Prohibition order is available against a person acting in judicial or quasi-judicial capacity – Part 2
In the Court of Appeal Enugu Judicial Division
Holden at Enugu
On Wednesday 9th day of December, 2015
Before their Lordships:
HELEN MORONKEJI OGUNWUMIJU – JUSTICE COURT OF APPEAL
TOM SHAIBU YAKUBU -JUSTICE COURT OF APPEAL
RITA NOSAKHARE PEMU – JUSTICE COURT OF APPEAL CA / E/ 162 / 08
BARR. BASIL IGWIKE & ORS
MR. DUBEM OBAZE & ORS
The learned trial Judge reasoned as follows on Pg 333-334 of the Record:
“1st Respondent has not breached any rules of natural justice. There is no error of law on the face of any records. The decision to call for a referendum was not obtained by fraud.
After considering the motion, the accompanying processes, the affidavits and the addresses of counsel, I am satisfied that the 1st Respondent against whom this applicant is directed has no done anything in a manner to deserve an/the order of prohibition being made to stop him from carrying out this administrative functions”.
It is common ground among the parties that an order of prohibition is available only against a person or body acting in a judicial or quasi-judicial capacity. Appellants concede this in Paragraph 4.0 and 4.01 of their brief.
The prerogative orders of mandamus, certiorari and prohibition are discretionary common law remedies which a High Court may grant in the exercise of its power of judicial review over proceedings and decisions of inferior Tribunal and courts or review of governmental duties and powers. They are public law remedies which can be sought against judicial, administrative officers, or public bodies. It appears to me in the case under review that there has been a misconception as regards when the writ of certiorari will lie and when a writ of prohibition will lie.
Atkin L.J. in R v. Electricity Commissioners (1924) 1KB 171, 204 – 295 opined while explaining the scope of the application of both prerogative writs and when they may issue only as:
“Wherever anybody of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially act in excess of their jurisdiction…”
A prerogative writ is a writ (official order) directing the behavior of another arm of government, such as an agency, official, or other court. It was originally available only to the Crown under English law, and reflected the discretionary prerogative and extraordinary power of the monarch. The term may be considered antiquated in some countries and the traditional six compromising writs may also be identified as an extraordinary writ or extraordinary remedy.
Six writs are traditionally classified as prerogatives writs:
Certiorari an order by a higher court directing a lower court to send the record in a given case for review
Habeas corpus demands that a prisoner be taken before the court to determine whether there is lawful authority to detain the person;
Mandamus an order issued by higher court to compel or to direct a lower court or a government officer to perform mandatory duties correctly;
Prohibition directing a subordinate to stop doing something the law prohibits;
Procedendo sends a case from an appellate court to a lower court with an order to proceed to judgment.
Quo warranto requiring a person to show by what authority they exercise a power.
The prerogative writs were a means by which the Crown, through its courts, exercised control over inferior courts or public authorities throughout the kingdom. The writs were issued in the name of the Crown, who is the nominal plaintiff, on behalf of the applicant. The review power was limited however. Purely ministerial decisions which did not have a judicial aspect could not be reviewed and an issue could be determined only for ultra vires. There was no new trial. A writ of prohibition is a writ directing a subordinate to stop doing something the law prohibits. In practice, the Court directs the Clerk to issue the Writ, and directs the Sheriff to serve it on the subordinate, and the Clerk prepares the Writ and gives it to the Sheriff, who serves it. This writ is normally issued by a superior court to the lower court asking it not to proceed with a case which does not fall under its jurisdiction. When an agency of an official body is the target of the writ of Prohibition, the Writ is directing to the official body over which the court has direct jurisdiction, ordering the official body to cause the agency to desist.
The prerogative writ of prohibition cannot be issued to review a purely administrative, executive, ministerial or legislative act. See Amaka v. LT Governor Western Region (1956)1 FSC 57, R v. Ondo D.C Ex Part Akinbote (1960)5 FSC 52; Arzika v. Gov, Northern Region (1961) All NLR 329, Onyeanusi v. tribunal (2002) 5 SCNJ 226, Magit v. University of Agric, Makurdi (2005) 12 (SCNJ) 203.
