Igboho, Irepo Local Government Council And Community V. Shepetiri, Ifedapo Local Government Council And Community (1988)
LawGlobal-Hub Lead Judgment Report
NNAMANI, J.S.C.
On the 16th November 1987, I allowed this appeal, set aside the judgment of the Court of Appeal, Ibadan Judicial Division, and ordered that the case be remitted to the Court of Appeal, Ibadan for argument and determination of the application for Certiorari. I then indicated that I would give my reasons for this judgment today. I now give my reasons.
The immediate suit commenced in 1975 by way of a motion in the High Court of Justice Oyo in which the appellants sought the following reliefs:
“(a) an order of this Honourable Court extending the time within which the applicants are to apply for leave to apply for an order of certiorari to remove into this Honourable Court for the purpose of being quashed the finding of the Boundary Settlement Commissioner of Western State of Nigeria in Inquiry No. BSC/18/69 Igboho, Irepo District Council and Community and Shepeteri, Shaki District Council and Community which was delivered on 17th August, 1972 and confirmed by the Boundary Settlement Commission Appeal Tribunal in Suit No. BSC/2A/73 on 17th day of July, 1974; and
(b) leave of this Honourable Court to apply for the said Order of Certiorari as per the Statement herewith attached and or for such further order or orders as this Honourable Court may deem fit to make in the circumstances” .
Attached was a Statement indicating grounds on which the application was sought. There were 13 grounds but I will only set down grounds 1, 2 and 13 as they appear prominently later in these proceedings. They were:
“1. The Learned Boundary Settlement Commissioner exceeded its jurisdiction by proceeding to lay down a boundary when he has held that there was no clearly defined boundary between the two communities if indeed there was any at all, contrary to the terms of its reference
- Having upheld the submission of the learned counsel for Igboho Community that the Commission was a fact finding tribunal only, the Boundary Settlement Commissioner erred in law and misdirected himself in rejecting an administrative map of Oyo Province sought to be tendered by the Council for Igboho Community on the ground that the map was not counter-signed by the Surveyor-General and he thereby came to a wrong conclusion……………..
(13) By virtue of the above the Boundary Settlement Commissioner exceeded its jurisdiction its decision being such that no reasonable body could ever have come to”.
On the 7th of November 1975, Olatawura, J (as he then was) dismissed the application.
An appeal against this ruling to the Western State Court of Appeal, was subsequently taken by the Court of Appeal, Ibadan. That Court, on 21st September, 1981 allowed the appeal and on 4th November, 1981 granted the appellants 3 weeks extension of time within which to apply for leave to apply for an order of Certiorari.
Pursuant to this extension of time, an application dated 10th November, 1981 for the same relief – leave to apply for an order of Certiorari – on the grounds set out in the statement used on the application for an extension of time within which to bring this application was filed. It was this application that precipitated the problems that have led to this appeal. Adeyemi, J. of the Oyo High Court on 25th November 1981 dismissed it holding that in his candid and considered view the application was an abuse of legal process. He ordered as follows:
“(i) Having regard to the grounds filed and the arguments canvassed before me, I cannot, on the facts available at this stage, exercise my discretion to grant leave for an order of Certiorari and leave is hereby refused and the application is dismissed.
(ii) In the alternative this application having been made in respect of a civil action after a final judgment has been given is not properly before me and it is hereby struck out.
(iii) Alternatively also, an appeal having been filed in a court of superior jurisdiction (i.e. the Appeal Tribunal) where the legal rights of the parties in this application have been determined according to law, this present application is frivolous and an abuse of legal process and is hereby struck out”
To borrow the rather interesting language in a recent case, the ruling, set down in 9 effective pages was most scholarly and erudite. regrettably though, it was a case of brilliance overdone. The problem was not with the length of the ruling but with its content. The learned trial Judge went beyond the application before him and appeared to have dealt with an application for an order of Certiorari, which was not yet before him. After citing several authorities in respect to an application for an order of certiorari, and inspite of a portion of his ruling in which he was of the view that only grounds 1, 2 and 13 appeared to look like legal contention “cognisable in law for the purposes of an application for an order of Certiorari”, he concluded as follows:-
“I am satisfied on the facts before me at this stage, that excess of jurisdiction complained of in ground 1 has not been established, prima facie or at all. I am also satisfied that if there was any error as regards the demarcation of the boundary, it was an “error within jurisdiction” the determination of which remains effective, for the commissioner for Boundary Settlement (had) jurisdiction to be wrong as well as to be right” However, there is no error of law apparent on the face of the record in this application and leave for an order of Certiorari will not be granted on ground 1.
