CONSTITUTIONAL AND JUDICIAL/LEGAL PRICIPLES AND DOCTRINES

Asikia Ige

Introduction

Constitution is the organic and fundamental law of a nation or state,

which may be written or unwritten establishing the character and

conception of its government, laying the basic principles to which its

internal life is to be conformed, organizing the government and

regulating, distributing and limiting the functions of its difference

departments, prescribing the extent and manner of the exercise of

sovereign powers; a charter of government deriving its whole authority

from the governed, (Mowoe 2005:12).

Constitutional Law: is the body of legal rules that determine the

constitution of a state, dealing primarily with governmental powers,

civil rights, and civil liberties, (Black, 2000:250).

Constitutional law has assumed a new somewhat awesome principle.

It’s importance becomes even more pronounced in the wake of the

supreme courts pronouncement on major constitutional questions

affecting revenue allocation, limits of parliamentary power, the tenure

of local governments, and even legality of capital punishment

somehow constitutional issues that appeared impossible to resolve

have been quietly but credibly resolved by constitutional interpretation

(Osinbajo 2005, preface).

The thrust in this chapter is to examine basic rule or law relating to the

constitution and the court (in the performance of judicial duty).

We will therefore examine these concepts in the light of Nigerian

Constitutional Experience. Our focus is on the following:

Separation of Powers

Rule of Law

Natural Justice

The Ultra Vires

Estoppel

Habeas Corpus

Injunction and Types

Mandamus

Prerogative Power

Discretionary Powers

Judicial Review

Certiorari

Subpoena

We take them seriatim.

Separation of Powers

The doctrine of “the separation of powers as usually understood is

derived from Montesquieu, whose elaboration of it was based on a

study of Lock’s writings and as imperfect understanding of the

eighteenth century English Constitution. Montesquieu was concerned

with the preservation of political liberty. “Political liberty” is to be

found he says, “only when there is no abuse of power”. But constant

experience shows its that every mans invested with power is liable to

abuse it, and to carry his authority as far as it will go … To prevent this

abuse, it is necessary from the nature of things that one power should

be a check on another… when the legislature and executive powers

are united in the same person or body… there can be no liberty …

Again, there is no liberty if the judicial power is not separated from the

legislative and the executive… There would be as end of everything if

the same person or body whether if the nobles or of the people, were

to exercise three powers”.

The question whether the separation of powers (i.e. the distribution of

the various powers of government among different organs) in so far as

is practicable, is desirable, and (if so) to what extent, is a problem of

political theory and must be distinguished from the question which

alone concerns the constitutional lawyer namely, whether and to what

extent such a separation actually exist in any given constitution (Hood

Phillips and Jackson 2001:12).

Thus, according to the doctrine, a person or body must not exercise

more than one of the powers of government, one arm of government

must not control or interfere with the others and one arm of

government must not exercise the function of the other. This is

because as has been observed Blackstone:

In all tyrannical government, the supreme magistrates, or

the right both of making and of enforcing the laws is

vested in one and the same man or one and the same

body of men; and wherever these two powers are united

together, there can be no public liberty.

Madison believes that:

… There can be no liberty where the legislative and

executive powers are united in the same person or body of

magistrates or if the power of judging be not separated

from the legislative and executive powers.

Up till 1960, Nigeria was under colonial rule and the concept of

separation of powers was in operation to a very limited extent because

of the overriding authority of the colonial masters. After independence,

the 1960 and 1963 parliamentary constitution operated the British

concept of separation of powers whereby power was shared between

the judiciary on one side, and the parliament and the executive on the

other; the latter being as integral though distinct offshoot of the

former.

Under the 1979, 1989 and 1999 Presidential Constitutions, there has a

grater separation in a manner similar to that of the United States of

America. Under all these constitutions section 4 vested Legislative

powers in the National Assembly and Houses of Assembly; section 5

vested executive powers on the President and Governors, and the

powers may subject to other constitutional provisions or laws made by

the National Assembly, be exercised by them directly or through the

Vice-President, Ministers or Officers of the Public service; and by virtue

of section 6, judicial powers were vested in the courts established by

the constitution (Mowoe, 2005: 24).

According to Professor Abiola Ojo:

… a complete separation of powers is neither practicable

nor desirable for effective government. What the doctrine

can be taken to mean is the prevention of tyranny by the

conferment of too much power on anyone, person or body

and the check of the power by another.

The courts have continuously pronounced on the importance of this

concept. In Lakanmi and others v. Attorney General of Western State,

the court noted, inter-alai:

We must here revert once again to the separation of

powers, which the learned, Attorney General himself did

not dispute, still represents the structure of our system of

government. In the absence of anything to the contrary it

has to be admitted that the structure of our constitution is

based on separation of powers- the Legislative, the

Executive and the Judiciary. Our constitution clearly follows

the model of the American Constitution. In the distribution

of powers the courts are vested with the exclusive right to

determine justifiable controversies between citizens and

the state…

In Senator Adesanya v. President of Nigeria, it was decided inter-alia by

majority of the Judges of the Supreme Court that the courts have no

power to challenge as Act of the legislature except in certain

circumstances. For example, when civil rights are violated according to

Bello JSC, in that case, upon the construction of section 6(6)(b) of the

1979 constitution, which confers judicial powers in the courts, standing

will only be accorded a plaintiff who shows that his civil rights and

obligations have been or die in danger of being violated or adversely

affected by the act complained of.

