UNIVERSITY OF IBADAN, IBADAN

FACULTY OF LAW
DEPARTMENT OF PUBLIC LAW

COURSE TITLE: LPU 502: ADMINISTRATIVE LAW II (2ND SEMESTER LECTURE

NOTES)

Prepared by: Dr. S. Akinlolu Fagbemi (Reader), FIPMD, AISDS, AICMC

A. JUDICIAL REMEDIES
Introduction.
Every party who files a lawsuit seeks a remedy. Remedies are the reliefs, which the court will grant in
consequence of the unconstitutional acts of the government or conduct of an individual. These
socially or legally accepted reliefs or remedies provide necessary succor (to give aid) against
unlawful, illegal or unconstitutional acts or omissions. One of the purposes of instituting an action in
court is to obtain remedy for a wrongful act done to the complainant or to restrain the doing of an act
which in effect could lead to an irreparable loss or damage to the party seeking remedy. Any good
legal system produces efficient remedies which are regarded with utmost importance to the
administration of justice.
A Remedy can be described as the means of enforcing a right or preventing or redressing a wrong;
legal or equitable relief1. This can also be termed as civil remedy.
A remedy has also been described as “...anything a court can do for a litigant who has been wronged
or is about to be wronged. The two most common remedies are judgments that plaintiffs are entitled
to collect sums of money from defendants and orders the defendants to refrain from their wrongful
conduct or to undo its consequences. The court decides whether the litigant has been wronged
under the substantive law; it conducts an inquiry in accordance with procedural law. The law of
remedies falls somewhere between substance and procedure, distinct from both but overlapping with
both.”2

Classifications of Remedies

1
Byrant Garner, Black’s Law Dictionary (8th ed USA: Thomson West 2004)
2
Douglas Laycock, Modern American Remedies 1 (3rd Ed.) 2002
Remedies fall into various classes and categories. These classifications are not limited to Nigeria
alone as they also cut across the United Kingdom and the United States of America. While some of
them are relevant to the Nigerian law, some of them are not as they are only relevant in other
jurisdictions as stated above. The categories of remedies include the following:

a. Legal Remedies: These are common law remedies. They are remedies that are provided for at
common law and originated from common law. They are remedies that are historically available in a
court of law, as distinguished from remedies historically available in equity.

b. Equitable Remedies: These are remedies that are usually non-monetary in nature and are granted
when the available common law remedies, such as damages cannot adequately redress the injury.
Historically, an equitable remedy was only available in a court of equity. Examples of remedies in this
category include injunctions and specific performance.

TYPES OF REMEDIES
There are several types of remedies that can be granted to an aggrieved party in a civil action by the
court. These remedies are numerous and also differ based on the type of wrong committed and on
the aspect of law that covers the cause of action that gave rise to the dispute. However, there are
some remedies that cut across virtually every aspect of law and they can be granted by the courts in
almost every civil dispute. Remedies in Civil litigation can be grouped into public law remedies and
private law remedies. The two discussed hereunder:

A. Prerogative Orders / Public Law Remedies

These are orders that were originally brought by the king against his officers to compel them to
exercise their functions properly or to prevent them from abusing their powers 3. They are remedies of
public law and will not lie to control the activities of private bodies or domestic tribunals nor will they
lie to control the activities of the High Court.4 These orders include: Certiorari, Mandamus,
Prohibition, and Habeas Corpus.

3
Greer Hogan Constitutional and Administrative Law in a Nutshell, (3rd ed. Sweet & Maxwell 1993) 87
4
R v. Visitors to the Inns of Court, ex p. Calder (D.C, 1992)
 1. CERTIORARI
The Nature and Scope of Certiorari
Certiorari is a Latin term being in the present passive infinitive form of the word ‘ certiorare’ which
means to ‘inform.’ The actual words in the writ were ‘ certiorari volumus’, which translates that, ‘we
wish to be informed.’5
The order of certiorari, formerly known as writ of certiorari or commonly referred to as ‘certiorari’ was
used to express the King’s readiness to be informed of grievances of his subjects. It was a royal
demand for information.6 It is usually issued by a superior court to command an inferior court or
tribunal to certify the record upon which that inferior court or tribunal base its decisions be it judicial
or quasi-judicial.
The aim and purpose of certiorari is to ascertain the legality of the decision of the inferior court or
tribunal and if it is not according to law, or if the decision is prejudicial, the decision would be
reviewed and quashed.
The underlying policy behind this remedy is that all inferior courts and authorities have only limited
jurisdiction and powers and must be kept within their legal bounds. Certiorari is used to bring up into
the High Court the decision of inferior courts or authority in order that they may be investigated, that
is looking into the legality of decisions reached by an inferior court or tribunals or bodies.
Order of Certiorari is a mean to check and balance the powers of inferior courts or tribunals or bodies
not to exceed their powers or jurisdiction in the interest of the general public. The order is resorted to
mainly for the control of inferior courts and statutory tribunals. The scope of application of writ of
certiorari was indicated in the dictum of Atkin L.J. in the case of R. v Electricity Commissioners
(1924) 1 K. B. 171 at 205, where he stated that:
The writ of certiorari is invoked whenever a body of persons having legal authority to
determine questions affecting the rights of subjects and having the duty to act
judicially, acts in excess of their jurisdiction.7