- I have earlier stated in respect of ground 2 that Certiorari will not issue thereon.”
The appellants appealed to the Court of Appeal. The appeal succeeded on ground 1 of the grounds of appeal which complained that-
“(1) The learned trial Judge erred in law in treating the application for leave to apply for an order of Certiorari as if it were an application for the order of Certiorari itself on merits.”
Omo, J.C.A., who wrote the lead judgment of the Court of Appeal said of that ground at p. 139 of the Record,
“There is some force in the submission of appellants’ counsel that the High Court Judge of Oyo State here (Adeyemi, J.) seems to have committed a similar (if not entirely the same) error. Instead of considering whether the grounds of appeal raised a prima facie case as set out earlier, he proceeded to deal “on the merits” with the issues of law which arise in the application (as posed by him), and which in fact relate to the grant of an order of Certiorari Itself, not for leave to apply therefore.
In that process he considered several authorities cited, inter alia … Altogether he appears to have considered, however sketchily, twenty authorities. To show quite clearly, that he went beyond the requirements of an application for leave he came to the conclusion partly cited earlier in dealing with one of the grounds of the application (Ground 13) That: “This is no recognised legal ground for an application for an order or for leave for an order of Certiorari … struck out”
But the Court of Appeal appears to have fallen into some error. After appearing to allow the appeal, the Court went on to consider the application for Certiorari. It then dismissed the appeal. The appellants then appealed to this Court. Ground 2 of the appellants’ grounds of appeal appears to bring out the gravamen of the appellants’ complaints. It reads as follows:
“(2) The Court of Appeal erred in law when it held as follows:
“Accordingly there is no basis on which this Court can exercise its jurisdiction under Section 16 of the Court of Appeal Act to order Certiorari to issue. This appeal will therefore be and is hereby dismissed.
Particulars of Error
(a) No substantive application for an order of Certiorari was filed and argued in this case upon which the Court of Appeal could have concluded that there was no basis on which it could exercise its discretion under section 16 of the Court of Appeal Act to order Certiorari to issue”
In his brief of argument, learned Senior Advocate, Chief Williams, for the Appellants, submitted that there were 4 questions for determination in the appeal namely:
(1) Whether the Court of Appeal ought not to have (1) given leave to the Appellant to apply for an order of Certiorari and (2) invited argument on whether the order of certiorari ought to be granted upon grounds 1 and 2 of the grounds of the application, having regard to its decision on grounds 1 and 2 of the grounds of appeal canvassed before it.
(2) Alternatively, whether instead of writing arguments on whether the order of certiorari ought to be issued on grounds 1 and 2 of the grounds of the application, the Court of Appeal ought not to have remitted the case to the High Court to hear such arguments
(3) Whether in view of grounds 3 to 13 of the grounds of the application as compared with grounds 3 and 4 of the grounds of appeal before the Court of Appeal, the Court of Appeal was right in treating the appeal as if the parties had the opportunity of arguing the application for Certiorari on the said grounds 3 to 13 instead of treating it as an appeal against the refusal to grant leave for it to issue on those said grounds.
(4) Whether leave to apply for an order of Certiorari in respect of grounds 3 to 13 of the grounds of the application, ought to have been granted”
In his submissions in oral argument, Chief Williams contended that the only jurisdiction the Court of Appeal had was to consider the appeal on refusal to grant leave. He said that the Court of Appeal went on to hold that looking at the grounds for the application for Certiorari, they had no substance. He submitted that the application for leave and the substantive application for the order of Certiorari should not be mixed. He referred to Regina v. I.R.C. Exparte Federation of Self Employed (1982) A,C. 617, 642 line H and Practice Direction 1982 1 W.L.R. 1375 November 2, 1982.
With regard to the invitation by his learned friend Mr. Alawode to the Court of Appeal to consider the substantive issue of certiorari, Chief Williams submitted that Mr. Alawode could not invest the Court with jurisdiction. He further submitted that learned counsel’s request that the Court should entertain and determine did not mean that the parties should not be heard.
