Prof. Louis Cheluno Nwaoboshi & Ors V. The Military Governor Of Delta State & Ors (2003)

LAWGLOBAL HUB Lead Judgment Report

O. UWAIFO, J.S.C.

The Delta State Government approved a chieftancy declaration stating the customary law regulating succession to the title of Obuzor of Ibusa as per legal Notices Nos. 6, 7, 8 and 9 of 1995 published in the Delta State of Nigeria extra-ordinary gazette No. 28 vol. 5 of 21 June, 1995. Persons who called themselves kingmakers wrote to the Government requesting that the selection and appointment of one professor Louis Cheluno Nwaoboshi (now the 1st appellant) be approved and the staff of office presented to him.

A letter dated 20th June, 1995 from the Government to the chairman, kingmakers committee appeared to have conveyed the nod given by the military administrator of the State to the selection of professor Nwaoboshi as the Obuzor of Ibusa. The letter which seemed to have been on the directive of the military administrator proceeded to say in paragraph 2 and 3 as follows:

“2 As regards the presentation of staff of office, I wish to inform you that this is normally done after the traditional ruler has been installed in accordance with the Custom and tradition of the people. Accordingly you may wish to install professor Louis Cheluno Nwaoboshi as the Obuzor of Ibusa and thereafter re-apply for the presentation of staff of office.

3. Once more, accept our congratulations on the appointment of the first Obuzor of Ibusa.”

The declaration made under section 8 of the Traditional Rulers and Chief Edict, 1979 of the defunct Bendel State, applicable in Delta State, stated that there are three ruling houses (Otus) in Ibusa clan, which, in order of seniority, are (i) Otu Odogwu ruling house, (ii) Otu Uwolo ruling house and (iii) Otu lyase ruling house. It also stated the three groupings of villages attached to each ruling house and the succession shall rotate among the three ruling houses. Furthermore, the method of selection of the Obuzor of Ibusa was copiously narrated. The 1st appellant belongs to Otu Odogwu ruling house.

In July, 1995, one Obi (professor) Chike Onwuachi (now applicant/respondent) commenced certiorari proceedings in which he stated in paragraphs 1 and 2 of the affidavit in support as follows:

“1. That I am the applicant in the above matter

2. That my application is for an order of certiorari directed to the respondents namely:
3. Professor L.O. Nwaoboshi
4. C.O. Nwaze, Odogwu of Ibusa
5. W.O. Ikolodo, Uwolo of Ibusa
6. J.I.Okonicha, lyase of Ibusa
7. The Military Administrator Delta State
8. Attorney-General & Commissioner for Justice, Delta State
9. Chief Augustine Izagbo.”

The purpose was to bring up the said declaration stating the customary law regulating succession to the title of Obuzor of Ibusa, Delta State as contained in Delta State legal Notice No.6 of 1995 published in the aforementioned gazette to the court to be quashed. Other reliefs also sought were a declaratory order, permanent injunction, and stay of proceedings. Notwithstanding the inclusion of these other reliefs, it is not in dispute that the action was essentially commenced by the common law prerogative writ of certiorari.

On 20th December, 1995, Odita J, sitting in the High Court holden at Asaba, in a rather lengthy ruling, held that the Executive Council of Delta State Government acted without jurisdiction in making the declaration because it failed to comply with the Traditional Rulers and Chiefs Edict, 1979. He therefore made an order quashing the said declaration stating the customary law regulating succession to the title of Obuzor of Ibusa. He also granted the declaration and the perpetual injunction sought in the writ of certiorari.

The 1st – 4th and 7th respondents to that application for certiorari appealed to the Court of Appeal on six grounds of appeal principally raising issues challenging the propriety of the certiorari order to quash what they regarded as a legislative or subsidiary legislative act. Other issues canvassed by the appellants related to the locus standi of the applicant and ouster of jurisdiction created by decree No. 13 of 1984. I find it appropriate at this stage to remark that this appeal was not properly titled as an action by writ of certiorari should. The parties were erroneously stated thus:

1. Prof. L.O. Nwaoboshi )
2. C. O. Nwanze, Odogwu of Ibusa )
3. W.O. Ikolodo, Nwokolo of lbusa ) ….. appellants
4. J.I. Okonicha, lyase of Ibusa )
5. Chief Augustine Izagbo )

