Lamidi Adebona Adegbenro & Anor V. Suara Aborisade Akintilo & Ors (2009)

LawGlobal-Hub Lead Judgment Report

MODUPE FASANMI, J.C.A.

This is an appeal against the ruling of Oyo State High Court of Justice, Ibadan Judicial Division delivered on the 28th of May, 2003.

The Appellants sought relief against the refusal of the lower court to grant an Order of certiorari against the decision of the 3rd and 4th Respondents in appointing the 1st Respondent as Baale Ajia Ona Ara Local Government, Ibadan, Oyo State. The brief facts of the case are that the Appellants with the 1st & 2nd Respondents contested for appointment as Baale Ajia Ona Ara Local Government, Ibadan Oyo State before the 3rd & 4th Respondents. The 1st Respondent was appointed the Baale of Ajia by the 3rd & 4th Respondents after the respective applications of the parties have been considered. The Appellants and the 2nd Respondent separately appealed against the appointment of the 1st Respondent as Baale of Ajia to the Commissioner for Local Government and Chieftaincy Affairs. When the Hon. Commissioner did not act in good time on the respective appeals of the Appellants and the 2nd Respondent, each of them brought separate applications. The Appellants brought application for certiorari while the 2nd Respondent’s brought application for mandamus. The application of the 2nd Respondent for mandamus was first heard by Honourable Justice Oyelaran and it was granted Appellants application for certiorari was later heard by Honourable Justice Oladeinde and she refused it. The ruling is now the subject matter of this appeal. The learned trial judge heard the application and held in the penultimate paragraphs of her ruling that:

“There is nothing before me to show that the Commissioner refused to look into the appeal of the Applicants or that he will not look into the appeal: The complaint of the Applicants is that he has delayed in looking into the appeal. The best the Applicant can do in this situation is to bring an application for an order of mandamus to compel the Commissioner to perform his duty.

Having not waited for the consideration of his appeal by the Commissioner or brought an application for an order of mandamus to compel him to perform his duty, the Applicant has not exhausted the remedy available to him before bringing this application for judicial review by way of certiorari. The applicant has therefore not made a case for the grant of the reliefs sought in his application for judicial review and I so hold. The application is hereby dismissed.”

Being aggrieved by the decision of the learned trial judge, the Appellants lodged an appeal to this Court. Briefs were filed and exchanged. At the hearing of the appeal, the Appellants adopted and relied on the arguments in the Appellants brief filed on 22/11/07 but deemed properly filed and served on 6th Feb. 08, wherein the Appellants formulated four issues for determination as follows:

(1) Whether the Applicants/Appellants had made a prima facie case for the grant of an order of certiorari to remove the said proceedings of Olubadan in council into the High Court for the purpose of quashing it and grant the reliefs sought by the Applicants/Appellants.

(2) Whether the grant of Order of Mandamus in suit no. M/410 is a justifiable reason for the lower court to refuse the grant of the order of certiorari sought for by the Applicant/Appellants in the matter.

(3) Was the Presiding judge of the lower court right in the exercise of her judicial discretion?

(4) Whether or not the Applicants/Appellants had exhausted all the available remedies under Section 22 (5) of the Chiefs Law Oyo State 1978.

2nd Respondent in his brief filed on 6/3/08 settled three issues for determination as follows:

(1) Whether the learned trial judge considered the cases of (1) Adesola V. Abidoye (1991) 11 & 12 SCNJ at 93 and Abu Vs. Odugbo (2001) 1 SCNJ at 291 and the evidence proffered before her in determining this case.

(2) Whether the learned trial judge abandoned her duty of adjudicating in the application for certiorari before her and hold that she had no jurisdiction to so adjudicate because her predecessor in office had made an order of mandamus at the instance of the 2nd Respondent.

(3) Whether given the whole circumstances of this case, the learned trial judge was right in refusing to grant the Applicant’s prayer for an under of certiorari to quash the decision of the 3rd and 4th Respondents and in the process, set aside the decision of Oyelaran J,