Sanni Akande V Sanusi Araoye And Anor (1968)

LawGlobal-Hub Lead Judgment Report

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.