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What is ‘writ of Certiorari’?

By Bamidele Kolawole

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A Writ of Certiorari is a legal order issued by a higher court (e.g., the Court of Appeal or Supreme Court) to a lower court (e.g., High Court or Magistrate Court) to review a decision or judgment made by the lower court. It is a remedy used to correct errors or excesses of the lower court, ensuring that justice is served. In Nigeria, the Court of Appeal has the power to issue a Writ of Certiorari under Section 243 of the 1999 Constitution, as amended.

Olubunmi Akinseye Esq

The commencement of Legal actions before a formal Law Court takes different forms, depending on so many factors, such as; the type of Court, the subject matter, the issue/ cause of action etc. A WRIT OF CERTIORARI, strictly speaking cannot be said to be a general way of commencing a matter in court, however, it is a special WRIT, seeking for more information.

It is a way, by which the applicant seeks better information from a Court based on the official Record of that very Court, for the purpose of clarification.

For example when CERTIORARI is desired here in our Jurisdiction, the Applicant can come by way of Originating Motion. The WRIT OF CERTIORARI, in practice, is the way through which an Appellate Court, while exercising its discertion, directs a lower Court to Provide, or make available, Record of the lower Court in respect of an extant case that is pending presently before the Appellate Court for review.

The result of WRIT OF CERTIORARI, is the ORDER OF CERTIORARI, which means  that, the person or institution against whom the ORDER is made, must provide information by way of presenting Documents or some Record Books.

Ilemobayo Akinbote Esq

Certiorari is a judicial remedy available to a party in a case to review the order or judgement of the higher court to quash the decision or order of the lower court.

This judicial review of the decision of the lower court by the higher court is embedded in various rules of courts of the states.

It is a judicial remedy available to a party who feels that there has been a judicial misnomer, especially by the lower court. The word certiorari simply means to quash.

For instance, where the Magistrate Court does anything that’s wrong procedurally or where a defective charge is brought before it or where it delves into an arena it supposed not to, a judicial remedy can be invoked by filing a motion for judicial review.

In this case, the higher court is called upon to review the actions of the lower court and where necessary, quash the action of the lower court.

This remedy is only available against judicial actions. It is to bring the actions of the lower court for the purpose of quashing it.

Amoo Babatunde Oluwaseun Esq

The writ of certiorari is usually issued to quash the decision of the inferior Court where the inferior Court has acted in excess of its jurisdiction or departed from the rules of natural justice.

Where an inferior Court also takes into account matters which is not directed to take into account or asks itself the wrong questions the writ of certiorari will be issued by the superior court to quash its decision.

If there is absence of the formalities or things which are condition precedent to the tribunal having any jurisdiction to embark on an inquiry writ of certiorari will be issued by the inferior Court to quash its decision. See Exparte Eduvie 3 LRN page 382 at 401.

The decision of the statutory or administrative body that is performing quasi-judicial function may also be quashed by certiorari. See Exparte Eduvie where the decision of the public service commission of the Bendel State dismissing the applicant from the service of the Bendel State was quashed on the ground that the public service commission relied on the report of the secretary to the state government instead of that of the permanent secretary to the state government and Solicitor General, ministry of justice who was the head of department of the applicant.

The writ of certiorari will be issued where the applicant is not furnished with detailed allegation against him to enable him prepare his defence before decision is taken by the disciplinary Committee or body.

The applicant must know his accuser and the evidence to be given against him. If the allegation is in writing, he must be given a copy of the written allegation. See Adedeji vs. Police service commission (1967) 1ALNR page 67 where the dismissal of the appellant from the police by the police service commission was quashed by a writ of certiorari on the ground that the appellant was not given a copy of the written report against him.

Also see Denloye vs. Medical and Dental Practitioner Disciplinary Committee (1968) 1ALLNLR page 306 where the decision of the Medical and Dental Practitioner Disciplinary Committee striking out the name of the applicant as a medical doctor on the ground that he was not given a copy of the written complaint against him and that the tribunal was in error  by admitting a fresh exhibit after the case had been closed.

