue of jurisdiction raised by the appellant. But the appellant never appealed against the decision of the Magistrate. Rather, he brought the application for Certiorari and prohibition before the lower court.

It is trite law that the remedies of certiorari and prohibition are available:

"Where-ever anybody or persons having legal authority to determine questions affecting the rights of subjects and having the duty to act judicially, act in excess of their legal authority." See R. v. Electricity Commissioners (1924) 1 K.B. 171, 204-205 per Atkin LJ. 

The remedies are also invocable where there are errors on the face of the records of a judicial tribunal or where it acts without jurisdiction. But a tribunal does not go beyond its jurisdiction merely by making a decision that is erroneous in law or fact. See R. v. Governor In-Council Ex Parte Ojo (1962) 1 All N.L.R 147. In the application before the lower court, the appellant had called on it to set aside the order granting judgment for N2,717.00k against the appellant. That order as I said earlier was made on 21st day of March, 1991. The court record for the day read:

                       Suit No.MCA/302/91

"Madam H. Chibuzo...    Plaintiff

and

F. Nebedum Defendant...  Defendant

Parties present.

Claim is read over and explained to the defendant in English language. He pleads liable to arrears of rent and resists possession.

Mr. Oguile for the plaintiff.

Mr. Ogoana, counsel for the defendant wrote for adjournment. Counsel for the plaintiff asks for judgment for arrears of rent.

(Judgment)

Upon the admission of the defendant, judgment is entered for the plaintiff in respect of arrears of rent. The defendant is ordered to pay to the plaintiff the sum of N2,400 being arrears of rent from May to December, 1990. Claim for possession is adjourned to 2/5/91".

Ex-facie, the above proceedings are regular. The appellant has not impeached the records as not being a true recording of what transpired. It was not stated that there was any error of law on the face of the record. It was also not the case of the appellant that the 1st respondent's court had no jurisdiction to entertain the claim for arrears of rent and possession. 

With respect to the objection as to the jurisdiction of the lower court in respect of which the learned Magistrate made a ruling on 11/6/91, the worst that can be said of the ruling is that the learned Magistrate might have erred in his decision that he had jurisdiction in the matter. Nobody had argued that the Magistrate court had no jurisdiction in claims for arrears and possession. Although, it was the objection of the appellant that title was involved in the matter, the fact that the Magistrate in his ruling assumed jurisdiction does not lead to a conclusion that in all cases a Magistrate court has no jurisdiction in cases of arrears of rent and possession. This was not therefore a case in which certiorari or prohibition could issue on the ground that a Magistrate court sat over a matter in which it had no jurisdiction. If the learned trial Magistrate had erroneously decided on the objection as to jurisdiction, that only gave to the appellant the right at his election to bring an appeal against the ruling. When therefore the lower court said in the ruling now appealed against that:

"The mere fact that 1st respondent dismissed the notice of preliminary objection would not be sufficient to oust his jurisdiction in a matter which is for recovery of possession of a premises in Lagos State of which he has jurisdiction. If the applicant is dissatisfied that the preliminary objection is dismissed, the proper action which he ought to take thereafter is to file a notice of appeal against the decision of the learned Chief Magistrate." 

It was clearly correct.

The argument that the lower court did not apply the decision in Adesokan v. Adetunji (supra) is misconceived. Since the lower court did not decide that the 2nd respondent has no locus standi, the necessity to abort the proceedings before the Magistrate Court for the reason that the 2nd respondent had no locus standi did not arise.

It was the appellant's second issue that the lower court for the purpose of determining whether or not the application for certiorari was time barred lumped the consideration for certiorari together with that of prohibition. It is correct that there was a time limit of six months for certiorari under Order 53 of the Lagos State High Court (Civil Procedure) Rules, 1972. This did not apply to an application for prohibition. But that distinction does not have any consequence in this application. Once it is accepted that either of the application for certiorari or prohibition is unavailable to the appellant in the circumstances of this case, it made no difference that the application was refused. Its practical effect was that there were two good reasons for refusing to grant the application for certiorari while there was only one for refusing to grant that of prohibition. Both applications at the end of the day had failed to scale the hurdle.

Finally, is the question whether the application for certiorari was statute-barred. The application could only be validly brought six months after the date of the judgment, order, conviction or other proceeding sought to be quashed. The relevant Order 53 rule (2) (2) of the High Court of Lagos State (Civil Procedure) Rules, 1972 provides:

"Leave shall not be granted to apply for an order of certiorari to remove any judgment, order, conviction or other proceedings for the purpose of its being quashed, unless the application for leave is made not later than six months after the date of the proceeding or such shorter period as may be prescribed by any enactment; and where the proceeding is subject to appeal and a time is limited by law for the bringing of the appeal, the court or a Judge in Chambers may adjourn the application for leave until the appeal is determined or the time for appealing has expired".