5
Shivangi M. Rana 2013, Role of Writs in the Administrative Law. Retrieved May 1, 2016 from
www.legalservicesindia.com
6
R v. Manchester Legal Aid Committee Ex-parte Brand (1952) 2 Q.B. 413.
7
See also Onuzulike VS. CDS Anambra State (1992) 3 N.W.L.R (Pt. 232) 791
Lord Chancellor Viscount Simon in Ryots of Garabando and others v. Zamindar of Parlakimedi &
anor (1943) A.I.R. PC 164 captured the nature and scope of the order of certiorari as follows:
The ancient writ of certiorari in England is an original writ which may issue out of a
superior Court requiring that the record of proceedings of an inferior court be
transmitted into the superior court to be dealt with. The writ is so named because, in
its original Latin form, it required that the King should “be certified” of the proceedings
to be investigated, and the object is to secure by the exercise of the authority of a
superior court that the jurisdiction of the inferior tribunal should be properly exercised.
This writ does not issue to correct purely executive acts, but on the other hand, its
application is not narrowly limited to inferior courts in the strictest sense. Broadly
speaking, it may be said that if the act done by the inferior body is a judicial act, as
distinguished from being a ministerial act, certiorari will lie. The remedy in point of
principle, is derived from the superintending authority which the Sovereign superior
courts, and in particular the court of King’s Bench, possess the exercise over inferior
jurisdictions. This principle has been transplanted to other parts of the King’s
dominions, and operates, within certain limits…

In Nigeria, the prerogative writ of certiorari has its root in Section 272(2) of the Constitution of the
Federal Republic of Nigeria 1999 (as amended) and well enshrined in the various State High Court
Laws8. In Re: Lawal Unreported S.C/80/2004, Mahmud Mohammed, JSC while delivering the lead
judgment said as follows:
The law is well settled that the Prerogative Writ of Certiorari is available under our
1999 Constitution in Section 272(2) and the various High Court Laws and the State
High Court Civil Procedure Rules to empower the various High Courts to act as watch
dogs over judicial activities of inferior Courts or Tribunals. The process is meant to
provide a supervisory process to keep in check the excesses and arbitrariness of
such Courts.

8
See Order 40 of the Lagos State (Civil Procedure) Rules 2012 and Order 40 Oyo State High Court (Civil Procedure)
Rules, 2010
In allowing the appeal, the learned Justice of the Apex Court pointed out the circumstances under
which it will be appropriate to come by way of a writ of certiorari:
For the order of the writ of certiorari to bring the proceedings of an inferior court
before the High Court to be quashed, the fact that the evidence on record has
disclosed a case against the applicant, is totally irrelevant, provided on the face of the
record of the inferior Court, lack of or excess of jurisdiction or breach of the rule of
natural justice and errors of law on the face of the record, are apparent to justify
granting the order of certiorari to quash the entire proceedings complained of by the
application.

Therefore, certiorari is employed to quash the decisions of inferior tribunals given in excess of their
jurisdiction or without jurisdiction, in contravention of natural justice or fair hearing or where there is
an error of law. It lies to bring decisions of an inferior court, tribunal, public authority or any other
body of persons before the High Court for review so that the court may determine whether they
should be quashed or to quash such decisions.

It should be noted that one of the characteristics of certiorari is that it is a discretionary remedy, that
is, it cannot be invoked as of right and like any other prerogative remedy the applicant will apply ex-
parte for leave to apply for it. Certiorari is essentially a disciplinary or a supervisory process in that it
is issued in the name of the state on the motion of some interested or aggrieved persons.