In governor of Kaduna State v. House of Assembly Kaduna State the

Kaduna State Governor challenged the amendment of some provisions

in the Local Government Edict (now Local Government Amendment

Law) by the Legislature on the grounds that is violated section 4 and 5

of the 1979 Constitution. He sought a declaration that the

amendments were void because they encroached upon his executive

powers. The court declared some of the amendments void and some

unconstitutional and held inter-alia that the doctrine of separation of

powers is enshrined in the 1979 Constitution. It is therefore the

responsibility of the legislature to make laws, and the executive to

execute laws made by the legislature…

In Attorney General of Bendel State v. Attorney General of the

Federation and 22 others, the court held inter-alia, that by virtue of

section 4(8) of the 1979 Constitution, the courts of law in Nigeria have

the power and duty to see to it that there is no infraction of the

exercise of legislative power, whether substantive or procedural, as

laid in the constitution. If there is such infraction, the courts have the

power to declare any legislation passed pursuant to it unconstitutional

and invalid.

There is no doubt as to the need to separate the exercise of judicial

organ from the executive and legislative organs. Nevertheless, the

point should be noted that the separated organs are far more

expensive to run than the fused system. In the final analysis the

success of either form of government depends largely on the goodwill

of the people to make it work (Agbede, 1993: 39).

Rule of Law

The “rule of law” is an ambiguous expression, and may mean different

things for different writers. Only when it is clear in what sense the

phrase is being used is there any value in asking whether the rule of

law exists in a particular legal system (Hood Phillips and Jackson, 2001:

29-30).

The rule of law simply means that law rules or reigns. This presupposes

a situation where everything is done in accordance with law thereby

excluding any form of arbitrariness. The concept of the rule of law is of

great antiquity. This is because, for many centuries it has been

recognized that the state usually possesses enormous powers which

may be used to oppress individuals, and this has been a point of

concern for both political and legal philosophers (Wade and Phillips,

1960:4). Hence the search for a suitable and somewhat permanent

means of subjecting governmental power to control. This means was

found to be law. Thus, Aristotle (3 84-3ss B.C) had argued that

government by law was superior to government by men.

Much later, Roman jurists added to the Aristotelian concept of

government by law. Romans law developed the concept of natural law

which had been refined by the stoic philosophers of the Greek era.

Later on, Grotires (1583-1645) and others within western civilization

used natural law as the foundation of a new international law, worked

out in the hope of setting limits to the conduct of states.

Furthermore, the early Christian philosophers also emphasized on the

supreme and sovereign authority of God (the source of natural law to

them) to which the state and the law-makers are as much subject as

the individual. Teachings of Islamic religion also dwell on the

supremacy of God (Allah) and the subjection of all to his rule.

The medieval period saw the close of the Dark Ages and marked the

emergency of some semblance of law and order from a long period of

chaos. The prevailing theory during this period was that law of some

kind, the law either of God or man should rule the world (Ayua,

1995:69).

The rule of law as a constitutional and political concept has been a

subject of much interest to prominent writers even before the 19 th

century when A.V. Dicey wrote his thesis on it.

According to Dicey, the rule of law means the absolute supremacy or

predominance of regular law as opposed to the influence of arbitrary

power. Secondly, the rule of law means Equality of all persons before

the law or equal subjugation of all classes to the ordinary law of the

laid administered by the ordinary courts. In this sense, the rule of law

means that no man is above the law and that every man whatever his

rank or condition is subject to the law of the realm and amenable to

the jurisdiction of the ordinary tribunals.

Thirdly, the rule of law by Dicey is that the general principle of the

English Constitution (as for example, the right to personal liberty, or

the right to public meeting) are the result of judicial decisions

determining the rights of private persons in particular cases brought

before the courts.

Dicey’s exposition of the rule of law concept is, based in a view of the

British Constitution which to many, is out dated. This notwithstanding,

the doctrine of the rule of law has now come to assume new dimension

hitherto not contemplated by Dicey and others like him who still stick

to the conservative view of the western legal theory.

In Nigeria, Judges have often conjured the rule of law concept to

caution the government of the day on the conduct of the

administration. Thus in Re Mohammed Olayori and Others the learned

High Court judge in holding the arrest and detention of the applicants

by or under as order of the Nigerian Army Unlawful, Commented thus:

If we are to have our actions guided and restrained in

certain ways for the benefit of society… then whatever

status, whether post we hold, we must succumb to the rule

of law. The alternative is anarchy and chaos.

Furthermore, Dicey’s idea of the rule of law that in England, a man

may, only be punished for a breach of law and not for anything else

has been incorporated in most of the modern constitutions of the

common law countries. For instance, section 36 of the 1999 Nigerian

Constitution has made extensive provisions concerning, the treatment

of a criminal suspect. These provisions are to ensure that a person who

has been arrested for committing as offence is accorded the rights

pertaining to hearing and generally given a fair trial.

In Nigeria under civilian rule, the function of the rule of law is

performed by a supreme constitution which ensures fair hearing of

trials in all cases, and guarantees the preservation of rights (except

where deprivation is allowed under the provisions of the constitution)

through the subjection of all classes and persons including government

and its agencies to its provision.

