NWOSU & ORS V. ISMAILA & ORS (2017)

Background

This appeal arose from proceedings concerning the management and affairs of FinBank Plc. The 1st–5th respondents had commenced proceedings at the Federal High Court by an ex parte application seeking leave to apply for judicial review and an order of certiorari. Their intended substantive application sought to quash a joint special examination report prepared by the Central Bank of Nigeria (CBN) and the Nigerian Deposit Insurance Corporation (NDIC), together with decisions and actions taken in consequence of that report, including the removal of FinBank’s managing director and executive directors.

When the ex parte application came before the Federal High Court, the trial judge raised, suo motu, the question whether the proposed proceedings were barred by limitation. Counsel was invited to address the court, after which the court granted leave to apply for certiorari in its ruling of 12 February 2010. The applicants subsequently filed the substantive motion on notice. The CBN and the other respondents objected, arguing that the substantive application had been filed outside the three-month period prescribed by Order 34 of the Federal High Court (Civil Procedure) Rules 2009 and by section 2(a) of the Public Officers Protection Act.

In its ruling of 2 July 2010, the Federal High Court upheld the objection, concluded that the substantive application was statute-barred, and struck it out for want of jurisdiction. The court also set aside the earlier ex parte order granting leave. The interested shareholders appealed, contending that the trial court had become functus officio, that the leave application and the substantive certiorari application should be treated as one proceeding, and that the alleged wrong constituted a continuing injury.

Issues

1. Whether the Federal High Court was entitled to revisit and set aside its earlier ex parte ruling of 12 February 2010.
2. Whether the Federal High Court Rules and the Public Officers Protection Act applied so as to render the substantive application for certiorari statute-barred.
3. Whether the Court of Appeal could determine the substantive judicial-review application on its merits under section 15 of the Court of Appeal Act.

Ratio Decidendi

The Court of Appeal dismissed the appeal and affirmed the Federal High Court’s ruling. It held that the doctrine of functus officio applies principally to a final decision made on the merits after the parties have been heard, where the court has completed its adjudicatory function and has nothing further to determine. An ex parte order granting leave to seek certiorari is provisional and does not finally determine the rights of the parties. It therefore does not prevent the same court from reviewing, varying or discharging the order when the affected parties appear and raise a jurisdictional objection.

The court further held that an application for leave to apply for certiorari is distinct from the substantive application for judicial review. Leave is a preliminary procedural requirement intended to filter out frivolous or misguided claims. The substantive application is not deemed to have been filed on the date of the leave application. Under Order 34, rules 3 and 4 of the Federal High Court Rules, the substantive application must be brought within three months of the occurrence of the subject matter of the application. Since the impugned decisions and actions crystallised in the letter of 14 August 2009, the substantive motion filed on 18 February 2010 was outside the prescribed period.

The court rejected the argument that the consequences of the respondents’ decisions amounted to a continuing injury. A continuing injury means the continuation of the act constituting the legal wrong, not the continuing effects or consequences of an act that had already been completed. The removal of FinBank’s directors and the decisions communicated in the letter of 14 August 2009 were completed acts; their continuing impact did not extend the limitation period.

Court Findings

The Court of Appeal emphasised that rules of court have the force of law and must be obeyed. The appellants could not attribute the delay in filing the substantive application to the court’s failure to determine the leave application earlier. They had three days remaining after leave was granted in which to file the substantive application within time, but did not do so. No proper application for extension of time was made, and the discretionary provisions relied upon by the appellants could not cure a jurisdictional defect created by statutory limitation.

The court also held that once the substantive application was statute-barred, the Federal High Court lacked jurisdiction to entertain it. The proper order in such circumstances was to strike out the proceedings. The leave order could not sensibly remain in force because the substantive application for which it had been granted was incompetent and could not proceed.

On section 15 of the Court of Appeal Act, the court held that the provision does not confer an unlimited or original jurisdiction on the appellate court. Its exercise is conditional upon, among other matters, the lower court having legal power to adjudicate the matter, the real issue being ascertainable from the grounds of appeal, the necessary materials being available, and the interests of justice requiring final determination by the appellate court. Because the Federal High Court lacked jurisdiction over the statute-barred application, the Court of Appeal could not use section 15 to determine the merits of the judicial-review claim.

Conclusion

The appeal was found to be unmeritorious and was dismissed. The ruling of the Federal High Court delivered on 2 July 2010 was affirmed. Costs of N100,000 were awarded to the 6th respondent and separately to the 7th and 8th respondents.

Significance

The decision clarifies the procedural relationship between an application for leave to seek certiorari and the substantive judicial-review application in Nigeria. It confirms that leave does not merge with, or provide a retrospective filing date for, the substantive proceedings. It also reinforces the provisional character of ex parte orders, the court’s power to revisit such orders when jurisdiction is challenged, and the strict operation of limitation periods in judicial review. Finally, the case demonstrates that the Court of Appeal’s statutory powers cannot be used to bypass the fundamental requirement that the trial court must itself have possessed jurisdiction to entertain the original proceedings.