GROUNDS UPON WHICH THE ORDER OF CERTIORARI MAY BE SOUGHT

There are three major grounds upon which the order of certiorari would be available to an applicant.
They are as follows:

a. Lack of or Excess of Jurisdiction

The factor of jurisdiction is a very important thing to note in the institution, prosecution or presiding
over of a matter. If a court or tribunal lacks jurisdiction, it may be as well compared to a building
without foundation. Jurisdiction in this context is seeing as the measure of power given to inferior
courts or tribunals or body having legal authority to determine a particular matter or issue.
Jurisdiction maybe lacking if the tribunal is improperly constituted, or if essential preliminary
requirements have been disregarded, or if the proceedings are otherwise improperly constituted, or if
the tribunal is incomplete to adjudicate in respect of the parties, the subject matter or the locality in
question, or if the tribunal although having jurisdiction in the first place, proceeds to entertain matters
or make an order beyond its competence.

In the case of Garba & Ors v University of Maiduguri (1986) 1 All NLR 140, The Supreme Court had
no difficulty holding that the University disciplinary panel had exceeded its jurisdiction. The panel had
been set up to investigate alleged acts of looting and arson against demonstrating students. The
students were found guilty and several amongst them including Garba, were rusticated. They filed
this action seeking their reinstatement. They argued that the panel upon whose recommendation
their dismissal was based had exceeded its lawful brief by arrogating to itself the functions of a court
of law. The Supreme Court invoked certiorari to quash the panel’s decisions.

Note that a lack of jurisdiction must be proved by affidavit evidence unless the jurisdictional defect is
patent. Note also that a tribunal does not go beyond its jurisdiction merely by making a decision that
is erroneous in law or fact. But if the tribunal’s error relates to a collateral or preliminary matter upon
which its jurisdiction depends, or if it falls into error through asking itself and answering the wrong
question or through applying a wrong legal test or taking irrelevant considerations into account or
disregarding relevant issues.
The order of certiorari will issue to declare the illegal act void or contrary to law or to declare its acts
as one exercised in excess of its power and therefore void ab initio. See the case of Resident of
Ibadan v Lagunju 14 WACA 549

b. Error of Law on the face of the Record

Certiorari would issue to quash the decision of a statutory administrative tribunal for error of law on
the face of the record, although the tribunal may not be a court of record and although the error did
not go to the jurisdiction of the tribunal.9

9
See the case of R. v Norhthumberland Ex-parte Shaw (1951) 1 K.B 711
It is the general rule that the error of law committed must be one that is very apparent in the record. 10
But to this general rule, there are some exceptions, one of which is that when the ground upon which
the order of certiorari is sought is upon breach of the rules of natural justice, the error of law need not
be apparent on the face of the record.
Instances of error of law on the face of the record may include rejection of admissible evidence or
admission of inadmissible evidence. See R v Industrial Injuries Commissioners, ex-parte Ward
(1965) 2 Q.B 112 or where a magistrate ought to read and explain charges to an accused person
according to section 215 and section 218 of the Criminal Procedure Act but omitted to do so. See the
case of State v A.G. Chief Magistrate ex-parte Mathew Elese and Ors (1973) E.C.S.L.R 967.

c. Breach of Rules of Natural Justice

The principle of natural justice demands not only that those whose interests may be directly affected
by an act or decision should be given prior notice and an adequate opportunity to be heard, but also
that the tribunal should be disinterested and impartial.
It is noteworthy that decisions affecting the rights of the citizens must not be made a subject of
ridicule, but that before any person’s right is made, ascertained or determined, such person(s) should
be given a fair hearing (audi alterem patem) and the decision maker(s) must not be a party or parties
to the dispute in question, or otherwise be biased (nemo judex in causa sua).
For instance, Lord Hewart in R. v Sussex Justices, ex-parte Mcarthy (1924) 1 KB 256 stated that
“Justice should not only be done, but should manifestly and undoubtedly be seen to be done.”
Two principles form the founding pillars of natural justice; (1) Nemo judex in causa sua and (2) Audi
alterem patem.
Nemo judex in causa sua simply means that a man must not be a judge in his own case. This
principle is very germane in the dispensation of justice because of the possibility of partiality and
unfairness which may destroy public confidence in the decision-making process of the court or the
administration. In essence, this means that an individual who is a party to a dispute or who acted as
a prosecutor cannot take part in the decision.11
10
Queen v Lieutenant Governor Eastern Region ex-parte Okafor Chiagbana (1957) W.N.L.R.135 where it was stated
that “it is of course well settled that when it is sought to quash a decision by means of writ of certiorari on the grounds
of error of law, the error must be apparent on the face of the record.”
11
See Dr. Alakija v Medical Disciplinary Committee (1969) 1 N.W.L.R. p.550; Yusuf Garba vs. University of
Maiduguri (supra).
In Gani Fawehinmi v Legal Practitioners Disciplinary Committee (1985) NWLR (pt.7) 300, a High
Court issued an order prohibiting the disciplinary committee from sitting over charges preferred
against the applicant. The applicant contended that the body as constituted could not give him a fair
hearing on the ground that the Attorney General who is prosecuting the charge through one of his
subordinates was also statutorily the chairman of the disciplinary committee.
The right to fair hearing or fair trial includes opportunity to defend oneself in person or by a counsel
of his choice.12 A real likelihood of bias must be made to appear not only from the facts ascertained
by the party complaining, but from such further facts as he might readily ascertain and easily verify in
the course of his enquiries.