Both Chief Fawole and Mrs. Adeniji, learned counsel to the 2nd and 1st Respondents’ respectively, had in their briefs of argument defended the approach of the Court of Appeal. In Court, however, they conceded that the 13 grounds filed in support of the application for leave to apply for certiorari were for the leave and not for Certiorari. These 13 grounds, they agreed, were not argued before the Court of Appeal before that Court concluded that the application for certiorari had no substance. They submitted, however, that after the appeal was allowed, this Court, pursuant to its powers under Section 22 of the Supreme Court Act, 1960, could entertain the substantive application.
It is clear that this appeal can be decided on a narrow compass whether the Court of Appeal ought to have limited itself to the grant of leave which it clearly felt the High Court ought not to have refused And having allowed the appeal, ought it not to have allowed argument before it reached its conclusion on Certiorari This Court having ordered that the substantive issue of grant of an order of Certiorari be remitted to the Court of Appeal for argument and determination, the less said about it in these reasons for judgment the better. Mr. Alawode, learned counsel to the appellants in the Court of Appeal, did invite the Court to inquire into the issue of certiorari. In the plea for relief before the Court of Appeal, Mr. Alawode wrote,
“The Court of Appeal is respectfully urged to make an order in terms of the reliefs sought by the appellants.
The provisions of Section 16 of the Court of Appeal adequately cover the reliefs being sought by the appellants (see Obiyan v. The Military Governor, Mid-Western State of Nigeria & Ors. (1972) 4 S.C. 248 at 254-257)”
That was the invitation, which the Court of Appeal accepted. Omo, J.C.A., in his lead judgment, set it down as one of the two reasons for going into the issue of certiorari. The learned Justice of Appeal said on the issue,
“What is more, this Court has been specifically asked by the appellants’ counsel not only to allow the appeal but also to proceed to consider and cause an order of certiorari to issue”.
Chief Williams asked the question whether Mr. Alawode could invest the Court of Appeal with jurisdiction. The answer is obviously in the negative, but I would say with respect that that is not the issue. I don’t think there is any dispute that the Court of Appeal had jurisdiction to do what it did. See Obiyan’s case. Although as I shall show hereunder if it applied to Section 22 of the Supreme Court Act, 1960, it would equally apply to Section 16 of the Federal Court of Appeal Act which is in pari materia with it. Nor can there be any doubt that the terms of section 16 of the Federal Court of Appeal Act, 1976 are so wide as to entitle the Court to proceed to examine the application for certiorari. The Section in effect invests the Court of Appeal with power in relation to an appeal before it, such as the present appeal was before it, to make any order which the lower court could have made. Indeed, it could treat the matter before it as if the suit was filed in the first instance before it. Neither the Practice Direction nor the Federation of Self Employed case to which Chief Williams made reference deprive the Court of Appeal of jurisdiction in the circumstances such as occurred in this case.
The Practice Direction of 1982 issued by Lord Lane, C.J. and Sir John Donaldson M.R. in England, which in any case has only persuasive authority in this country, was infact stating a desirable practice. I shall set it down for purposes of clarification of the point being made. It states inter alia:
“A refusal in a non-criminal cause or matter by a Divisional Court of the Queen’s Bench Division or by a single judge to grant leave to apply for judicial review is appealable to the Court of Appeal. Heretofore the practice has been for the Court of Appeal to hear the substantive application if it grants leave Reg v Industrial Injuries Commissioner, Ex-parte Amalgamated Engineering Union (1966) 2 Q.B. 21. There were, at the time of its introduction, good reasons for the practice. Those reasons no longer exist, except in the rare case where the reason for the refusal was that the Court was bound by a previous decision of the Divisional Court or a single judge. In future if, following a refusal by the Divisional Court or a single judge, the Court of Appeal grants leave to apply for judicial review, the substantive application should be made to the Divisional Court unless the Court of Appeal otherwise orders. The Court of Appeal will not normally so order unless the Court below is bound by authority or for some other reason an appeal to the Court of Appeal is inevitable” (Italics mine)
The Federation of Self-Employed and Small Businesses Ltd. (Supra) turned really on the construction of “sufficient interest” as contained in R.S.C. Order 53 rr. 1(2), 3(5) in England. – that is whether the Federation had sufficient interest to apply for judicial review. In his judgment, Lord Diplock dealt with the issue of procedure in terms which bear some relevance to the issues in this appeal. The law Lord said at page 642 of the report,
“The procedure under the new Order 53 involves two stages: (1) the application for leave to apply for judicial review and (2) if leave is granted, the hearing of the application itself … The need for leave to start proceedings for remedies in public law is not new. It applied previously to application for prerogative orders, though not to civil actions for injunctions or declarations.