In Aoko v. Fagbemi the court held; inter-alia that nobody could be

punished for an offence that was not part of our written laws at the

time it was committed.

In Attorney General of Abia State v. Attorney General of the Federation

the Supreme Court held inter-alia, that no law enacted by the National

Assembly can constitutionally or validly increase or alter the tenture of

office of elected officials of the local government except in relation to

the Federal Capital Territory, Abuja.

In Nigerian Soft Drinks Company v. Attorney General of Lagos-State the

Supreme Court held inter-alia that the Ogun State Law, which sought

to regulate inter state trade and commerce was unconstitutional. On

the other hand, the Lagos State Sales Tax Law, which dealt with intra

state trade and commerce, was consistent, and the VAT decree 102

usurped the residual powers of the state under item 9 of the

concurrent legislative list, by purporting to deal with such trade was

inconsistent with the constitution.

It should be noted that most of the notable decisions on Rule of Law

were made during military rule.

In 1986, the Supreme Court of Nigeria had cause to describe the

forceful ejection of Ojukwu from his residence in Lagos by a multitude

of armed men as executive lawlessness. The Supreme Court thus

dismissed the appeal of Lagos State Government against the order of

the lower court for repossession by Ojukwu. The Supreme Court inter-

alia reiterated that the essence of the rule of law is that it should never

operate under the rule of force.

The rule of law is a dynamic concept, not really limited to a specific

legal system, form of government or economic order, yet it has been

recognized that it can be more fully realized … under a system of

government established by the will of the people for example, a

constitutional democracy.

Natural Justice

Natural justice, at least as that phrase is normally used by lawyers,

refers principally to two fundamental principal of procedure; that

whoever takes a decision should be impartial, having no personal

interest in the outcome of the case (nemo judex in consa sua) and that

a decision should not be taken until the person affected by it has had

an opportunity to state his case (audi alteram partem). Natural justice

may sometimes be used in a wider sense to refer to a number of

fundamental principles which are said to underlie the common law.

The principles of natural justice were originally applied to the process

by which court themselves made their decisions. A beach of natural

justice was one of the grounds on which the decision of a lower court

could be upset by a higher court. In the course of time these principles

come to be applied to administrative authorities.

There is authority for regarding the requirements of “natural justice”

as a special part of the ultra vires rule, on the ground that a decision

made contrary to the principles of natural justice, when the rights of

particular individuals are adversely affected (Hood Phillips and Jackson,

2001: 796-707).

1. A man may not be a judge in his own cause

The law relating to disqualification for bias- or the appearance of bias

extends beyond the ground covered by the maxim that a man may not

be a judge in his own cause to cover any circumstances where the

facts may lead to a real likelihood of bias. Previous case law must now

be read in the light of the decision of the House of Lords in R. v.

Bewstreet Metropolitan Stipendiary Magistrate, ex p. Pino Chet Ugartu

(No. 2).

In Nigeria, it has also ban held over and cover by our courts that any

breach of the principle embodied in the maxim nemo judex in causa

sua will amount to a breach of the rule requiring fair bearing Legal

Practitioner Disciplinary Committee v. Gani Fawehinmi.

2. “Audi alteram partem”

Each party must have reasonable notice of the case he has to meet;

and he must be given an opportunity of stating his case, and

answering (if he can) any arguments put forward against it. In criminal

cases this elementary principle of justice is expressed in the saying

that no on ought to be condemned unheard. It was quaintly stated in

Dr. Bentley’s case (1723). Even God himself did not pass sentence

upon Adam before he was called upon to make his defence.

In Buhari Akande v. The State Government of Oyo-State, Kayode Eso

JSC said:

Audi alteram partem means please hear the other side, not

that the other side had been heard once and need not

again be heard, especially when the decision taken after

that previous hearing was in favour of that party.

As Jibowu, FJ (as be then was) said in Malam Saadu of Kenya v. Abdul

Kadir of Faggo.

It is a fundamental principle of the administration of natural justice that

a defendant and his witnesses should be heard before the case against

him is determined, and it is, in my view, a denial of justice to refuse to

hear a defendant’s witnesses.

Similarly, and as Ademola, CJF, (as he then was) said in Kano Native

Authority v. Raphael Obiora. Natural justice requires that as accused

person must be given the opportunity to pull forward his defence fully

and freely and to ask the court to hear any witnesses whose evidence

might help him.

Ultra Vires

Black’s Law Dictionary defines; ultra vires as unauthorized; beyond the

scope of power allowed a granted by a corporate charter or by law the

officer was liable for the firm’s ultra vires actions.

A tribunal or other body with a limited jurisdiction acts ultra vires if it

purports to decide a case falling outside its jurisdiction. Thus a rent

tribunal which is given power to fix the rent of a dwelling house cannot

make an order relating to premises which are let for business

purposes. If such a tribunal erroneously concluded that the facts of a

case fall within its jurisdiction its decision is ultra vires and can be set

aside by the courts. Facts which must exist if a tribunal is to exercise

its jurisdiction validly are known as jurisdictional facts. On matters

which do not go to jurisdiction the tribunal may err without exceeding

its jurisdiction. No satisfactory test has ever been suggested to

distinguish jurisdictional from non-jurisdictional facts but there is no

doubt that the courts use the distinction as the basis for exercising

their supervisory control.