A statutory or administrative body that is performing quashed quasi-judicial function must give adequate notice to people that will be affected by their action or decision on any issue that is within their jurisdiction and where adequate notice has been given its decision may be quashed by writ of certorari. See Okupe vs. Federal Board of Inland Revenue (1974) 1AllNLR part 1page 31.

Where a statutory or administrative body has laid down its own rules of procedures the rules of procedure must be followed and observed. If oral hearing is required it must be complied with. Adedeji vs. Police service commission.

If there is error in the proceeding of an inferior Court or tribunal writ of certiorari can be issued to quash the decision of the inferior Court or tribunal.  See state vs. Facade (1971) 2AllNLR page 229 where the conviction of the appellant’s fir trespass by the Magistrate court was quashed on the ground that the Magistrate court has violated the rules of natural justice by not asking the applicants whether they wanted to call witness or give evidence in their own defence after the close if the case of the prosecution.

A Statutory or administrative body that is performing quasi-judicial function cannot assume jurisdiction where the matter before it involves allegation of crime against an applicant. The criminal aspect of the case must be referred to the regular court for adjudication. See Garba vs. University of Maiduguri (1986) 2SC page 128

LIMITATION OF CERTIORARI

Certiorari has several defects as a means for the enforcement of the fundamental rights. It is only available to change a judicial or quasi judicial function. The court’s powers of relief are limited to quashing the decision and do not extend to granting an injunction or other order for the prevention of further infringement of a right.

Where fact are in dispute or likely to be in dispute certiorari will not lie. Where breach of fundamental rights is being defended on the ground of maintenance of law and peace certiorari will not be the appropriate remedy and it is better to come to court by way of declaratory relief. See Akande Araoye and others (1968) 1AllNLR page 214 at 218.

Certiorari is also not an appropriate remedy for challenging the validity of legislation or a document in need of construction.

Femi Adetoye Esq

The issuance of an order for certiorari was illustrated in the Nigerian case of Jamaare v Jamaare & Ors (2022) LPELR-57113 (CA),wherein the Sharia Court in a civil proceeding directed that the appellant be arrested and detained in prison custody on account of his failure to show up in court on a later date despite the resolution of their disputes as embodied in their terms of settlement duly executed by them and adopted in court.

Under certiorari, the High Court will consequent upon an application brought by a litigant call up the decision of the inferior court/tribunal/authority order that it may be investigated.

The appellant who was aggrieved applied to the High Court of Bauchi State for judicial review, but the Court refused the application.

The appellant further appealed to the Court of Appeal and the conclusions of the High Court were set aside and quashed by the court of Appeal.

Clearly, the court doesn’t just adjudicate, but performs other roles including serving as watch dogs to curb the excesses of inferior courts and statutory bodies who act ultra vires.

And the more such bodies are put on check and/or called to order, the better for the society and the rule of law.

Oluwanbe Adefehinti Esq

In common-law jurisdictions, a writ of certiorari is issued by a superior court, vested with appellate jurisdiction, to facilitate a judicial review of the proceedings and decisions of an inferior court, with a view to determining whether the latter has exceeded its jurisdiction or erred in law.

Furthermore, an appellate court may issue a writ of certiorari to procure the record of a pending case, thereby enabling a comprehensive examination of the issues in controversy and a judicious disposition of the appeal.

Certiorari is a legal remedy that allows the High Court to review and potentially overturn decisions made by lower courts, tribunals, or administrative bodies. Its primary purpose is to ensure that these bodies have acted within their jurisdiction and followed the law.

In the case of Onwumechili v Akintemi, students from the University of Ife’s Faculty of Law were suspended without notice or a fair hearing.

They sought an order of Certiorari to nullify the suspension, arguing that the Vice Chancellor had failed to follow the principles of natural justice.

The trial court and Court of Appeal ultimately sided with the students, granting the relief sought and upholding their contention that the suspension was unlawful.

Obada Toyosi Charles Esq

A Writ of Certiorari is a legal order issued by a higher court (e.g., the Court of Appeal or Supreme Court) to a lower court (e.g., High Court or Magistrate Court) to review a decision or judgment made by the lower court. It is a remedy used to correct errors or excesses of the lower court, ensuring that justice is served.

