Prohibition order is available against a person acting in judicial or quasi-judicial capacity

In the Court of Appeal
Enugu Judicial Division
Holden at Enugu
On Wednesday 9th day of December, 2015
Before their Lordships:

HELEN MORONKEJI OGUNWUMIJU – JUSTICE COURT OF APPEAL
TOM SHAIBU YAKUBU -JUSTICE COURT OF APPEAL

RITA NOSAKHARE PEMU JUSTICE COURT OF APPEAL CA / E/ 162 / 08
BETWEEN
BARR. BASIL IGWIKE & ORS – APPELLANTS AND
MR. DUBEM OBAZE & ORS – RESPONDENTS

The judicial attitude to this discretionary power to issue the prerogative writ of prohibition had always been that by its very nature, prohibition is used where the complaint is excess of, or lack of jurisdiction and to prevent a breach of natural justice particularly when an adjudicator has pecuniary or proprietary interest in the subject matter he is to preside on. So held in Court of Appeal in Enugu in a unanimous ruling delivered by His Lordship Helen M. Ogunwumiju (JCA), and his learned brothers Tom S. Yakubu and Rita N. Pemu JJCA concurring while dismissing the appeal. The parties were represented by K.J. Bielu for the Appellants / Applicants, Ugo Abana Principal State Counsel Anambra State Ministry of Justice for 1st Respondent and Chief O.B. Onyali SAN with him I.C. Machie for the 3rd and 4th Respondents.

JUDGMENT
This is an appeal from the decision of Honourable Justice C.O. Amaechi of the High Court, Ekwulobia, Anambra State delivered on the 10th day of December 2007. The facts that led to this appeal are as follows:

On the 10th day of August, 2007, the Appellants took out an originating motion for leave to apply for an order of prohibition against the action of the Respondents. The originating application sought to prohibit and restrain the Respondents and their servants from carrying on with a referendum at Nkerehi Town in Orumba South Local Government Area of Anambra State on the change of the name of the town from Nkerehi to Umuchukwu and same was granted on 13/08/07.

The Applicants then filed a Motion on Notice pursuant to Order 40 Rules 3, 4, 5 and 6 of the High Court (Civil procedure Rules) Anambra State 2006 and under the inherent powers of the court as preserved by section 6(6) of Constitution of Federal Republic of Nigeria 1999, seeking the following:

a) An order of prohibition, prohibiting and restraining the Respondents from carrying on a referendum at Nkerehi on whether to change the name of the town “Nkerehi” to “Umuchukwu” and;
b) An order that the Respondent lacked the authority, competence and jurisdiction to carry out such a proposed referendum and change of name.
At the hearing of the appeal, the name of the 2nd Respondent being deceased was struck out. Thus on the date of hearing this appeal, Dr. Maduka and Mr. P. Ibezimuzor became 2nd and 3rd Respondent respectively. The Appellants’ brief was filed on 4/6/09, deemed filed on said day. The 1st Respondent’s brief was filed on 23/5/11 and it was deemed filed on 9/5/12. The 2nd and 3rd Respondents’ brief was filed on 6/7/09. The Appellant’s filed a Reply brief on 23/5/12 out of time. In spite of this court’s obvious willingness to accommodate an application to deem the Reply brief properly filed on the date the appeal was taken, no attempt was made by the Learned Appellants’ counsel to seek said deeming order. In the circumstances, the Appellants’ Reply brief being incompetent is hereby struck out.
In the Appellants’ brief prepared by Dr. M.N. Umenweka Esq, five issues were identified for determination as set out below.

Whether the relief for an order of prohibition is available to the Applicants in this suit.
Whether the proposed acts of the 1st Respondent to carry-out a referendum or plebiscite to change the name of Nkerefi Community to Umuchukwu which would affect the rights of the Applicants is a Quasi-Judicial Act.
Whether the learned trial Judge gave a fair hearing to the Appellants.
Whether the trial Judge was right in dismissing the application when there was no evaluation of the evidence of parties in the case.
Whether the learned trial Judge was right in dismissing the application, when there are manifest contradictions in the affidavit evidence of the Respondents.

In the amended 1st Respondents’ brief prepared by Ugo Abana Esq., two issues were settled for determination as follows:-

Whether the learned trial Judge was right in dismissing the application of the Appellants in accordance with the law?
Whether the learned trial judge gave fair hearing to the Appellants in this suit.
In the brief settled by Chief O.B. Onyali, SAN on behalf of the 2nd and 3rd Respondents, the following were distilled for determination:

(i) Whether the 1st Respondent was acting in a judicial or quasi-judicial capacity and whether the Court below was right in dismissing the application for the grant of an order of prohibition against him? (Grounds 2, 3 and 7)

(ii) Whether the court below considered all the affidavit evidence before it in coming to its decision? (Ground 1).
Whether the court below was right in holding that the 1st Respondent did not do anything to jeopardize suit No. AG/33/2o007. (Ground 4).
Whether there was any need for the Court below to call oral evidence before coming to its decision? (Ground 5).