AND

1. The State …….. ) respondents
2. The Military Administrator of Delta State )
3. Attorney-General & Commissioner )
4. Obi (Prof.) Chike Onwuachi )

Not to have regarded the state other than as a symbolic party is misleading. The state in certiorari proceedings represents primarily the authority on whose prerogative the writ of certiorari proceeded to issue. That is what makes it a prerogative writ. The State is not expected to be represented as if a party litigant, and has no real part to play other than as the symbol of authority. I had therefore to state the parties in the proper manner of certiorari proceedings with the title the appeal now bears.

On 14th July, 1998, in a majority decision by Akintan and Rowland, JJCA, Achike, JCA dissenting, the appeal was dismissed. Akintan, JCA observed inter alia:

“it is now settled law that the writs of certiorari and prohibitions may issue where any body 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 legal authority… It is not in doubt that the Delta State Executive Council is made up of a body of persons having legal authority to determine questions affecting the rights of subjects within its area of jurisdiction, that is, Delta State of Nigeria. The body is also charged with the duty to act judicially.”

The learned Justice did not go further to support or justify the assertion that the Delta State Executive Council is a body which, in the

performance of its function, should act judicially. Curiously enough, the learned justice acknowledged, at least impliedly, the State Executive Council as a legislative body which could make and amend an order (a subsidiary legislation), when he said:

“What the Executive Council did in respect of D.S.L.N. No.7 of 1995 was that it amended the of prescribed authority Order 1979 by deleting ‘Senior Diokpa of Ibusa’ and substituting ‘Obuzor of Ibusa’ in its place. There is no doubt that it has the power under section 21 of the law under which it claimed to act, to amend an order it previously made.”

The dissenting judgment of Achike, JCA on this particular issue of the appropriateness of certiorari in this case captures the salient point which seemed to have eluded the learned justice who gave the majority judgment. I refer to a passage of that judgment which reads as follows:

“It is worthy of note that each of D.S.L.N. Nos. 6, 7, 8 and 9 made by the executive council prefaces the order made as having been done in exercise of power conferred on the executive council by express provisions of specific sections of the Traditional Ruler and Chiefs Edict, 1999. It may well be that the purported exercise was irregularly done in the sense that these violated material steps or requirements necessary for their validity. But that is not the point posed under this issue. The question posed under this issue really is whether the lower court could question or quash such undoubted legislative acts of the executive council by certiorari proceedings.”

That is the relevant question, which Achike, JCA unmistakably identified. It leads to a proper resolution of this appeal if answered correctly, without in any way touching on whatever merit the applicant/respondent may feel his grievance has. It is that very answer the appellants seek in this appeal from two of the three issues they have raised for determination as follows:

“(i) Were the learned Justices right in holding that a writ of certiorari may issue against the Delta State Executive Council in its legislative or administrative function in this case

(ii) Were the learned Justices right in holding that in making subsidiary legislation published as Delta State Legal Notices Nos. 6, 7, 8 and 9 of 1995, the Delta State Executive Council (a) was either determining or adjudicating on any question or (b) was required to act judicially

(iii) Were the learned Justices right in law in holding that Delta State Legal Notices Nos. 6, 7, 8 and 9 of 1995 were not acts done or purported to have been done within the meaning and intendment of Decree No. 13 of 1984”

Issues (i) and (ii) may conveniently be taken together. It is elementary that certiorari is a prerogative writ of common law origin available to the High Court in the exercise of its supervisory control over an inferior tribunal or court to ensure that it does not exceed its jurisdiction or commit irregularities making its decision bad on its face: see R. v. District Officer for Kutia People: ex Parte Eti Atem (1961) All NLR 51 at 56 per Ademola CJF. The writ is issued in order that the issuing court may bring the proceedings of the inferior tribunal or court before it for inspection and if there is due cause disclosed, to quash them. It lies only against bodies exercising judicial or quasi-judicial authority and in respect of acts performed by them in that capacity. It does not lie against executive or legislative acts, or mere administrative acts. Learned Senior Advocate for the appellants has canvassed argument along the lines of the above statements of principle, relying on Amaka v. Lt. Governor Western Region & Anr (1956) SCNLR 122 which seems, incidentally, to be most relevant to the present case. In that case the proceeding which was sought to be removed by certiorari was an order made under the Native Authority Ordinance by the Lieut. Governor of Western Region declaring that a recommendation that the native law and custom of Owo be modified by the abolition of the Ojomo title, submitted to by the Owo District Native Authority acting under a section of the ordinance, should be the Native Law and Custom of the area concerned. The Order in question was published in the Official Gazette of the Western Region as Public Notice No. 135 on 22 October, 1953. The High Court declined to make the order of certiorari. On appeal, the Federal Supreme Court upheld the High Court saying that the writ of certiorari does not lie to remove mere ministerial, administrative or executive acts. Foster-Sutton FCJ, delivering the judgment of the court observed inter alia at page 123-124:

