IGBOHO, IREPO LG COUNCIL AND COMMUNITY V. BOUNDARY SETTLEMENT COMMISSIONER AND ANOTHER (1988)

Background

This appeal concerned a long-running boundary dispute between the Igboho/Irepo community and the Shepeteri/Shaki community. A Boundary Settlement Commissioner had investigated the dispute and delivered findings on 17 August 1972. Those findings were subsequently confirmed by the Boundary Settlement Commission Appeal Tribunal on 17 July 1974. Dissatisfied with the result, the appellants sought judicial review by applying to the High Court of Oyo State for an extension of time within which to seek leave to apply for an order of certiorari, together with the required leave itself. Certiorari was sought to bring the decisions of the Commissioner and the Appeal Tribunal before the High Court for quashing.

The application was supported by a statement containing thirteen grounds. The appellants alleged, among other things, that the Commissioner had exceeded his jurisdiction by fixing a boundary after finding that no clearly defined boundary existed, had misdirected himself concerning the evidential value of a provincial map, and had reached a decision that no reasonable tribunal could have reached. The High Court refused leave and alternatively struck out the application as improperly constituted, frivolous, or an abuse of process. The appellants appealed.

The Court of Appeal held that the High Court had wrongly treated the application for leave as though it were the substantive application for certiorari. It allowed the appeal and granted the necessary extension of time. However, it then proceeded to consider and dismiss the substantive certiorari application without specifically inviting counsel to address the court on that stage of the proceedings. The appellants appealed to the Supreme Court.

Issues

1. Whether the Court of Appeal should have limited itself to deciding whether leave to apply for certiorari ought to be granted.
2. Whether, having decided to hear the substantive application, the Court of Appeal was required to invite the parties to present arguments on the merits.
3. Whether the Supreme Court should exercise its general powers under section 22 of the Supreme Court Act 1960 and determine the substantive certiorari application itself.

Ratio Decidendi

The Supreme Court unanimously allowed the appeal. It reaffirmed that judicial review proceedings for certiorari proceed in two distinct stages. First, the applicant makes an ex parte application for leave to apply for the order. At this stage, the applicant need only disclose a prima facie or arguable case. Secondly, if leave is granted, the applicant makes the substantive application for certiorari by motion on notice to the respondents. The respondents must have an opportunity to respond, including by filing a counter-affidavit where appropriate.

The purpose of the leave requirement is to prevent judicial time being consumed by trivial, misconceived, or vexatious complaints and to protect public authorities from uncertainty concerning the validity of administrative action. It is not, however, the function of the court at the leave stage to conduct a full trial or finally determine whether certiorari should issue.

The Court held that the Court of Appeal had jurisdiction under section 16 of the Court of Appeal Act 1976 to proceed beyond the appeal against refusal of leave and determine the substantive application. Two courses were open to it: it could grant leave and remit the matter to the High Court for hearing of the substantive motion, or it could grant leave and hear the substantive application itself. Nevertheless, the exercise of that jurisdiction was subject to the fundamental requirement of fair hearing.

Court Findings

The Court of Appeal fell into error by determining the substantive application without calling upon the parties to address it on that issue. The invitation made by counsel for the appellants that the appellate court should entertain the substantive application did not dispense with the duty to hear all parties. A court cannot properly condemn a party without giving that party a meaningful opportunity to be heard.

The Supreme Court noted that the arguments already made on the appeal might have covered some issues relevant to certiorari, but they did not necessarily cover all thirteen grounds in the statement supporting the application for leave. In particular, the appellants had not been given a proper opportunity to argue that the alleged factual errors were errors of law, jurisdictional errors, or errors apparent on the face of the record. They might also have sought permission to amend or expand the grounds after leave was granted.

Although section 22 of the Supreme Court Act 1960 gave the Supreme Court broad power to hear a matter as though it had been instituted in that court and to rehear proceedings in whole or in part, that power had to be exercised cautiously. The Supreme Court should not ordinarily determine an issue which had not been properly argued and decided by the intermediate appellate court, particularly where doing so could undermine the constitutional appellate relationship between the Court of Appeal and the Supreme Court.

Conclusion

The appeal was allowed. The Supreme Court set aside the decision of the Court of Appeal insofar as it determined the substantive certiorari application without hearing the parties. The case was remitted to the Court of Appeal, Ibadan Division, to hear full arguments on the substantive application for certiorari and determine it on its merits. The decision was unanimous, with costs of N300 awarded to the appellants.

Significance

This decision is an important Nigerian authority on the procedure for judicial review. It distinguishes clearly between leave to apply for certiorari and the substantive order itself, emphasises that leave requires only a prima facie case, and confirms the appellate court’s power to determine the substantive application where appropriate. More importantly, it establishes that procedural convenience cannot override fair hearing. Even where counsel has made substantial submissions, the court must ensure that every party knows the issue being determined and has a genuine opportunity to address it before judgment. The case also illustrates the restrained use of the Supreme Court’s general powers: efficiency and finality are valuable, but they must not deprive the Court of Appeal of the opportunity to decide matters properly in the first instance.