1. DISTRICT OFFICER
2. ADIE OKO FOR KUTIA PEOPLE (EX PARTE ETI ATEM) (APPELLANTS)
THE QUEEN (RESPONDENT)
(1961) All N.L.R. 55
Division: Federal Supreme Court
Date of Judgment: 23rd February, 1961
Case Number: FSC/23/1960
Before: Ademola, C.J.F.
In 1955, Adie Oko of Kutia (second appellant above) brought a personal action for damages against a man of Okorotung for felling trees on Adie Oko's lands. The claim was dismissed. On review of that case, the District Officer confirmed the Judgment and the District Officer ordered a survey and plan to be made to show the positions of the lands allocated to the various tenants. The submitted plan was unsatisfactory, and, in 1957, in the same matter the District Officer ordered an interplead of all the claimants to the lands. In 1957 another action in the same Native Court was instituted by the Okorotung people against the Ukpe people asking that the boundary between their lands be demarcated. The parties agreed on the boundary, and the court so fixed it. The District Officer reviewing this case ordered "all interested parties"-the Mgbanage, the Alege, the Ukpe, and the Okorotung-"to interplead", and joined them as parties; on the 17th July, 1957, he awarded the land shown on the plan to the Kutia people-who were not a party to this case-and ordered all Okorotung people on that land to move out and molest the Kutia people within it no more. Under an application dated the 31st December, 1957, the Okorotung people, through Eti Atem, the above applicant, obtained an order nisi in certiorari proceedings to quash the District Officer's order on the ground that he had exceeded his powers under section 28(1)(a).
The High Court discharged the order nisi-(a) on the ground that his action was purely administrative, and (b) on the ground that, in reality and effect, he was setting aside the clan court's Judgment in the later case, and his granting title to the Kutia people was merely incidental.
The Okorotungs appealed.
(1) When reviewing Native Court proceedings under section 28 of the Native Courts Ordinance, the District Officer was determining questions affecting the rights of subjects, and had a duty to act judicially; consequently certiorari would lie as he was functioning as a statutory tribunal.
(2) Certiorari will lie if such a tribunal exceeds its jurisdiction or gives a decision which the High Court conceives to be bad on its face.
(3) Section 28(1)(a) did not admit of joining a person who was not a party to the case under review; and the District Officer exceeded his jurisdiction in so ordering such joiner of parties.
(4) Although an alternative remedy may be available to him, if the application for certiorari is made by a party aggrieved by the tribunal's decision, it ought to be granted ex debito justitiae. There is not, when considering such a case, that general discretion in the court which the court would have when such an application is made by one of the public whose personal rights are not threatened or impaired.
(5) Unless there is something in the circumstances of a case which makes it right to refuse certiorari, the court will, and on principle must, grant it. In the present case, the delay in applying was due to the fact that, as Counsel does not appear in Native Courts, the proceedings had to be copied for Counsel to peruse. By the time this was done, the time for review by the Resident, or for appeal to him, had lapsed. So, it could not be said that the conduct of the applicant disentitled him to relief, or that he acquiesced in the jurisdiction of the District Officer.
Certiorari will be granted when the alternative remedy means going to a tribunal where the applicant is not likely to get help to remedy the injustice done to him. The Resident in this matter would not have been able to deal with the question of law which arose.
Cases referred to:-
R. v. Electricity Commissioners, ex parte London Electricity Joint Committee Co. (1920) Limited (1924)1 K.B. 171; 93L.J.K.B. 390; 130 L.T. 164; 39 T.L.R. 715; 68 Sol. Jo. 188.
R. v. Minister of Health: ex parte Davies (1929) 1 K.B. 619; 98 L.J.K.B. 636; 141 L.T. 6; 45 T.L.R. 345.
R. v. London County Council, ex parte Entertainments Protections Association Limited (1931) 2 K.B. 215; 100 L.J.K.B. 760; 144 L.T. 464; 47 T.L.R. 227; 75 Sol. Jo. 138.
R. v. Patents Appeal Tribunal: ex parte Champion Paper and Fibre Co. (1957) 1 All E.R. 277; 101 Sol. Jo. 131.
R. v. Stafford Justices: ex parte Stafford Corporation, (1940) 2 K.B. 33; 109 L.J.K.B. 584; 162 L.T. 393; 56 T.L.R. 623; 84 Sol. Jo. 499.