In Lakanmi v. A.G.Western Nigeria (supra) the appellant had contended

that his assets had been wrongly confiscated under a law that was

invalid and ultra vires the 1963 Constitution. The court held that the

events of January 1966 did not constitute a revolution and that power

had been transferred by what was left of the cabinet only for the

limited purpose of restoring law and order. The powers of the Federal

Military Government were strictly limited by the constitution except

only to the extent that could be justified under the doctrine of

necessity. Accordingly, the court held that the forfeiture of Assets, etc

(validation) Decree 1969 constituted an unconstitutional exercise of

judicial powers in violation of the separation of powers established by

the 1963 Constitution, and, as a measure not reasonably necessary to

achieve the purpose which the Federal Military Government set out to

fulfill. It was ultra vires that Government and therefore void.

Estoppel

The underlying principle is that the crown cannot be estopped from

exercising its powers, whether given in a statute or by common law,

when it is doing so in the proper exercise of its duty to act for the

public good, even thought his may work some injustice or unfairness to

a private individual … It can, however, be estopped when it is not

properly exercising its powers, but is misusing them; and it does

misuse them if it exercises them in circumstances which work injustice

or unfairness to the individual without any countervailing benefit for

the public (Hood Phillips and Jackson, 2001: 747).

On the other hand, to apply the doctrine of estoppel to public bodies

might be thought to destroy the ultral vires doctrine by allowing them

to extend their powers by making representation which would bind

them by estoppel.

Estoppel also has the look of a rule of substantive law, although it

cannot be made the basis of an action by a plaintiff, a defence can be

based entirely on it. It is for this reason that it can be aid to have effect

as a rule of substantive law (Aguda, 1989: 236).

An enforceable right may be validly resisted by a defense based on an

earlier representation made by the claimant of the right to the person

against whom the right is otherwise enforceable. Similarly a valid

defense to an action may cease to be so, on the ground of an earlier

representation made by the person entitled to the defense to the

person against whom the defense is otherwise available. In other

words, where, in an action between two parties, one of the parties had,

either by words or conduct, made some representation (in connection

with the transaction that gives rise to the cause of action) to the other

party, the maker of such representation would be precluded from

denying making the representation. The insistence of the court that

such representation shall not be denied by the maker may be decisive

in the determination of, or fixing the rights of the parties; thus a

plaintiff who had such representation, may fail in an action in which he

would have otherwise succeeded; likewise a defendant may not be

able to lead a defense that would have otherwise turned the case in his

favour.

Habeas Corpus

The legality of any form of detention may be challenged at common

law by an application for the writ of habeas corpus. In origin this writ,

which is found in Edward Is reign, was merely a command by the court

to someone to bring before itself persons whose presence was

necessary to some judicial proceedings. In other words, it was

originally intended not to get people out of prison but to put them in it.

Habeas corpus was a “prerogative” writ, that is, one issued by the king

against his officers to compel them to exercise their functions properly.

In the form habeas corpus ad subjiciendum (the form now commonly

used) It came to be available, under certain conditions, to private

individuals. In the seventeenth century members of the parliamentary

opposition imprisoned by command of the king availed themselves of

the writ to seek release (e.g. Daniel’s case) and it is from this

application that originated its constitutional importance as the classic

common law guarantee of personal liberty. The practical importance of

habeas corpus as providing a speedy judicial remedy for the

determination of an applicant’s claim to freedom has been asserted

frequently by judges and writers (Dicey :199).

The Habeas corpus writ in Nigeria is a prerogative process for securing

the liberty of the subject. It ensures his immediate release from

unlawful custody or unjustifiable detention. Translated, literally, it

means that you have the body. It is directed at the detaining person or

authority with a sharp command that the detained person be produced

before the court for a specified purpose (Fawhinmi :330)

Habeas corpus like other prerogative orders is governed by state laws.

In the case of Lagos-State, the procedure for its application is governed

by the Lagos High Court (Civil Procedure Rules). Other states of the

federation would have their habeas corpus procedure regulated by the

procedure applicable in the High Courts of Justice in England.

A habeas corpus application is made ex part supported by an affidavit

deposing to the circumstance of his detention. The person to whom the

writ is directed is expected to make a return thereto by affidavit

stating the grounds of the applicants’ detention. These grounds will be

scrutinized by the court before coming to a decision on the appropriate

order to make (Ibidapo- Obe, 1993: 136-137).

The most notable limitation on the writ of Habeas corpus is that it

cannot be joined with a claim for damages. This was the decision in

Gimba v. Daura. However, in view of the flexibility allowed under the

fundamental rights procedure rules, this restriction might not hold

true. In Shugaba v. Federal Minister of Internal Affairs the court held

that a claim in tour may be joined to an application under the rules.

Injunction and Types

An order issued by the High Court is injunction, which is as order made

by the court when any authority, administrative or judicial commits as

illegal act or is about to commit as illegal act. By an order or injunction,

the concerned authority or the person is directed to refrain from

actions in manner illegally affecting the right of the right or interest; it

is directed to undo the effect of the illegal action (Ade-Raji, 2003: 166).