The judicial attitude to this discretionary power to issue the prerogative writ of prohibition had always been that by its very nature, prohibition is used where the complaint is excess of, or lack of jurisdiction and to prevent a breach of natural justice particularly when an adjudicator has pecuniary or proprietary interest in the subject matter he is to preside on. In Nwaoboshi v. Milard Delta State (2003) 5 SCNJ, the Supreme Court overturned the decision of the High Court and Court of Appeal which had granted leave to issue a writ of certiorari against a legislative act of the State of Military Administrator, a chieftaincy Declaration in respect of the title of Obuzor of Ibusa.
The quarrel in this case is whether or not the name of the “Nkerehi” community be changed to “Umuchukwu”. There is consensus from both sides that the 1st Respondent tried to mediate to find a common position between the opposing sides of the argument. I cannot agree with learned Appellants counsel that the mediation of the 1st respondent amounted to quasi judicial proceedings in as much as he did not hear any evidence in prosecution or defence of a claim in which he was obliged to take a decision. The 1st Respondent was only a Special Adviser to the State Governor holding office at the pleasure of the Governor pursuant to S. 196 of the 1999 Constitution. He could not unilaterally change the name of a community but decided on a referendum to be guided in recommending a subsequent ministerial action by the Governor. The published intention to conduct a referendum after mediating between the opposing parties cannot, I reiterate, amount to a decision taken “on the materials before him, between an allegation and a defence” within the scenario envisaged by the Supreme Court in Loloda Hart v. Military Governor Rivers State (1976)11 SC 211 where the court held inter alia:
“It is enough if it (ie the body sought to be prohibited) is exercising judicial function in the sense that it has to decide on materials before it, between an allegation and a defence”
Inspite of the allegations of fraud made against the 1st Respondent in Paragraph 4.03 of the Appellant brief, no clear evidence of fraud or manipulation or deceit in arriving at the decision to conduct the referendum was contained in any of the affidavits sworn to by the Appellants.
I must come to the same conclusion as the learned trial judge who held at page 333 of the record as follows:
“1st Respondent is not an adjudicating body because it is not performing a judicial function”.
I must not conclude this judgment without stating some obvious truths. The judiciary as an institution is the final arbitrator of the limits of the rights and duties of the rulers and the ruled. It can thus overrule other arms of government by its powers of judicial review. However, the courts have been careful to limit judicial review of the activities of other arms of government to ensuring due process as it must as other citizenry have faith in the acts of Ministers and Parliament.
The position taken in previous judgments of this court and the Supreme Court has changed somewhat in recent years. The courts now enforce the parameters for the exercise of discretion by ministerial authority to ensure compliance with the rules of natural justice.
When therefore, a public functionary or agency invested with the power to determine a certain crucial public issue is about to execute a decision or plan to the detriment of a citizen in breach of its power or law, the court shall be moved for an order or prohibition to restrain it from putting the decision or plan into effect as it is in the instant case. The court has held in several cases that the remedy of prohibition is available. See Shugaba Abdulraham Darman v. The Minister of Internal Affairs & Ors (1981)1 NCLR, where the minister of was prohibited and restrained from deporting the applicant out of Nigeria.
Also in Dr. Nnamdi Azikiwe V FEDECO & Ors in Re Dr. Olu. Onogoruwa (1979) 3 LRN 286, the court made an order of prohibition against the Lagos State Police Commissioner for arresting the applicant Again in Nebedum V Labisi (2000) FWLR (pt 25) 1697 at 1705. Paras B-C ratio 4 and 5, the Court of Appeal held that the remedy of certiorari and prohibition are available where anybody or person having legal authority to determine question affecting the rights of subjects and having the duty to act judicially, acts in excess of their authority. It is also available where the rules of natural justice are breached or there is collusion or fraud.
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