R. v. Postmaster-General: ex parte Carmichael (1928)1 K.B. 291; 96 L.J.K.B. 347; 137 L.T. 26; 43 T.L.R. 228.
R. v. Tabrum: ex parte Dash (1907) 97 L.T. 551; 23 T.L.R. 474.
R. v. Wandsworth Justices: ex parte Read (1942)1 K.B. 281; (1942) 1 All E.R. 56; 111 L.J.K.B. 234; 166 L.T. 118; 58 T.L.R. 88.
APPEAL from High Court of Eastern Nigeria.
Aniagolu for Appellant.
Okadigbo for the First Respondent (District Officer).
Araka for the Second Respondent (Kutia people).
The following Judgment was delivered:-
Ademola, C.J.F.:-This is an appeal from the decision of Brown, J. sitting in the High Court of the Eastern Region at Enugu, discharging an Order Nisi for an order of certiorari to quash the Judgment of the District Officer Obudu in his review of a Native Court case in the Utugwang-Ukpe clan court. Civil No. 16/57.
It is important at this stage to state the background which gave rise to this matter. In 1957 the Okorotung people brought an action against the Ukpe people for a boundary to be demarcated between the land of the two and for pillars to be fixed on the land in order to stop further boundary disputes. The Utugwang-Ukpe Clan Court heard the case on the 15th April 1957 and on the 7th May, 1957, the court fixed the boundary by a path which parties themselves voluntarily agreed upon. Apparently both sides were satisfied with the Judgment as such. The District Officer in charge (Mr R. G. Anderson), whose duty it was to supervise all Native Courts in the area, apparently viewed the case with some concern and felt that the case savours of some spurious arrangements between Okorotung and Ukpe in order to squeeze out a third party, known as the Kutia people. He therefore decided, of his own motion, as he was entitled to do, to review the case.
Earlier, and indeed in 1955, in the same clan court there was a case No. 56/55 between Adie Oko of Kutia (second respondent in this matter) and Ojie Idang of Okorotung, the claim being "£10 damages for felling plaintiff's seven palm trees and tapped them at Nwagba two months ago." It was a personal action. That claim was dismissed. The plaintiff was dissatisfied and he applied to the District Officer for a review. The District Officer Mr Anderson reviewed the case, and on the 12th October 1955, confirmed the Judgment of the Native Court which dismissed the plaintiff's claim. In his order on review he, however, ordered parties to deposit monies for a survey of the area to show portion allocated to various tenants. This was in 1955. It would appear that in January or February, 1957 the plans submitted to him were found unsatisfactory by him. They were returned to the surveyor for correction. His notes contained the following:
All interested parties are advised to interplead that is Mgbanage, Alege, Ukpe and Okorotung.
Now, the pith of the whole matter is this. In 1957 when he decided to review, of his own motion, case No. 16/57, the Districts Officer minted as follows:-
Case 16/57 on review (of my own motion as a result of order in case 56/55). Parties present. This is in fact a claim. This in that the boundary is required to be defined. This is the result of the survey and order in case 56/55 (page 94 Land J.B.9). All interested parties were ordered to interplead.
Thus, the District Officer commenced a review of case No. 16/57, an action in a representative capacity, he then joined parties in the case he had disposed of in 1955, case No. 56/55, which was a personal action. He apparently heard the parties he had asked to interplead and joined by him as parties to the suit. After this exercise the District Officer proceeded to write out the history of the whole area as acquired by him from his personal experience of the area, because he formed the view that "the history of this land must be traced back and a decision based on pure equity must be sought." He then proceeded to castigate Okorotung of whom he had "fairly recent experience of their arrogant land grabbing and self aggrandisement tendencies..." Finally, he said, "by reason of their long and peaceful possession of this land and the increasing hostility of their neighbours", he (the District Officer) awarded to the Kutia people the land which was shown on a plan made for the purpose of the review; and, be it remembered, Kutia was never a party to the case in the Native Court. In the penultimate part of his reasoning the D.O. set aside the Judgment of the Utugwang-Ukpe Clan Court in these words:-
Judgment annulled: no costs.
Order: All Okorotung people at present living on the land awarded exclusively to Kutia may harvest existing crops, but will plant no further farms whatsoever. They will remove all houses within six months, that is by January 18th, 1958, and not molest Kutia within this land in any corner whatsoever.
I set out the above order in full in order to show the effect of the review order on Okorotung and the benefit to Kutia who was not a party to the case between Okorotung and Ukpe.