Under the English legal system the award of a decree of injunction

was, for centuries exclusive to the chancery court. The reason for this

exclusive jurisdiction of chancery is to be found in the peculiar history

of the English legal system whereby law and equity, were for a

considerable length of time, administered in separate courts

administering separate jurisdictions. The unpleasant situation on

resulting from the dual administration of justice led to the emerging by

series of enactments in the 19th century of Judicative (Jegede, 1981:

63).

In Nigeria, the statues High Courts are enjoined by statues to

administer law and equity concurrently. Section 16 (b) of the Federal

Supreme Court Act 1960 empowered the supreme court to grant, in

every cause or matter pending before it, either absolutely or on such

terms and conditions as the court thinks just, all such remedies

whatsoever as any of the parties thereto may appear to be entitled to

in respect of any legal or equitable claim properly brought forward by

them in the cause or matter.

Similarly section 19 of the High Court of Lagos Ordinance empowered

the High Court to grant as injunction in all cases in which it appears to

the court to be just or convenient so to do. The combined effect of the

above provisions is to confer on both the Supreme Court and the High

Courts a wide discretion in the aware of injunctions. The exercise of

this discretion must however be consistent with what is reasonable and

just in the circumstance. This means that the court ought to be

satisfied that the injunction which is being granted is as to its terms

considering all the circumstances of the case as affecting both parties,

reasonable and just.

The jurisdiction of the court to grant injunction is not limited to any

particular cause or matter. The principles with regard to injunction for

the protection of legally enforceable rights or the prevention of injury

according to legal principles

General Principles

Legally Enforceable Rights

The grant of the remedy depends on the existence of a legally

enforceable right. A plaintiff seeking the remedy must first establish a

right recognized and enforceable either at law or equity. In Adam v.

Duke Webber J. said I am … unable to find any substance in the

statement of claim, nor can I find that any legal demand or claim was

made for subscriptions or tribute or contributions as alleged. On these

findings there would appear to be no legal cause of action … The claim

for as injunction must fail. There is nothing to restrain, nor does any

reason exist for as injunction.

It is now settled that the court will not grant an injunction where the

plaintiff is unable to show an actionable wrong.

Certainty to eights to be protected

The right sought to be protected by a decree of injunction must be

clearly defined and ascertainable. Thus, in Ayoola v. Ogunjimi the

Supreme Court held that the plaintiff’s plan made it possible to declare

that they had the title to the whole area of land in dispute, but did not

make it possible to tie the injunction to any particular enclaves outside

which the defendants were not to go because the enclaves which the

defendants lawfully occupied were not precisely delineated on the said

plan which meant that an effective and useful injunction cannot at the

moment be granted.

Sufficient interest

The court will grant an injunction only at the suit of a party having

sufficient interest in the right sought to be protected.

Effectiveness of the Remedy

The remedy will not be granted where its effect will be valueless or

ineffective. Equity like nature does nothing in vain. In Joshua Awopetu

v. Madam Eleke an application for as interim injunction related to as

interest in lax which lad in dispute has already vested in a third party

who was not before the court. The application was rejected on the

ground that equity does not act in vain.

Types of Injunction

An injunction is as equitable remedy granted by the court compelling a

party to do or to refrain from doing an act. The order is mandatory or

positive where it compels a party to do an act; it is prohibitory or

restive where it prohibits the doing of an act.

Mandatory and Prohibitory Injunction

The essence of a mandatory injunction is to compel a party to restore

things to the condition in which they were at the time the plaintiff’s

complaint was made. Isenberg v.East India House Co.

Perpetual Injunction

Perpetual injunction is based on a final determination of the right of

the parties, and is intended permanently to prevent infringement of a

right, and obviate the necessity of bringing an action after every such

infringement. The order is appropriate and usually made to prevent a

continuous infringement, Ojiako v. Ogueze..

Interlocutory Injunction

An application for an interlocutory injunction postulates that the

applicant has a right; the violation of which he seeks to prevent and in

order to do so effectively to ensure at that stage of the proceedings

that the subject matter of the right be maintained in status quo.

Therefore, an interlocutory injunction is that kind of equitable remedy

which is only granted at the discretion of the court in order to nullify as

actual or anticipated alteration of the stutus quo or to prevent the

commission of some act or the taking of some steps which will be

impossible to reverse if done or taken.

In the past, there was a need for an applicant for an order of

interlocutory injunction to show that he had a prime facie or a strong

prime facie case. However, this requirement is no longer the law today.

The law is that the applicant should satisfy the court that there is a

serious issue to be tried. Abbas v. Ajoge.

Quia Timet Injunction

This is a kind of injunction sought by a person to retrain the doing of an

apprehended mischief. Unlike perpetual and interlocutory injunctions

which are sought to restrain infringement or alleged infringement of

rights; a quia timet injunction is sought before the mischief is done.

Thus the exercise of this equitable jurisdiction is predicated on the fact

that a person is entitled to take action quia timet, before he is actually

injured. Niger Chemists Ltd v. Nigeria Chemists Ltd

Ex Parte Injunction

This type of injunction is granted for a very short period. Normally an

applicant for as injunction must serve, upon the defendant, a notice of

the motion; this is to avail the defendant an opportunity of preparing

his defence, and if being heard. But in certain cases, because of the

urgency of the matter, which requires speedy procedure as ex parte

injunction (that is an injunction that is granted before the defendant

has had opportunity to defend or oppose the application and, or before

the notice of the motion is served on the defendant.

