(1961) All N.L.R. 90


Division: Federal Supreme Court

Date of Judgment: 21st March, 1961

Case Number: FSC 173/1960

Before: Brett, F.J.J.

             Taylor, F.J.J.

             Bairamian, F.J.J.


The High Court (Western Region) issued a writ of mandamus to compel the Are of Ire to approve the above respondent as Esa of Ire; and the Are so approved him. The above appellant appealed against the High Court decision, and the Federal Supreme Court set aside the writ on the ground that, having regard to the laws of the Western Region, the writ had been issued without jurisdiction, adding, however, that the respondent would continue to be the Esa as if he had been voluntarily approved, and that the appellant must take such steps as might be open to him to have the respondent removed from the office: (See Layanju v. Araoye, 4 FSC, 154, at p.161.)

The appellant applied to the High Court for an order to rescind the Ares' approval; his application was refused. He appealed upon the ground that his application was, in effect, to enforce the Federal Supreme Court's Judgment under section 4 of the Appeals Ordinance; and that what the court added to its Judgment was an obiter dictum or, in the alternative, a decision given per incuriam.


(1) The court made that addition to its Judgment deliberately because of the argument in the previous appeal that, if the appeal succeeded, the appellant would be entitled automatically to resume the office of Esa.

(2) Mandamus to compel a person to perform an act presupposes that that person has both the power and the duty to perform the act: and the act must be one which he could do of his own volition.

(3) A decision that Mandamus was issued without jurisdiction is technical. It does not decide that the act ought not to have been done. The propriety of the approval given to the appointment of the respondent to be the Esa had not been in issue in the previous appeal, and that approval could not be rescinded in these proceedings.

Appeal dismissed.

Cases referred to:-

Young v. Bristol Aeroplane Co. Limited (1944) K.B. 718; (1944) 2 All E.R. 293; 113 L.J.K.B. 513; 171 L.T.113; 60 T.L.R. 536; 88 Sol. J. 332; affd. (1946) A.C. 163.

Osumanu v. Seidu, 1949, 12 W.A.C.A., 437.

Lagunju v. Olubadan in Council, 12 W.A.C.A., 233 and 406.

APPEAL from the High Court (West)

Adekunle for Appellant.

Thanni for Respondent.

Brett, F.J.:-This matter first came before the court by way of an appeal brought by the present appellant, Layanju, from the decision of the High Court of the Western Region making absolute a rule nisi for a writ of mandamus to compel Ezekiel Taiwo, the Are of Ire, to give his approval to the appointment of Emmanuel Araoye as the Esa of Ire according to native law and custom. The appeal was allowed, the writ of mandamus was set aside and the rule nisi was ordered to be discharged as having been granted without jurisdiction, by virtue of the Appointment and Recognition of Chiefs Law, 1954, and the Chiefs Law, 1957. Towards the end of the Judgment, after the reasons for holding that the jurisdiction of the courts was ousted had been set out, the following passage occurs:-

If the court below had no jurisdiction to entertain the application, the appeal must be allowed, but I would point out that the success of the appeal will have no immediate effect on the status of the parties. In the course of the argument Mr Adekunle expressed the view that if the appeal succeeded his client would be entitled automatically to resume the office of Esa. It must be clearly understood that this is not so. Araoye will continue to occupy the office as if the Are had recognised him without the compulsion of a writ of mandamus, as it would appear that the Are was in fact willing to do. If the appellant wishes to regain the office he must take such steps as may be open to him to have Araoye removed and himself reinstalled.

The Judgment containing this passage was delivered on the 27th July, 1959, and on the 8th August, 1959, Layanju filed a Notice of Motion in the High Court, asking for an order setting aside or rescinding the approval given by Ezekiel Taiwo to the appointment of Emmanuel Araoye as the Esa of Ire in accordance with the writ of mandamus and all acts or things done in pursuance thereof. The motion was dismissed and Layanju now appeals against that dismissal.