On these facts, Okorotung by their representative, the present appellant, applied for, and obtained, an order nisi for an order of certiorari to quash the Judgment or review order of the District Officer Obudu on three grounds:-
(1) That the District Officer was wrong in law, and it was ultra vires his powers, when he awarded title of ownership to the Kutia people on a claim as it stood in which the Kutia people were neither a party nor did institute a claim for a declaration of title of ownership.
(2) That the District Officer had no jurisdiction to make the order which he made as there was no proper claim before him upon which he could make the order.
(3) That the order of the District Officer was wrong in law in that it was not properly an order which the Native Court could have made on the claim before it and therefore the District Officer exceeded powers conferred on him by section 28(1)(a) of the Native Courts Ordinance Cap. 142 Volume 4 Laws of Nigeria, under which section he was acting.
The learned Judge of the High Court appears to hold the view that the District Officer did not exceed jurisdiction conferred upon him by section 28(1)(a) of the Native Courts Ordinance; that although his functions under thesection was quasi-judicial but, in fact, was purely administrative and therefore the function being administrative, certiorari will not lie. Further, that the order made by him (the D.O.) was in reality and in effect, one setting aside the Native Court Judgment and the title granted to the Kutia was merely incidental. Against these findings the appellant has appealed to this Court.
It seems to me that there are two matters to be considered here and we have heard extensive arguments by Counsel on either side on these points:-
(1) Has the District Officer exceeded his powers or the jurisdiction conferred upon him under section 28 of the Native Courts Ordinance?
(2) If so, was an order for certiorari the appropriate remedy in such a case?
On the first point, the learned Judge of the High Court is of the view that the District Officer has not exceeded his jurisdiction. With this view, with respect, I am not in agreement. It is erroneous to assume, as did the learned trial Judge, that the District Officer, in exercise of his powers under section 28 of the Native Courts Ordinance was performing an administrative act. He was undoubtedly performing a quasi-judicial function; he was acting as a statutory tribunal. Certiorari will lie to persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially-R. v. Electricity Commissioners, Ex parte London Electricity Joint Committee Co. (1920) Limited (1924) 1 K.B. 171, C.A. at pp. 204 and 205. Also R. v. Minister of Health; Ex parte Davies (1929) 1 K.B. 619, C.A.-and it has been held that an administrative body, in ascertaining facts or law, may have to act judicially although its proceedings may not have the formalities of, and be not in accordance with the practice of a Court of Law-see R. v. London County Council, Ex parte Entertainments Protection Association Limited (1931) 2 K.B. 215. C.A. at 233 and 334.
Now, what are the powers conferred upon a District Officer under section 28(1)(a) of the Native Courts Ordinance? The powers are supervisory. The qualifications and conditions of the exercise of his jurisdiction are set out in the Ordinance as follows:-
28. (1) Every Resident and District Officer shall at all times have access to Native Courts both of first instance and of appeal in his province or division, as the case may be, and may of his own motion or, in his absolute discretion on the application of any person concerned:-
(a) review any of the proceedings (save and except a sentence of death) of such Native Court, whether civil or criminal, and may make such order or pass such sentence therein as the Native Court could itself have made or passed:
Provided that the Resident or District Officer shall not increase any sentence of fine or imprisonment or other sentence in any criminal proceeding, or make any order in any civil proceedings to the prejudice of any party in such proceeding without first giving the accused or such party, as the case may be, an opportunity to be heard."
It seems clear to me that this provision does not admit of any "foreign" or third party to the proceedings before the District Officer. By joining other parties to the Native Court case before him, it cannot, in my view, be said that the District Officer was reviewing the case No. 16/57 which he had set out to review. His powers are limited under the Ordinance and anything he did outside of such powers will be an act in excess of his jurisdiction. I find no difficulty therefore in arriving at the conclusion that the decision of the learned trial Judge was erroneous when he held that the District Officer in this case has not exceeded his jurisdiction.
As Goddard, L.C.J., said in the case R. v. Patents Appeal Tribunal, Ex parte Champion Paper and Fibre Co. (1957) 1 ALL. E.R. 227:-
In the opinion of this Court, certiorari will lie to the tribunal if the tribunal exceeds its jurisdiction, and equally if the tribunal gives a decision which the court conceives to be bad on the face of the decision.
