By Ogungbe Barakat Ebunoluwa

INTRODUCTION

The term Certiorari is Latin for “to be made certain” . It is a prerogative writ of common law origin. It is a form of judicial review.

The Court of Appeal in the case of ITAM V OROK (2013) AELR 1581 (CA) adopted the definition of H. W.R WADE & C.F FORSYTH’S definition of Certiorari in their book ADMINISTRATIVE LAW 8th edition, p591It goes thus: ” Certiorari is used to bring up to the High Court the decision of some inferior tribunal or authority in order that it may be investigated. If the decision does not pass the test, it is quashed, that is to say , it is completely invalid, so that no one need respect it. The underlying policy is that all inferior courts and authorities have only limited jurisdiction or powers and must be kept within their legal bounds.

In the case of NWAOBOSHI V MILITARY GOVERNOR,DELTA STATE and ORS (2003) 5 SC 120, the Super Court stated that ” Certiorari is to control inferior tribunals from exercising their mandate or jurisdiction wrongly, and no more”

Furthermore, T. Aguda in his book “Practice and Procedure of the Supreme Court, Court of Appeal and High courts of Nigeria” 1995 Edition pages 654-655, appraised the function of Certiorari, “Certiorari is one of the prerogative writs whose main function is to ensure that inferior courts or any body entrusted with performance of judicial or quasi-judicial functions keep within the units of the jurisdiction conferred upon them by statute which create them. Therefore, an order of Certiorari will lie to remove into the high court for purpose being quashed any judgements, orders, convictions or other proceedings of such inferior courts or body, civil or criminal made without or in excess of jurisdiction”

It is important to note the constitutional framework of Certiorari. Although, the prerogative writ of Certiorari is not expressly stated in the Constitution of the Federal Republic of Nigeria 1999(as amended). However, the Court in the case of OREDOYIN V AROWOLO (1989)4NWLR PT 172 at 211 the court stated that Certiorari is one of the prerogative writs issued under the concept of Judicial review. Thus, it is safe to state the provision of section 6(6)(a)(b) as well as Section 272(2) of the CFRN as the constitutional framework of Certiorari.

In the case of TEGA ESABUNOR & ANOR V DR TUNDE FAWEYA & ORS LER [2019]SC.97/2009, the super court PER a Super man provided four instances where the remedy would be available. “The remedy would be available where:
a) a party was denied fair-hearing as evident in the case of JUDICIAL SERVICE COMMISSION V YOUNG (2013) 11 NWLR (PT 1364)1

b) An inferior court acted without or in excess of jurisdiction. See the case of HADEJIA V LADAN &ORS (2018) LPELR- 45638(CA).

c) there are errors in the record of the inferior court. See the case of NEBEDUM V LABISI (2001) 1NWLR (PT 693) 83

d) a conviction or order has been obtained by collusion, or fraud.
See also the cases of EKPO V CALABAR LOCAL GOVERNMENT COUNCIL (1993) 3NWLR PT (281) P.324, NWAOBOSHI V MILITARY GOVERNOR, DELTA STATE & ORS (2003) 5 SC 120.
It is important to note that Certiorari can only be used to quash judicial or quasi-judicial proceedings , it cannot be applied to administrative acts or ministerial or executive acts. In the case of NWAOBOSHI V MILITARY GOVERNOR, DELTA STATE and ors (2003) 5 SC 120 , the court reinforced that it is a fatal misconception to apply via Certiorari to crush an entirely administrative or executive exercise of power” see also the case of TEGA ESABUNOR &another V DR TUNDE FAWEYA & ors ( Supra).
Also note that an order of Certiorari will not be issued to a private body or tribunal which derives its jurisdiction from a contract or voluntary association or domestic tribunals which is solely from the consent of it’s members. However, if such jurisdiction vested in the body is derived from a statue over persons in contractual relationship with it then, it may be subject to Certiorari. See GARUBA V UNIVERSITY OF MAIDUGURI (1986) 1 NWLR (pt 18).

It is apposite to mention that Certiorari and Appeal differ. In the case of HADEJIA v LABAN and ors(Supra), the court held that “Certiorari is a form of judicial review . Judicial review is the supervisory jurisdiction of the high court exercised in the review of proceedings, decisions and acts of the inferior courts and tribunals and acts of governmental bodies… instead of substituting it’s own decision for that of some other body, as happens on appeal, the court in review is concerned only with the question whether the act or order under challenge should be allowed or not”. Also, the court reiterated the position that a court considering whether an order of Certiorari should be granted should be guided by the principle that it is not active in appellate capacity but in supervisory capacity. See the case of AGWUEBO V KAGOMA (2000) 14 NWLR (PT 687) 252.

In the case of AG ANAMBRA V EZEME (2014) AELR 5836 (CA) , the court stated that “ a party seeking an order of Certiorari must file two applications. The first one is an ex-parte application for the leave of the court to apply for an order of Certiorari. The second application us filed when the leave of the court sought has been granted by the court and must be on notice to the other party.”. Also, The applicant must at the date of hearing of the application have placed before the court the record of proceedings of the inferior court sought to be quashed. See the case of HADEJIA v LABAN and ors(Supra). The applicant bears the burden of establishing sufficient facts justifying the making of the order. See the case of OKEKE v BABA (2003) 3NWLR (PT 650) 644. See also, SHYLLON V UNIVERSITY OF IBADAN (2007) 1NWLR (PT 1004)

Writ of Certiorari cannot be invoked in election matters. The court in the case of A.N.P.P v Returning officer, Abia State & ors(2007) 11NWLR (pt 1045) 431 held that “ Election matters are in a class of their own and are entirely statutory. The writ of Certiorari and Mandamus being common law remedies cannot be invoked in a purely election matter and where they are invoked, they cannot change the character of the matter as an election matter clearly belongs to the election tribunal and clearly outside the jurisdiction of high courts.” See also the case of *EGHAREVBA V ERIBO (2010) 9NWLR (PT 1199) 411 SC.

CONCLUSION

It should be noted that the issue of time limit does not apply to how long an order of Certiorari can last rather it applies to the time in which the order should be sought. Order 44 Rule 4 of Lagos State High Court Rules(2019), posits that an order of Certiorari must be must sought within three months of the occurrence of the subject of application.

Ogungbe Barakat Ebunoluwa is the public relations officer II of Human Rights Chambers, University of Ilorin. She is a student of law and currently in her second year in the University of Ilorin. Barakat can be reached by mail via [email protected]