The ruling which the appellant sought to quash was made on 6/6/91. The application for certiorari and prohibition was not made until 17/2/92. The appellant did not seek extension of time. The lower court could not therefore grant the prayer. The non-objection or waiver by the respondents could not confer on the lower court a power which was no longer its to invoke.

Before finally concluding, it needs be said here that the jurisdiction to quash for error of law on the face of the record is not in all respects to be equated with an appellate jurisdiction. See R. v. Paddington North & SJ. Marylebone Rent Tribunal Ex Parte Perry (1956) 1 Q.B. 229; Northumberland case (1952) 1 K.B. at 346-347, 335; and R. v. Industrial Court Ex parte Aeronautical Engineers Association (1953) 1 Lloyd's Rep. 597. Thus certiorari is a discretionary remedy and may be withheld if the conduct of the applicant, or it would seem, the nature of the error does not justify judicial intervention. Nor can the court vary the inferior tribunal's order unless the defective part is severable so that the remainder can be left intact. 

In the final conclusion, this appeal fails. It is dismissed with N3,000.00k costs to the 2nd respondent.

ADEREMI, J.C.A: I have read, before now, the judgment just delivered by my learned brother Oguntade, JCA. I agree with the reasoning and conclusions he reached in the said judgment.

By way of contribution, I make the following comments; the facts have been succinctly stated but for emphasis I wish to say that from the records, the 2nd respondent sued the defendant/appellant in the Magistrate court claiming arrears of rents and possession of the flat occupied. The appellant submitted to judgment with respect to arrears of rents but contested the claim for possession. The trial Chief Magistrate (1st respondent) entered judgment in favour of the 2nd respondent for the arrears of rents but adjourned the claim for possession. The printed record shows that there was no appeal against the judgment of the learned Chief Magistrate. The subsequent notice of preliminary objection he brought before the trial court contending that the court lacked jurisdiction to entertain the suit was overruled by the Chief Magistrate. Again, there was no appeal against the ruling. In a round-about-turn, the appellant brought an application before the court below presided over by Famakinwa J. invoking the application of two of the prerogative orders i.e. certiorari and prohibition to quash the judgment of the trial Chief Magistrate with respect to the arrears of rents and prohibit him from further hearing the case.

Undoubtedly, the proposition that certiorari lies only to quash judicial or quasi-judicial acts remains true till date. Indeed, its scope extends to all authorities or bodies exercising judicial or quasi-judicial powers. See (1) Head of the Federal Military Government and C-In-C v. The Military Gov. Mid-Western State of Nig.  & Anor. Ex-parte Ambrose I. Obiyan (1973) 12 S.C. 23 and (2) Ali v. Jayaratne (1951) A.C. 66. The decision sought to be quashed was handed down by a Chief Magistrate Court and so ordinarily, the hands of these branches of prerogative orders would reach that decision in the exercise of the power of a superior court, the likes of the High Court, Court of Appeal and Supreme Court, to control the proceedings of an inferior court the likes of the Magistrate Court. The question is when does a superior court exercise such power? The answer to that question is that certiorari will issue to quash the decision of an inferior court where it is established that there are errors of law on the face of the record of the lower court or where the said lower court has acted in excess of its jurisdiction including breaches of natural justice or that the decision of the afore-mentioned court was obtained by fraud, perjury or collusion. See R v. Northumberland and Compensation Appeal Tribunal Ex parte Shaw (1952) 1 A.E.R. 122. But, the application of prerogative orders is limited in scope. In R. v. Hillingdon London Borough Exparte Royco Homes Ltd. (1974) 2 A.E.R. 643 Widgery C. J. (England) observed at page 648 thus:

"It has always been a principle that certiorari will go only where there is no other equally effective and convenient remedy".See also R. v. Hallstrom Ex-parte Shaw (1985) 3 A.E.R. 775. That there is a statutory right of appeal against the decision of the Chief Magistrate is not in doubt. Let me however say that it has now been firmly established that statutory right of appeal must never be supplanted by judicial review process. See Preston v. IRC (1982) 2 A.E.R. 327.

For the fuller reasons given in the leading judgment and complimented by the little contributions I have made I also pronounce the appeal to be unmeritorious, it fails. I abide by the order as to cost.

NZEAKO, J.C.A: I am in agreement with the judgment just delivered by my learned brother Oguntade JCA. The appeal fails and I also dismiss it with N3,000.00 costs to the 2nd respondent.

Appeal dismissed.

     Appearances