“Certiorari, as has often been pointed out, is a remedy of a very special character, and it only lies to remove judicial acts. Native Law and Custom is part of the law of this country, and the legislature in its wisdom has, by subsections (1) and (2) of section 30 of the Ordinance, conferred upon a Native Authority the power, firstly, to declare what in its opinion is the native law and custom applying throughout the area of its authority, and secondly, to recommend a modification of any native law or custom in the area of its authority, ………………..

The provisions I have referred to permit the authority mentioned to amend one branch of the law prevailing in the area of their authority, an act which, in my opinion cannot be said to be a judicial one, although the legislature wisely laid down certain matters which the Lieut. Governor must be satisfied upon before, so to speak, confirming the act of the Native Authority; but I have no difficulty in concluding that this does not alter the nature of the functions exercised. They are, so it seems to me, clearly administrative or executive.”

In the present case what was brought by writ of certiorari for the purpose of being quashed and which indeed the High Court quashed, and was upheld by the court below, was a declaration stating the customary law regulating succession to the title of Obuzor of Ibusa. The declaration was made under the Traditional Rulers and Chiefs Edict, 1979 as contained in the Legal Notice No.6 of Delta State followed by consequential orders in Legal Notices Nos. 7,8 and 9 all of 1995. It was then published in the Gazette No. 28 vol. 5 dated 21 June, 1995 of the State. The process by which the declaration in question was made was without doubt, as I understand it, legislative. The declaration has the force of law and qualifies as a subsidiary legislation, since it derived its existence from the said Edict of 1979, and was made by the appropriate authority: see Ayoade v. Military Governor Ogun State (1993) 8 NWLR (Pt.309) 111; Fasade & Ors. v. Babalola & Anr SC 190/1997 delivered on 25 April, 2003 (unreported).

No legislative or executive act is subject to the controlling jurisdiction of the writ of certiorari on the ground that it was not an act performed or expected to be performed judicially. It will be a contradiction in terms and offensive to the idea underlying the doctrine of separation of powers to hold otherwise since certiorari lies against only judicial or quasi-judicial acts. And a legislative or executive act cannot by rational thinking come within acts which are to be performed judicially: see Obiyan v. The Military Governor of Midwestern State (1972) NSCC 290; (1972) 4 SC 248, (1972) 1 All NLR (Pt.1) 422. I will, however, like to refer to R. v. Governor-in Council, Western Region, ex parte Laniyan Ojo (1962) 1 All NLR (Pt.1) 147. In that case, the Governor-in-Council gave approval for the appointment of one Lawani Kehinde as the Bale of Lanlate, Ibarapa District Council and published in the Gazette. An application was brought for an order of certiorari against the Governor-in Council for the purpose of quashing the approval. The trial Judge refused the application on the ground of lack of jurisdiction because section 3 of the Administration of Justice (Crown Proceedings) Law, 1959 provided that the High Court shall not have jurisdiction to issue an order of mandamus, an order of prohibition or an order of certiorari to the Governor or to the Governor-in-Council in respect of the approval or setting aside of the appointment of any chief etc. The appeal against that refusal came before the Federal Supreme Court.