I now come to the second question. Will certiorari lie when other remedies are available? Normally, except upon application of the Attorney-General, certiorari will not lie when other remedies are available. Clearly, after the review of the district Officer in this matter, the appellant had a right under section 28(2) of the Native Courts Ordinance to apply to the Resident for a review, or under section 28(7) of the same Ordinance. He had a right of appeal. Although the D.O. made his order on review (it is not certain it was made in presence of parties) on 17th July, 1957, Counsel for the appellant stated that he was not consulted until December, 1957, when time to apply for the Resident's review had expired, although it was still possible to ask for leave to appeal out of time. On account of the delay that might result, it was best, in the circumstances, he said, to apply at once for an order of certiorari.
It has been stated that certiorari is discretionary; it will nevertheless be granted "ex debito justitiae" to quash proceedings which the court has power to quash, where it is shown that the court below has acted without jurisdiction or in excess of jurisdiction-see 11 Halsbury's Laws of England, 3rd Edition,140 at paragraph 265. It has been held by Lord Green, M.R. in R. v. Stafford Justices ex parte Stafford Corporation (1940) 2 K.B. 33 C.A. at 44 that unless there is something in the circumstances of a case which makes it right to refuse the relief sought, the court will grant it, and that that is the way in which the court will and must on ordinary principle exercise its discretion.
In the present proceedings, it seems to me that consideration must be given to the fact that these proceedings started in the Native Court. Counsel do not appear in these courts. After the D.O.'s review, the appellant was in a dilemma. He decided to consult Counsel. He had to obtain record of proceedings in the Native Court as well as the copy of proceedings on review before the District Officer. It is a notorious fact how difficult this operation can be and the time it takes. It therefore cannot be said that the conduct of the applicant disentitled him to relief or that he acquiesced in the jurisdiction of the court below (District Officer), as was so held in R. v. Tabrum, ex parte Dash (1907) 97 L.T. 551.
Again, with respect, this is not the type of case which one would expect a Resident to be in a position to dealwith effectively on appeal. The question of law which arose is certainly not the type intended to be the subject of appeal to a Resident exercising his powers under the Native Courts Ordinance.
Although when an alternative remedy is available, certiorari will not be granted, it is nevertheless granted when that alternative remedy means going to some other tribunal where the appellant is not likely to get help to remedy the injustice done to him-R. v. Wandsworth Justices ex parte Read (1942) 1 K.B. 281 at 285; (1942) 1 ALL E.R. 56 at 58. And it has been held that if the application is made by the party aggrieved and not merely by one of the public, although there is an alternative remedy available, nevertheless, the order should be granted "ex debito justitiae." The point was considered by Avory, J. in the case R. v. Postmaster General: ex parte Carmichael (1928) 1 K.B. 291. At 299 of the report the learned Judge said:-
I have, throughout the argument, certainly entertained the view that the section gives the applicant all the relief which she can require, and that she might under that appeal section have the matter determined by the medical referee, whose decision would be final as to whether she is in fact suffering from this disease. But even if that remedy is open to her, it is undoubtedly good law that if the application for a certiorari is made by a party aggrieved, then it ought to be granted ex debito justitiae, and the court has not the general discretion which it would have when the application is made by one of the public who is not personally concerned. That was decided long ago in the case of Reg. v. Surrey Justices (1870) C.R. 5 Q.B. 466; and on that principle, even although she has the remedy by appeal in this case, I am prepared to agree that the certiorari should go, seeing that the application is being made by the applicant as the party aggrieved.
Now, it is clear that it is of the utmost importance that the court should act to prevent an injustice being done when the remedy sought is within its powers to grant. This to my mind is one of such matters in which the court should act. The High Court has an inherent power, unfettered by statute, to control inferior tribunals in a supervisory capacity. Such control is by means of certiorari to keep the inferior tribunal within the law, within bounds and within such jurisdiction as the legislature deemed fit to confer upon it.
For these reasons, I consider the learned Judge of the High Court was clearly wrong in refusing to make absolute the order the appellant sought.
I would therefore allow this appeal. The case will be sent back to the Enugu Division of the High Court of the Eastern Region with direction that the Order of Certiorari should go and that the review order dated 17th July, 1957 of the District Officer, Obudu, made in suit 16/57 in the Utugwang-Ukpe Clan Court be quashed.
The court below to carry out this order.
The appellant is entitled to the costs of this appeal assessed at 40 guineas. He is also entitled to costs in the court below which are assessed at 30 guineas. If costs of 20 guineas awarded against him in that Court had been paid, it is to be refunded.
BRETT, F.J.:- I concur..
UNSWORTH, F.J.:- I concur..