Mr Adekunle, who appears for Layanju, submits that the order asked for is the inevitable consequence in law of the setting aside of the writ of mandamus, and that in applying to the court below to make the order he was, in effect, inviting it to enforce the Judgment of this Court in accordance with section 4 of the Federal Supreme Court (Appeals) Ordinance (Cap. 67 of the Laws of the Federation, 1958). However, since his application involved asking the court below to hold that a consequence flowed from the Judgment of this Court, which, in the passage cited above, this Court had expressly said did not flow from its Judgment, it is hardly a matter for surprise that the court below refused to grant the application. In the present appeal Mr Adekunle is faced with the task of persuading this Court first that the passage cited from its earlier Judgment was wrong and secondly that if it was wrong it is open to the court to overrule it and enforce its earlier Judgment by making the order he seeks.

In an endeavour to do this, Mr Adekunle has submitted that the passage cited was no more than an obiter dictum, or in the alternative that the decision it contains was made per incuriam, within the meaning given to that expression in Young v. Bristol Aeroplane Co. Limited, (1944) K.B. 718, a decision of the Court of Appeal in England which was applied by the West African Court of Appeal in Osumanu v. Seidu (1949) 12 W.A.C.A. 437, and which has been followed by this Court also. It is true that the passage does not contain or purport to contain the ratio decidendi of the Judgment as a whole, but it appears from the words of the passage itself that the effect of a Judgment allowing the appeal had at least been referred to in the course of argument, and I do not consider that a statement by the court as to the direct effect of its own Judgment can be brushed aside as a mere obiter dictum. Nor do I consider that, even if the statement concerned was wrong, it can be said to have been made per incuriam, so as to entitle the court to reconsider it. Mr Adekunle has submitted that the court failed to take note of the previous decision of the West African Court of Appeal in Lagunju v. Olubadan in Council 12 W.A.C.A. 233 and 406, but since that decision is referred to in an earlier part of the Judgment of this Court it is impossible to uphold this submission.

If the passage cited contains a binding decision of this Court, that is an end of the matter, but no reason was given for the ruling that the effect of the Judgment was restricted in the manner stated. Mr Adekunle's submission, that anything done in compliance with a writ of mandamus which was issued without jurisdiction must be treated as a nullity, has a certain plausibility and I think the appellant is entitled to know why it cannot be accepted.

We are faced here with the peculiar nature of the writ of mandamus. The writ is issued to compel a person to perform an act which he has a public duty to perform; and it presupposes that he has the power to perform that act. If that person has performed his duty, it is immaterial whether he did so of his own volition or in compliance with a writ of mandamus: in either case it was his duty that he performed. Consequently, it does not follow that, when a writ of mandamus is set aside on appeal on the ground that it was issued without jurisdiction, an act done in compliance with the writ should automatically be set aside: for the decision to set aside the writ is purely technical: it is not a decision that the duty does not exist, or that the act done is one which ought not to have been done. Those matters were not in issue in the previous appeal, and the earlier Judgment of this Court had no bearing either on the existence of the duty, or on the propriety of the act done by the Are. I tried to make that clear in the passage cited from the earlier Judgment, in which I concluded by saying that:-

If the appellant wishes to regain the office he must take such steps as may be open to him to have Araoye removed and himself reinstalled.

Mr Adekunle says that his motion in the court below was such a step; but in my opinion, for the above reasons, it was not a step open to him in these proceedings. If we were to make an order setting aside the approval given by the Are to the appointment of Emmanuel Araoye as the Esa of Ire, we should in effect be deciding that the Are ought not to have approved that appointment, but that question has never been argued before the courts.

I think that the motion was rightly refused in the court below, and this appeal must fail.

There was a further appeal against the costs of 30 guineas awarded in the court below. I agree that these were excessive for a matter which was disposed of in one day, and while dismissing the appeal against the refusal of the motion I would reduce the costs awarded in the court below to 10 guineas. I would award the respondent costs of this appeal assessed at 10 guineas.

Taylor, F.J.:- I concur.

Bairamian, F.J.:- I concur.

Appeal dismissed.