In Nigeria, the Court of Appeal has the power to issue a Writ of Certiorari under Section 243 of the 1999 Constitution, as amended. This writ is often used to:

– Quash (set aside) a decision or judgment

– Prohibit (prevent) a lower court from proceeding with a case

– Mandate (order) a lower court to take a specific action

“A Writ of Certiorari is a discretionary remedy granted by a superior court to review the decision of a lower court or tribunal, exercising supervisory jurisdiction over the decision, to correct errors of law or excess of jurisdiction.” – Supreme Court of Nigeria, in the case of Adeyemi v. Opeyemi (2018) LPELR-44271(SC)

“The Writ of Certiorari is a prerogative writ, which lies against the decision of an inferior court or tribunal, where such decision is shown to be erroneous on the face of the record, or where the court or tribunal has acted without jurisdiction.” – Court of Appeal, Nigeria, in the case of Afolabi v. Ayoola (2019) LPELR-46343(CA).

Jerry Adeyogbe Esq

In law, administrative remedies are available to any litigant who is aggrieved of the improper use of powers or actions taken against him by any public institution. Where such happens, such litigant can apply to a superior court to call to order such branch of government. Additionally, a person may resort to other institutions or procedures when aggrieved by an administrative decision.

Accordingly, administrative remedies may be classified into: (a) Judicial remedies (hereinafter referred to as “Judicial review”) and (b) non-judicial remedies.

This discourse would however, be restricted to Judicial review.

Judicial review is basically the supervisory powers exercised by a superior court over the lower court or an arm of government to re-examine it’s decisions with the aim of validating or invalidating as the case may be where such branch of government has acted ultra vires in the performance of its functions.

Some of the remedies available to a litigant for the judicial review of the decisions of the lower courts and other public institutions include: (a) appeals, (b) prerogative orders consisting of certiorari, prohibition and mandamus (c) equitable remedies comprising injunctions and declarations (d) Ordinary remedies that is damages.

Historically, prerogative orders are equitable remedies available to the crown and not the subjects. The crown used it to ensure that public authorities carried out their functions so their main function was to ensure efficiently and maintain order in statutory authorities or tribunal of all kinds. Later around the 16th century, there became available to ordinary English citizens also seeking to enforce public duties.

 Certiorari which is the crux of this discourse and a form of prerogative order is a discretionary order issued by the court, in most cases, the High Court to quash a decision which is ultra vires either in breach of the rules of natural justice or procedural defects.

 Under certiorari, the High Court will consequent upon an application brought by a litigant call up the decision of the inferior court/tribunal/authority order that it may be investigated.

 However, under the Ondo State Law, such application must be brought within 3 months of the date of the occurrence of the subject of the application. See Order 22 Rule 4 of the Ondo State High Court (Civil Procedure) Rules, 2019 (hereinafter referred to as “the rules”)

 Ordinarily, a party applying for judicial review for certiorari must seek the leave of the court by way of a motion ex parte before the consideration of the main application for certiorari brought by way of a motion on notice or originating summons as the case may be. See Order 22 Rule 3 & 5 (1) of the Rules.

However, where leave is sought to apply for an order of certiorari to quash any judgment, order, conviction or other proceedings, which is subject to appeal and a time is limited for the bringing of the appeal, the court may adjourn the application for leave until the appeal is determined or the time for appealing has expired. See Order 22 Rule 3 (5) of the Rules.

The issuance of an order for certiorari was illustrated in the Nigerian case of Jamaare v Jamaare & Ors (2022) LPELR-57113 (CA),wherein the Sharia Court in a civil proceeding directed that the appellant be arrested and detained in prison custody on account of his failure to show up in court on a later date despite the resolution of their disputes as embodied in their terms of settlement duly executed by them and adopted in court. The appellant who was aggrieved applied to the High Court of Bauchi State for judicial review, but the Court refused the application.

The appellant further appealed to the Court of Appeal and the conclusions of the High Court were set aside and quashed by the court of Appeal.

Clearly, the court doesn’t just adjudicate, but performs other roles including serving as a watch dogs to curb the excesses of inferior courts and statutory bodies who act ultra vires.

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What is ‘writ of Certiorari’?

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