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. Its
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 Locks 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: 2930).
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.
Diceys 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, Diceys 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: 796707).

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. Bentleys
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 defendants 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
Blacks 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 firms 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. Daniels 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
applicants 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 plaintiffs 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 plaintiffs
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 Architects Registration Council of Nigeria (in
re Majoroh) v.Prof. M.A. Fasasi The Supreme Court held: had to make an
order compelling the Architects Registration Council of Nigeria to register
the appellant whos right to be so registered had been uphold by the
court four years earlier.
In Gani Fawehinmi v. Alilu Akilu & Anor, the Lagos State AttorneyGeneral 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 kings
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 panels 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 Blacks 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

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

claimants cause of action is extinguished and it cannot be reviewed by
the contention that the public officers 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 courts 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 courts review of a lower courts or an administrative bodys

factual or legal findings (Blacks 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 crossexamined.

These subpoenas also used in criminal proceedings; four witnesses can

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

References
Ade-Raji J.O. (2003) Common Law and Constitutional methods of
Enforcing Human Rights in Nigeria University of Ado-Ekiti Law Journal,
Ado-Ekiti, Nigeria
Aguda T.A. (1989) the Law of Evidence in Nigeria, 3 rd Edition, Spectrum
Law Publishing, Ibadan, Nigeria
Agbede I.O. (1993) The Rule of Law and the Preservation of Individual
Rights Individual Rights under the 1989 Constitution led, M.A. Ajomo
and Bolaji Owasanoye. Nigeria Institute of Advance Legal Studies, Lagos,
Nigeria

Fawehinmi Gani (1986) Nigerian of Law of Habeas Corpus, Nigeria Law

Publications Ltd., Lagos, Nigeria
Hood Phillips & Jackson (2001) Constitutional and Administrative Law,
Eight Edition Paul Jackson & Patricia Leopold International Student
Edition Sweet & Maxwell, London, United Kingdom
Ibidapo-Obe, Akin (1993) Remedies for Breach of Fundamental Rights
Individual Rights under the 1989 Constitution (Ed) M.A. Ajomo and
Bolaji Owasanoye, Nigerian Institute of Advanced Legal Studies, Lagos,
Nigeria.
Iluyomade,

B.O.

&

Eka

B.U.

(1992)

Cases

and

Materials

on

Administrative Law in Nigeria, Second Edition, Obafemi Awolowo

University Press Limited, Ile-Ife, Nigeria.
Jegede, M. I. (1981) Principles of Equity, Ethiope Publishing Corporation,
Benin City, Nigeria

John Eni-Uwubame (1987) The Constitutional Basis of Exparte

Injunction The Lord Justice, Volume One A Journal of the Law Students
Society, University of Ibadan.
Mowoe, K.M. (2005) Constitutional Law in Nigeria Volume One, Revised
Edition, BPrint Lagos, Nigeria.
Ojo, Abiola (1987) Constitutional Law and Military Rule in Nigeria, Evans
Brothers, Ibadan, Nigeria.

Osinbajo Yemi (2005) Foreword in Constitutional Law in Nigeria Volume

One, Revised Edition BPrint Lagos, Nigeria.
Oyewo, Toriola (1997) Administrative Law in Nigeria, Jator Publishing
Company, Nigeria.
Wade E.C.SR and Phillips G.G. (1960) Constitutional Law, Longman,
London.

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) Blacks 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 Students Society, University of Ibadan, Nigeria.