Igboho, Irepo Local Government Council And Community V. Shepetiri, Ifedapo Local Government Council And Community (1988)

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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

2. 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”