Its purpose is to prevent the time of the Court being wasted by busy bodies with misguided or trivial complaints of administrative error, and to remove the uncertainty in which public officers and Authorities might be left as to Whether they could safely proceed with administrative action while proceedings for judicial review of it were actually pending even though misconceived.”
That indeed is the rationale for first considering the issue of leave to apply for judicial review. This, however, does not apply to the instant appeal as the Court of Appeal being of the view that leave to apply for leave ought to have been granted, then went on to consider the order of certiorari itself.
That the Court of Appeal fully considered the question whether the order of Certiorari should issue is beyond any contest. The Court of Appeal considered grounds 6 and 7 of the grounds of Appeal before it and agreed that the learned trial Judge was in error in first, holding in effect that the Boundary Settlement Commissioner and the Appeal Tribunal were subordinate Courts, and second, that the judgment of the Appeal Tribunal was a “final” judgment which could not be attacked by Certiorari. After briefly disposing of grounds 5 and 8 of the grounds of appeal, it finally dealt with grounds 3 and 4 in which the appellants contended that the learned trial judge erred in holding that grounds 3 to 13 of the grounds of the application were errors of fact by the Boundary Commissioner and not errors of law.
The Court of Appeal thus concluded:
“On the whole grounds therefore, it is fair to say that the trial judge was right in findings complained of in ground 4, However, whether or not these grounds will justify a grant of an order of certiorari does not only depend on whether the errors complained of are ones of fact or law. Those errors must disclose either (a) excess of jurisdiction by the Commissioner or (b) errors in law, on the face of the record vide (1) R v. Electricity Commissioner (1924) 1 K.B.171 (2) R v. Nat Bell Liquors Limited (1922) A.C.128.”
After copious references to these cases and the case of R v Northumberland Compensation Appeal Tribunal Ex parte Shaw (1952) 1 K.B.338, 346-7 and Anisminic Limited v. The Foreign Compensation Commission 1967 2 A.E.R. 986 as to the grounds for the grant of the order of Certiorari, it dcided as per Omo, J.C.A.,
“Having regard to these authorities cited, I am of the view that all the errors complained of in Ground 3 to 12 do not come under any of the two categories set out above; that is, they are neither errors going to the jurisdiction nor errors in law simpliciter. They therefore cannot support an application for an order of certiorari”.
The Court then refused to exercise its powers under Section 16 of the Federal Court of Appeal Act to order certiorari.
At the end of his submission to the Court of Appeal, Mr. Alawode had as stated earlier, invited the Court to entertain the substantive application for Certiorari. To entertain it does not of course mean that he should not be heard. It is a fundamental principle of justice and fair hearing that no man ought to be condemned without being heard. See Adigun v. A.G. of Oyo State (1987) 2 N.W.L.R. 197; The State, Ex Parte Joseph Ajidasile Olakunrin and 6 Ors. v. Oba Alaiyeluwa Ogunoye, the Olowo of Owo and 6 Ors. (1985) 5 S.C.161, 193 at 233; Edward Eiyetan v. The Nigerian Institute of Oil Palm Research (1987) 3 N.W.L.R. 48 at 59.
The main complaint of Chief Williams is that the Court of Appeal went on to decide the substantive application without taking further argument from the appellants’ counsel. It may be argued that there was really nothing more the appellant’s could have said if they had been called upon. The argument before the Court of Appeal by appellants’ counsel was quite comprehensive.
It dealt with a lot of the issues the Court of Appeal considered before refusing Certiorari. For instance, it covered the question of the jurisdiction of the Boundary Settlement Commissioner – whether it was limited to just fixing a boundary; whether the Boundary Settlement Commissioner and the Boundary Appeal Tribunal were subordinate Courts as found by the learned trial Judge; whether the learned trial Judge erred in law in holding that Certiorari could not apply to the judgment of the Appeal Tribunal which he held was a “final” judgment. He referred to grounds 1, 2 and 13 of the grounds of the application some of which I had referred to above.
In the face of such comprehensive argument, it could be said that Mr. Alawode had made all the submissions on which the Court of Appeal could properly proceed to entertain the substantive application without further argument. It is however noticeable from pages 128-130 of the record that Mr Alawode did not deal in any detail with the issues raised in grounds 3-13 of the grounds for the application for leave. After examining those grounds the Court of Appeal held that they were errors of fact and not errors of law.