Whether the Court below relied on an unsigned document in coming to its decision and if so, whether that vitiated its decision? (Ground 6).
After reading the Record and the arguments of learned counsel, I am inclined to crystallize the following issues for the determination of this appeal. They are set out below:

1.Whether the 1st Respondent was acting in a judicial or quasi-judicial capacity and whether the Court below was right in dismissing the application for the grant of an order of prohibition against him?
2.Whether the learned trial judge gave fair hearing to the Appellants.

ISSUE ONE
The learned Appellants’ Counsel argued this issue in the arguments contained in its issues 1, 2 and 3. Counsel submitted that the remedy of prohibition is available to the Applicants in this suit being a remedy resorted to mainly for the control of inferior courts, statutory tribunals and persons having authority and acting in quasi-judicial manner. He cited Nebedum V Labisis (2000) FWLR (pt 25) 1697 at 1705 para B-C. Prohibition applies to restrain or prohibit proceedings of such courts or statutory tribunals and persons acting in quasi judicial capacity as in the instant case where the 1st Respondent is acting in that capacity whereas he, the 1st Respondent lacks jurisdiction to so act.

Counsel argued that the 2nd and 3rd Respondents were in active connivance with the 1st Respondent to take a decision that will affect the rights of the Applicants whereas they were not part of the arrangements or decision. Counsel insisted that the order of prohibition is the only appropriate remedy available to the Applicants. He cited Ude v. Agu 1961 ALL NLR 65, National Council for Dental Technicians Exparte Neate (1953) 1QB 704 at 707.

Counsel argued that the 1st Respondent was trying to perform a quasi judicial function and ought to be prohibited because he lacked the jurisdiction to conduct any referendum. Counsel insisted that the 1st Respondent had admitted in Paragraphs 7-12 of his counter affidavit dated 20/8/07 that he had intervened to settle the problems between the parties. Counsel submitted that act of intervention was a quasi judicial act. Counsel argued that the court was properly moved to prevent the breach of the 1st Respondent’s powers under the law. He cited Shugaba Abdularman Darman v. Minister of Internal Affairs (1981) 1 NCLR; Dr. Azikiwe v. FEDECO & ors, In Re: Olu Onagoruwa (1979) 3 LRN 286; Holada Hort v. The Mill Government, Rivers State & ors (1996) II SC 211 at 238; Adedeji V Police Service Commission;
Ude V Agu (Supra) and Nebedum V Labisi (2000) FWLR (pt 25) 1697 at 1705.

On this issue, the learned 1st Respondent Counsel argued that in this case, the 1st Respondent whose office is in-charge of Chieftaincy and Town Union Matters in Anambra State received a valid application from the 3rd Respondent who is the President General of Nkerefi Town Union for change of name of the Town to Umuchukwu, but was challenged by the Appellants. The 1st Respondent then invited all the parties and informed them that his office would conduct a referendum and hear from the generality of the people what name they would prefer to answer, “Nkerefi” or “Umuchukwu”, after which the outcome would be forwarded to the State House of Assembly for necessary action.
Counsel further argued that from the evidence on record, the 1st Respondent as the representative of the executive arm of the Anambra State Government in these issues has the Authority to conduct referendum in Nkerefi.

Counsel submitted that the grant or refusal to grant an application of this nature is at the discretion of the court and that in the instant case the trial court dismissed the application after judicially and judiciously considering all processes filed to prosecute the action. He cited L.G. v. Ezemuokwe (1991)3 NWRL Pt 181 pg. 631, Or. 40 r 1(2) of the Anambra State High Court Civil Procedure Rules 2006, Gbadamosi v. Dairo (2007) 145 LRCN Pg. 508 at Pg. 511.

The learned senior counsel for the 2nd and 3rd Respondents submitted that the pivot on which this case revolves is whether the 1st respondent was acting in a judicial or quasi-judicial capacity in his duty of conducting a referendum on whether then name of the community “Nkerefi” should be changed to “Umuchukwu” cited Prof Louis Nwaoboshi v. Military Governor Delta (2003) 11 NWLR Pt. 31 Pg. 305, to urge the view that since an order or prohibition can only lie against a person acting in a judicial or quasi judicial capacity, even if the order were granted, it could not have availed against 2nd and 3rd Respondents who are private citizens. Counsel submitted that a person can only act in a judicial or quasi judicial capacity where he conducts a hearing and renders a verdict. He cited Lagos Judicial Service Commission vs. Katto (2008) 17 NWLR (Pt. 1117) 525 (CA), Nebedum Vs. Labisi (2001)1 NWLR (Pt. 693) 82 at 92, R vs. Electricity Commissioner (1924) 1K.B. 171 at 204-295, R.V. Governor-In-Council, Ex Parte Ojo (1962) 1 All NLR 147, Loloda Hart vs. The Military Governor, Rivers State & ors (1976) 11S.C. 211. Senior Counsel argued that the role of the 1st Respondent was limited to the conduct of a referendum to know the wishes of the people and then report to the person he advises as opposed to conducting a hearing and rendering a verdict.

RESOLUTION
I have to agree with learned senior counsel for the 2nd and 3rd Respondents that the point on which this appeal turns is whether or not the 1st Respondent was about to perform a judicial or quasi judicial act against which an order or prohibition could lie.