The defendant is however, expected to be served before the next

motion day when he would be expected to make a case for the

discountenance, of the injunction before the trial of the substantive

action (Jegede 1981: 64-69, 71, 77-78).

Despite the constitutionality of the remedy, the courts are however not

at liberty to grant the remedy indiscriminately. Instead, each

application must be considered on its merit and should only be granted

where such grant would not amount to a flagrant disregard of the audi

alteram partems rule (John, 1987: 16).

Mandamus

An order of mandamus is an order to compel the performance of a

public duty, as a first resort where not other remedy is available

(Aguda 1980: 668) when a public institution fails to perform a public

duty, the civil rights and obligations of some citizens are bound to be

affected, it is an order which a court of law can make as a

consequential order in any deserving case before it. In Architect’s

Registration Council of Nigeria (in re Majoroh) v.Prof. M.A. Fasasi The

Supreme Court held: had to make an order compelling the Architect’s

Registration Council of Nigeria to register the appellant who’s right to

be so registered had been uphold by the court four years earlier.

In Gani Fawehinmi v. Alilu Akilu & Anor, the Lagos State Attorney-

General refused to endorse his refusal to prosecute on as application

brought by a private prosecutor. The application was for leave to effect

a private prosecution of the security officers suspected of having

murdered a journalist. After a protracted challenge of the locus standi

of the applicant, to bring a private prosecution, a Lagos High Court

finally ordered the Lagos State Attorney General to do her duty. In the

event, her office opted to prosecute the suspects directly.

A possible limitation on the mandamus remedy is the requirement,

often strictly enforced that there should be no other remedy equally

conveniently available.

Certiovari and Prohibition

This is an order issued to an “inferior court” or a person or body

exercising what the High Court regards as a “judicial” or “quasi-

judicial” function, to have the record of proceedings removed into the

High Court for review, and (if bad) to be quashed.

What is an “inferior court” for this purpose, or whether a person or

body exercises powers of a “judicial” or “quasi-judicial” nature is a

question for the High Court to decide. The former locus classicus was

the dictum of Atkin L.J. in R v. Electricity Commissioners. Whenever

anybody of persons having legal authority to determine questions

affecting the right 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 (i.e.

certiovari and prohibition).

The grounds on which certiorari leis are:

i) Want or excess of jurisdiction

ii) Denial of natural justice

iii) Error on the face of the record.

In Gani Fawehinmi v. Legal Practitioners Disciplinary Committee a High

Court issued an order prohibiting the disciplinary committee from

sitting over changes preferred against the applicant. The applicant

contended that the body as constituted could not give him a fair

hearing. The Attorney General was also prosecuting through one of his

subordinates. The Attorney-General rather incongressively, was also

statutorily the chairman of the disciplinary committee.

In the case of Garba v. University of Maiduguri, The Supreme Court had

no difficulty holding that the University disciplinary panel had

exceeded its jurisdiction. The panel had been set up to investigate

alleged acts of looting and arson against demonstrating students. The

students were found guilty and several amongst them Garba, were

rusticated. They filed this action seeking their reinstatement. They

argued that the panel upon whose recommendation their dismissal

was based had exceeded its lawful brief by arrogating to itself the

functions of a court of law. The Supreme Court invoked certiorari to

quash the panel’s decisions.

The order of prohibition issues to prevent an inferior court or tribunal

from exceeding or continuing to exceed its jurisdiction or infringing the

rules of natural justice. Prohibition is governed by similar principles to

certiorari, except that it does not lie when once a final decision has

been given.

The problem with certiorari and prohibition really is the difficulty of

distinguishing between a ministerial act and a judicial or quasi judicial

act.

Prerogative Power

The powers exercised by the state, whether in peace or war, for the

defense of the realm or the training or maintenance of the armed

forces. Among prerogative powers are those relating to the treatment

of aliens, employment of Government servants and the principle of the

Amphitvite case statutory powers would include the bulleting of

soldiers?

It remains the function of the court to decide whether, and to what

extent, the alleged prerogative exists. Section 5 of the Constitution of

the Federal Republic of Nigeria 1999 states the Executive powers of

the federation S. 5 (1) (a-b) (5) states the relevant provisions.

Discretionary Powers

The concept of discretion has been subjected to various definitions by

legal scholars and jurists alike. According to Black’s Law Dictionary,

discretion is:

‘The power to act in an official capacity in a manner which

appears to be just and proper under the circumstances’

In the words of Lord Halsbury L.C., discretion means when it is stated

that:

Something is to be done according to the rules of reason

and justice, not according to private opinion … according

to law and not according to humour. It is to be not

arbitrary, vague, fanciful but legal and regular. And it must

be exercised within the limits to which as honest man

competent to the discharge of his office ought to confine

himself.

There is an idea buried deep in the hearts of various constitutional

theorists and judges that there are certain administrative activities

which are unsuited to judicial control. As O.J. Galligan puts it:

To discipline administrative discretion by rule and role is to

denature it.

According to this idea, the nature of discretionary power requires each

decision to be made from the constraints of preconceived policies as to

the ends and goals to be achieved by such power. The circumstances

of the situation will indicate that proper decision and policy choices

must remain in the background.

