Sanni Akande V Sanusi Araoye And Anor (1968)

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BRETT,J.S.C.

In this case the writ of summons contained four heads of claim. The first two were:-

“(1)A declaration that the judgment given in favour of the defendant by Mr. E. O. Enahoro on 18th November, 1960, under the Inter Tribal Boundaries Settlements Law or Ordinance is illegal, unconstitutional and/or contrary to natural justice;

(2) an order setting aside the said decision.”

The third was for a declaration of title and the fourth for an injunction. Paragraph 15 of the Statement of Claim elaborated the first head of the claim as follows:-

“15.The plaintiffs will contend at the trial of the action that the judgment given by the said E. O. Enahoro under the Inter-Tribal Boundaries Settlement Ordinance is illegal, unconstitutional, and contrary to natural justice and should be set aside because:-

(I) the said E. O. Enahoro having been previously involved in the dispute as an administrative officer and having previously expressed very strong and definite views on the merits of the matter in dispute, it was illegal and improper to have appointed him to adjudicate upon the said dispute.

(ii) the said E. O. Enahoro was fully aware that he was expected to give a decision substantially in accord with views previously expressed by him.

(iii) the appointment of Mr. Enahoro was not made in manner as to se-cure his independence and impartiality.”

In the Western High Court the claim was dismissed on the first two heads of the claim and non-suited on the third and fourth. The plaintiff appealed to this court and on the 22nd December, 1967, the court gave a judgment by which it granted the declaration sought under the first head and upheld the judgment of non-suit on the third and fourth heads. As regards the first two heads, the plaintiff’s counsel seemed to be of the opinion that a declaration would give the plaintiff all he required, and did not address the court at length on the correctness of the trial judge’s view that a decision given under the Inter-Tribal Boundaries Settlement Law could only be set aside by an order for certiorari. As a result, the court set aside the judgment of the High Court dismissing the second head of the claim and stayed the claim, with liberty to the plaintiff to apply for a further order. On the 1st April, 1966, the plaintiff filed a motion pursuant to the liberty to apply, asking that the decision under the Inter-Tribal Boundaries Settlement Law be set aside.

There is no longer any dispute as to the merits of the case. Counsel for the first defendant conceded that he could not resist an application for certiorari and that if the court had a discretion it should be exercised in favour of granting the present application. The question is purely one of procedure and may be framed thus – Where it is proved that a decision has been given in contravention of one of the provisions of chapter 3 (ss. 18-33) of the Constitution of the Federation, and the decision while not open to question in the appellate jurisdiction of a High Court, is of a kind that makes it liable to be quashed by an order of certiorari, is it open to the court to set it aside in an action commenced by writ of summons, or is an order of certiorari the exclusive remedy?

Section 32 of the Constitution reads:-

“32(1) Any person who alleges that any of the provisions of this Chapter has been contravened in any territory in relation to him may apply to the High Court of that territory for redress.

(2) Subject to the provisions of section 115 of this constitutionn the High Court of a territory shall have original jurisdiction to hear and determine any application made to it in pursuance of this section and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing, or securing the enforcement, within that territory of any rights to which the person who makes the application may be entitled under this Chapter.

(3) The Chief Justice of Nigeria may with the consent of the Federal Executive Council by order make provision with respect to the practice and procedure of the High Courts of the territories for the purposes of this section and may confer upon those courts such powers in addition to those conferred by this section as may appear to be necessary or desirable for the purpose of enabling those courts more effectively to exercise the jurisdiction conferred upon them by this section.”

The first and second heads of the present claim were not expressly brought in pursuance of section 32 of the Constitution, but the declaration asked for was to the effect that the decision complained of was, among other things, unconstitutional and paragraph 15(iii) of the Statement of Claim reproduced some of the words of section 22(1) of the Constitution which reads, with the proviso omitted:-

“22.(1) In the determination of his civil rights and obligations a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality………:’

We regard the application as having been brought in pursuance of section 32. No provision has been made under section 32(3) with respect to the practice and procedure, or conferring additional powers, but the present suit was instituted in accordance with the ordinary procedure of the High Court, and the absence of provision for a special procedure cannot preclude the High Court from exercising the powers conferred by the Constitution: Fajinmi v. Speaker, Western House of Assembly [1962] 1 All N.L.R. 205.

The power which the High Court was asked to exercise in this case is conferred by the express words of the Constitution. In providing that the High Court “may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing, or securing the enforcement” of one of the fundamental rights section 32 (2) is un-questionably conferring power to set aside any decision given in contravention of one of the rights, whether such power existed under the previous jurisdiction of a High Court or not, and the only matter remaining to be decided is whether it is appropriate that the power should be exercised in an action commenced by writ of summons where certiorari would be available.

The defendants have advanced no reasons why the court should hold that certiorari, when available, is the only appropriate way of setting aside a decision. In its present form certiorari has several defects as a means for the enforcement of the fundamental rights. It is only available to change a judicial or quasi-judicial decision: the court’s powers of relief are limited to quashing the decision and do not extend to granting an injunction or other order for the prevention of further infringement of a right; and the procedure is ill-adapted for an inquiry into disputed issues of fact. Where certiorari would not lie it seems clear that relief may be sought in any ordinary action and, without prejudice to the availability of certiorari or other forms of procedure in cases to which they have always applied, the balance of convenience seems overwhelmingly in favour of regarding an order made in an action on a writ of summons as an appropriate way of setting aside any decision that offends against chapter 3 of the Constitution. Where the facts are complicated, and in particular where a breach of one of the fundamental rights is defended as being made in pursuance of a law which is reasonably justifiable in a democratic society in the interest of defence, public safety, public security, or public health, or on one of the other recognised grounds of justification, it may be specially appropriate that the real issues between the parties should be defined by means of pleadings in an action, and determined on evidence taken in the ordinary way.

For these reasons we hold that it is open to the court to make the order sought, but to prevent any misunderstanding about what we have decided there are two points which we would emphasise again. The first is that we are only deciding that in this case there were alternative remedies open to the plaintiff, not that an order of certiorari is no longer an available remedy where a breach of chapter 3 of the Constitution is proved. The second is that our decision is restricted to matters which lie within the extended supervisory jurisdiction of a High Court, and has no application to matters within its appellate jurisdiction.

On the hearing of the motion an order was made substituting Sanni Akande as representative plaintiff for Samalu Oyelade, who has died, on Chief Williams’ undertaking that a further affidavit would be filed before judgment was given. The motion to substitute had been supported by a single affidavit, sworn to by Sanni Akande himself, and where a fresh representative plaintiff is to be substituted we consider that an affidavit should be sworn to by at least one of the people to be represented and placed before the court. This has now been done, and the order of the court is that the decision in the Ifon-Ilobu boundary dispute given by Mr. E. O. Enahoro on the 18th November, 1960, under the Inter-Tribal Boundaries Settlement Law is set aside.

Decision in the Ifon-Ilobu boundary dispute set aside.

Other Citation: (1968) LCN/1589(SC)