The issues the Federal Supreme Court had to decide were confined to the grounds of appeal and were also strictly in line with the grounds upon which the certiorari was sought at the trial court. They had nothing to do with whether a writ of certiorari could lie against an executive act under common law. Although the appeal was dismissed, it was without any consideration as to whether or not the Governor-in-Council was expected to act judicially. That case completely stands on its own, deciding nothing about the functionality of certiorari, or as to the appropriateness of seeking it as a remedy upon the facts and circumstances of the case. Whereas, in Amaka v. Lt. Governor Western Region (supra), R. v. District officer: ex parte Eti Atem (supra) and Obiyan v. The Military Governor of Midwestern State (supra), the central condition recognised by them for resorting to certiorari is that the body against whom it is sought must have a duty to act judicially. In R. v. Electricity Commissioners (1924) 1 K.B. 171 at 204-205, Atkin L.J., giving an overview of the functions of the writs of certiorari and prohibition, said:

“The matter comes before us upon rules for writs of prohibition and certiorari which have been discharged by the divisional court. But writs are of great antiquity, forming part of the process by which the King’s Courts restrained courts of inferior jurisdiction from exceeding their powers. Prohibition restrains the tribunal from proceeding further in excess of jurisdiction; certiorari requires the record or the order of the court to be sent up to the King’s Bench Division, to have its legality inquired into, and, if necessary, to have the order quashed. It is to be noted that both writs deal with questions of excessive jurisdiction, and doubtless in their origin dealt almost exclusively with the jurisdiction of what is described in ordinary parlance as a court of justice. But the operation of the writs has extended to control the proceedings of bodies which do not claim to be, and would be recognised as, courts of justice. Wherever any body 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 legal authority they are subject to the controlling jurisdiction of the King’s Bench Division exercised in these writs.”

As it relates directly to legislative acts, I find the authority of R. v. Legislative Committee of the Church Assembly (1928) 1 KB 411 apt and useful. There, both writs of prohibition and certiorari were sought. The writ of prohibition was sought to prohibit the Legislative Committee of the Church Assembly, under the Church of England Assembly (powers) Act, 1919 from further proceeding with the matter of a certain measure entitled, “Prayer Book Measure, 1927”, It was also sought that a writ of certiorari should issue, directed to the Church of Assembly itself and to the Legislative Committee of the Church Assembly to remove into the High Court the records of the prayer book measure, 1927. The main grounds were (1) that the Prayer Book Measure, 1927 was not a Measure passed by the Church Assembly within the meaning of section 3(1) of the Act of 1919 and (2) that that measure was not passed by the Church Assembly in accordance with the requirements of section 14(1) of the Constitution of the Church inasmuch as it was never debated by each house separately. In reaction to the application for the writs, Lord Hewart, CJ, said at page 416:

“The opening words of the Constitution, recognized and given the force of law by the statute, are these:

‘There shall be a National Assembly of the Church of England… to deliberate on all matters concerning the church of England, and to make provision in respect thereof’. As part of the appropriate machinery, it is required that the Assembly shall appoint a Legislative Committee, including members of all three houses, to whom any measure which it is desired to pass into law shall be referred; and it is provided further that the legislative committee shall thereupon take such action as may be authorised by statute in order that such measure may become law. In other words, the topic is the machinery, and the internal economy of a deliberative Assembly, the function of which, so far as the present matter is concerned, is to deal with the earlier stages of that which, if the whole programme is carried out to the end, may become a statute. That does not seem to me to be a judicial body. It seems to me to be a deliberative or legislative body, and I do not think that either the Assembly itself or its legislative committee is a body of the kind to which it would be appropriate to issue a writ, whether of prohibition or of certiorari.’”

I think enough has been said to show that it was inappropriate to order certiorari to control the Governor-in-Council (i.e. the Military Administrator) of Delta State acting in a legislative or executive capacity. Certiorari can do no more than to quash a decision in a proper case. The other reliefs sought in the writ of certiorari here were upon a misconception of the scope and use of certiorari in obtaining a remedy.

It is unnecessary to consider the third issue raised in this appeal since the inevitable conclusion is that the action was incompetent. This appeal accordingly succeeds and is allowed. The majority judgment of the Court of Appeal is set aside together with the order for costs made by that court and High Court. The action is struck out. I award N2,000.00 as costs in the trial court, N5,000.00

as costs in the Court of Appeal and N10,000.00 as costs in this court against the applicant/respondent in favour of the appellants.

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SC.73/1999