In spite of the fact that the law courts have a constitutional function of

controlling the exercise of discretion, there are still some categories of

discretion which are not subject to judicial control. Let us now examine

some of them.

Nolle Prosequi

This refers to the discretion given to the Attorney-General to stay

proceedings before judgment is given in any court of law in Nigeria.

This means that the Attorney-General has the discretion to determine

whether any criminal prosecution shall be continued or discontinued.

The power of nolle prosequi is vested in the Attorney General for the

federation by virtues S. 174 of the Nigerian Constitution 1999, while

the states Attorney-General derive this power by virtue of S. 195 of the

same constitution.

The power of nolle prosequi is not subject to any form of judicial

control. The Supreme Court held in States v. Ilori that the Attorney-

General need not give reasons for exercising this power.

The power of nolle prosequi is expected to be exercised in the interest

of justice and to prevent abuse of legal process. But even where the

power has been flagrantly misused, the courts have no legal capacity

to control such abuse.

Statutory Exclusion of Judicial Intervention

Where an act has given discretion to exercise a power on an

administrative authority without making “good faith” a relevant

prerequisite in the exercise of the power, the courts are always

reluctant to interfere with the exercise of such discretionary power.

This situation is clearly illustrated by the decision of the court in Yusuf

v. Egbe. The plaintiff/respondent had used the defendants/appellant

who was at the material time the Inspector-General of Police for

unlawful detention under the provisions of the Armed Forces and Police

(Special Powers) Decree No. 24 of 1967. The Court of Appeal reversing

the judgment of the High Court held that the Public Officer Protection

Law contains no qualification of “good faith” and that the court ought

not to read into statute words of limitations. In the words of Kutigi

J.C.A:

There is no onus on the defendant to show that he was not using

the order of detention to further his own wicked motives in order

to enjoy the protection afforded by the Armed Forces and Police

(Special Power) Decree No. 24 of 1967.

Failure to Challenge the Exercise of Discretion within the

Prescribed Time Limit

The Law courts will not be able to interfere with the exercise of

administrative discretion where the prescribed time for challenging the

power has elapsed before an aggrieved person goes to court to

challenge such discretionary power. Thus in Yusuf v. Egbe (supra) the

court held that the appellant who had been detained for eleven days

could not claim damages for unlawful detention as he did not

commence legal action until seven months after the detention. It was

further held that once a complaint fails to bring his action within a

prescribed time, the claimant’s cause of action is extinguished and it

cannot be reviewed by the contention that the public officer’s wrong

was not done in pursuance of his public duty … failure to institute an

action within the prescribed time limit renders any subsequent

litigation statute barred.

Seeking of Inappropriate Remedy

Thus, in R. v. Governor in Council Western Nigeria and Others the court

refused to grant an application for the issue of certiovari to quash an

order made by the Governor, dissolving the Ife District Council. The

learned judge held that the action of the Governor in council was

purely as executive act which was not subject to judicial review by

means of certiorari, (Faboro, 1990: 46-50).

Judicial Review

1. A court’s power to review the actions of other branches or levels

of government, especially the courts’ power to invalidate

legislative and executive actions as being unconstitutional.

2. The constitutional doctrine providing for their power.

3. A court’s review of a lower court’s or an administrative body’s

factual or legal findings (Black’s Law 2000:684).

Except for some recent bold departures, development in administrative

law, as indeed in other areas of the law in Nigeria, have followed

closely those of other parts of the common law would especially that of

England (Iluyomade and Eka 1992: 451).

In any civilized and Democratic country, the supremacy of the

parliament cannot be in doubt notwithstanding the existence of the

Doctrine of Separation of Powers … And although the power of the

Judiciary is to interpret law and adjudicate on disputes, yet it is seen

many a time that the powers of the court so to adjudicate may be

ousted, restricted and or curtailed by the Parliament legislator. The

case of Lakanmi v. A.G. (Western Nigeria) and Others already cited.

In matters of public law the role of the ordinary courts is of high

constitutional importance. It is a function of the Judiciary to pass upon

the validity of acts and decisions of the executive and the

administrative tribunals and to afford protection of the rights of the

citizen. Legislation which deprives them of the power to perform this

function is often claimed to be inimical to the principle of the rule or

supremacy of law…

However, the courts have been put between scyllas and charibidis in

accepting such interference with their functions. And they have

tenaciously intervened in cases of patent irregularity and justification

as follows:-

For instance, they have intervened under the presumption of the law

that, justifiable issue is not to be denied the rights of trial by the courts

save by clear words in a statute. Also they have intervened in

agreements which are contrary to public policy and which oust the

courts in contract cases form adjudicating.

They have intervened where their jurisdiction have been impliedly

curtailed and not expressed in crystal clear terms.

The courts will intervene and decide on cases where the principles of

Natural justice are found to be violated.

The courts will also intervene and determine whether a particular

authority has misdirected itself and applied a wrong test, or made

wrongful legal approach to the question before it.