Mr. Alawode therefore had no opportunity of addressing the Court of Appeal on those grounds as grounds for Certiorari before it arrived at its decision that Certiorari could not issue. In fact, Chief Williams has already submitted to this Court that the errors of the learned trial Judge on those issues were errors of law. This is now a matter to be settled at the fresh hearing of the substantive application.
The principle of fairness dictated that leave having been granted; argument should have been invited perhaps in further amplification of the submissions already made. As Chief Williams submitted to this Court, there was always the possibility that the appellants, having obtained leave to apply for an order of Certiorari, could have, with leave of Court, amended the grounds for the application.
The only issue remaining was as to the final order made by this Court. Learned counsel for the Respondents had urged this Court, even if the appellants’ appeal was allowed, to hear and exercise its powers under Section 22 of the Supreme Court Act, 1960. That section gives this Court jurisdiction “over the whole proceedings as if the proceedings had been instituted and prosecuted in the Supreme Court as a Court of first instance and may rehear the case in whole or in part” In Obiyan v. The Military Governor of Mid-Western State of Nigeria and Ors (1972) 1 All N.L.R. (Part 1) 422 at 427 where the relief was –
“That leave be granted to the applicant to bring an application for an order of certiorari and that the Supreme Court do entertain and determine the application.”
This Court after adverting to the undoubted wide powers of this Court under Section 22 of the Supreme Court Act, 1960, held that where this Court after hearing the appeal, finds that a case was indeed made out for the granting of an order of Certiorari it could entertain and determine the application itself.
Having allowed the appeal in this case to the effect that leave to apply for an order of Certiorari ought to have been granted, and further that the Court of Appeal ought not to have determined the substantive application without hearing the appellants, it was clearly open to this Court to take the substantive application. It seemed to me, however, that this being a matter which the Court of Appeal had not as it were decided properly on its merits, that Court ought to have another opportunity to hear argument and determine the issues.
Besides, in my view the wide statutory powers conferred by Section 22 of the Supreme Court Act must not be used in any manner, which would under-mine the Constitutional relationship of the Court of Appeal to this Court. This is that appeals lie under Section 213 of the Constitution from decisions of the Court of Appeal to this Court, and that except in exceptional circumstances in respect of which rules have been made, this Court will not entertain a matter in respect of which argument has not been taken and a decision reached by the Court of Appeal.
There is abundant sense in this, for a court of last resort such as this Court, cannot but benefit from the mature views of the Intermediate Court on any issue which is to come ultimately before it. It was for these reasons that I allowed the appeal and made the orders Hereinbefore referred to.
M. L. UWAIS, J.S.C.: This appeal was heard on the 16th November 1987 and it was allowed with N300.00 costs to the appellants. The case was remitted to the Court of Appeal for the application for grant of Certiorari to be heard. Our reasons for the judgment were reserved till today. The following are my reasons.
The issue for determination in the appeal is simple. It is what should the Court of Appeal do in an appeal from refusal to grant leave to apply for an order of certiorari. There are two alternatives open to the Court of Appeal if it should allow the appeal, to wit, either –
- To grant the application for leave to apply for the order of certiorari and remit the case to the High Court as court of first instance for the second stage of the proceedings, namely application for the order for certiorari to take place or
- To grant the application for leave to apply for the order of certiorari and hear the application for the order for certiorari (as it has jurisdiction to do) – see Obiyan v. Military Governor of Mid-West State (1972)1 All N.L.R. (Part 1) 422 at pp.429 and 430).
In the present appeal, the Court of Appeal adopted the second option, but went wrong in not inviting all the parties to the application for order for certiorari to appear before it and address it.
The invitation to all the parties was necessary because, although the application for leave to apply for certiorari is made ex-parte; the application for an order for certiorari is of necessity on notice. So that when the Court of Appeal heard the appeal against the refusal to grant leave on the application for leave to apply for order for certiorari, it was dealing with the application ex-parte.
And when it decided to hear the application for the order for certiorari to be granted, it was dealing with the application which should have been on notice. Hence the need to give all the parties including the appellants the opportunity to be heard and for the respondents to the application to file any counter-affidavit that they might deem necessary. This is what they were deprived.
It is for these and the fuller reasons contained in the reason of judgment read by my learned brother Nnamani, J.S.C. – the draft of which I had a preview and I entirely agree with – that I allowed the appeal on the 16th November, 1987 and agreed that the case be remitted to the Court of Appeal for the application on notice to be properly heard.
SC.126/1986