The courts in Nigeria will also intervene where there is an allegation of

in-human treatment in as much as, and for so long as the Federal

Government of Nigeria remains a signatory of the Universal

Declaration of Human Rights …

Thus in Molokwu v. Commissioner of Police and Another where

Agbakola J. considered whether the jurisdiction of the court had been

removed by section 7 sub-section 1 of the Eastern Nigerian Public Law

and State Security Edict No. 5 of 1976 which states that: any order

made pursuant to this edict shall not be inquired into by any court of

law Agbakoba J. held: that if inhuman treatment is found, and though

only incidental to the detention, corrective orders can be made. And if

it appears that the purpose of detention was to achieve ill treatment as

a means of punishment, a total release would be ordered.

In Nigerian Ports Authority v. Panalpina World Transport Nigeria Ltd

that matters which are not within the four walls of a Decree cannot

enjoy the protection of the ouster of the courts jurisdiction. It was

further held in the same panalpina case that the decision or order of

the Arbitration Board will be ultra vires the board if it was made or

given without jurisdiction or outside jurisdiction (Oyewo 1997: 256-

258).

Subpoena

A write summons issued in an action or suit requiring the person to

whom it is directed to be present at a specified place and time, and for

a specified purpose, under a penalty (sub poena ) for non-attendance.

The varieties of subpoena now in common use are the subpoena ad

testificandum, called a subpoena dd test, used for the purpose of

compelling a witness to attend and give evidence, either in court or

before an examiner or referee, and the subpoena duces tecum used to

compel a witness to attend in court or before an examiner or referee,

to give evidence and also bring with him certain documents in his

possession specified in the subpoena.

A person attending under a subpoena duces tecum to produce a

document need not be sworn, and in that case he cannot be cross-

examined.

These subpoena’s also used in criminal proceedings; four witnesses

can be included in one subpoena, whether in civil or criminal cases.

References

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CASES

1. Abbass v. Ajogo

2. Adam v. Duko (1927) 8 N.L.R. 88

3. Adesanya v. President of the Federal Republic of Nigeria (Anor,

1981)2 N.C.C.R. 358.

3b. Attorney-General BendelV Attorney –General of the Federation

(1982)2 N.C.C.R. 1

4. Attorney-General Abia State v. Attorney-General Federation

(2002)16 WRN 1.

5. Aoko v. Fagbemi (1961) All N.L.R. 440.

6. Architects Registration Council of Nigeria In Re-Majoroh v. Prof.

M.A. Fasasi (1987)3 N.W.L.R. 42.

7. Ayoola v. Ogunjimi (1964)1 All N.L.R. 188.

8. Busari Akande v. The State Government of Oyo State (1988)7

N.W.L.R. 681.

9. Gani Fawehinmi v. Akike & Anor (1988)2 W.L.R. pt. (67) 122.

10. Gani Fawehinmi v. Legal Practitioners Disciplinary Committee

(1985)1 N.W.L.R. (pt. 7) 300.

11. Garga v. University of Maiduguri (1986)1 N.W.L.R. (pt. 18) 550.

11b. Gimba v. Daura Suit No. K/M/35/85

12. Governor of Kaduna-State v. House of Assembly, Kaduna (1982)3

N.C.L.R. 635.

13. Isenberg v. East India House Co (1863)2 D.J. 8 S. 263.

14. Joshua Awopetu v. Madam Eloko CCHCJ/9/72.

15. Kano Native Authority v. Raphael Obiora (1959) 4 F.S.C 226.

16. Legal Practitioners Disciplinary Committee v. Gani Fawehinmi

(1986)1 Nigeria Law Times Report, 209.

17. Lakanmi v. Attorney-General Western State (1971) U.I.L.R. 201.

18. Malam Saadu of Kenya v. Abdul Kadir of Fagge (1956)1 F.S.C, 39

at 41.

19. Mohammed Olayori (Re) (1969)1 NMLR 236.

20. Niger Chemist Ltd v. Nigerian Chemist Ltd (1961)1 All N.L.R. 171.

21. Nigerian Soft Drinks Company v. Attorney-General Lagos (1987)2

NWLR (pt. 57) 44.

22. Ojiako v. Ogueze (1962)1 All N.L.R. 58.

23. R. v. Bewstreet Metropolitan Stipendiary Magistate, Ex p.

Pinochet Urgate No. 2 (1999)2 W.L.R. 272.

23b. R. v. Electricity Commissioners (1924)1 K.B. 171

24. R. v. Governor in Council Western Nigeria v. Ajagunna (1957)

W.R.N.L.R. 104.

25. Shregaba Darman v. Federal Minister of Internal Affairs (1981)2

N.C.L.R. 218.

26. State v. Ilori (1983)2 S.C. 155.

27. Yusuf v. Egbe (1957)2 N.W.L.R. (Pt. 56) 341.

Ayua M. (1995) “The Rule of Law in Nigeria” Law, Justice and the

Nigerian society Essays in Honour of Hon. Justice Mohammed Bello (Ed)

I.A. Ayua Nigerian Institute of Advanced Legal Studies, Lagos, Nigeria

Black H. (2000) Black’s Law Dictionary, Abridged Seventh Edition, West

Group, St. Paul Minn

Dicey, (1959) the Law of the Constitution

Faboro Bolaji (1990) “The Limits of Judicial control over the Exercise of

Discretion: The Nigerian Experience” The Lord Justice Volume Three

Journal of the Law Student’s Society, University of Ibadan, Nigeria.