WHEN AND TO WHOM THE ORDER OF CERTIORARI MAY LIE

Generally, the order of certiorari could be issued only to a body having ‘legal capacity’ or having a
duty to act judicially. It is observed that it is not in all cases that this basic rule or principle is
applicable. In some instances, it may be difficult to ascertain whether a body is acting in a judicial or
quasi-judicial capacity or administratively.13
The law is that the prerogative writ of certiorari apply only against the acts and decisions of bodies or
persons exercising judicial and quasi-judicial authority affecting the rights of people, which makes it
mandatory for them to act fairly, and in respect of acts performed or decisions taken by them in that
capacity. They do not lie against executive or legislative acts, or mere administrative acts, because
such acts are not performed or expected to be performed in accordance with the rules of fair
hearing.14

A judicial or quasi-judicial action is a term applied to the actions of public administrative officers or
bodies who are required to investigate facts, ascertain the evidence of facts, hold hearings, weigh
evidence, draw conclusions from them as a basis for their official action and to exercise discretion of

12
Section 36 of the Constitution of the Federal Republic of Nigeria 1999; R. v Cambridge University (1723) 1 Str. 55
13
Okakpu v Resident Plateau Province (1958) N.R.L.R 5; See also Arzika v Governor, Northern Region (1961) ALL
NLR 374
14
The point was succinctly made by the Uwaifo, JSC in Nwaoboshi v Military Administrator, Delta State (2003)
11 NWLR (Pt. 831) 305 at pages 320 to 321, where the learned Justice quoted with approval the English case of R
v Electricity Commissioners (supra).
a judicial nature. See the case of Medical & Health Workers Union of Nigeria v The Honourable
Minister for Labour and Productivity (2005) 17 NWLR (Pt. 953) 120.
Premised on the foregoing, the following are the categories of persons or bodies that an order of
certiorari can lie:
i. Inferior courts or tribunals
ii. Administrative tribunals or bodies
iii. Local authorities
iv. Statutory bodies discharging public functions
v. Parastatals or departments of state and ministers.

PROCEDURE FOR SEEKING AND ISSUING ORDER OF CERTIORARI

For the purpose of this heading, the Lagos State High Court (Civil Procedure) Rules 2012 would be
used. The following are the procedural steps to take in filing for an order of certiorari at the High
Court in Lagos State as provided for in Order 40 of the Lagos State High Court (Civil Procedure)
Rules 2012.
 Application for leave of court to file for an order of certiorari which shall be made ex-parte to
the judge and must be supported by:
a. A statement setting out the name and description of the applicant, the reliefs sought and
the grounds upon which they are sought.
b. An affidavit verifying the facts relied on; and
c. A written address in support of application for leave. Rule 3 (1) & (2) (a-c)

 Where leave to apply for certiorari is granted, the application for an order of certiorari may be
made by motion or by originating summons. The notice of motion or summons shall be
served on all persons directly affected - Rule 5 (1) & (2).

 An affidavit giving the names and addresses of and the places and dates of service on all
persons who have been served with the Notice of Motion or Summons shall be filed before
the Motion or Summons is entered for hearing and if any person who ought to be served
 under this Rule has not been served, the Affidavit shall state that fact and the reason for it
and the Affidavit shall be before the Judge on the hearing of the Motion or Summons- Rule 5
(6).

 If on the hearing of the Motion or Summons the Judge is of the opinion that any person who
ought, whether under this Rule or otherwise, to have been served has not been served, the
Judge may adjourn the hearing on such terms, if any, as he may direct in Order that the
Notice or Summons may be served on that person - Rule 5 (6) (2)

 Copies of the Statement in support of an application for leave under Rule 3 shall be served
with the Notice of Motion or Summons and subject to sub rule (2), no grounds shall be relied
upon or any relief sought at the hearing except the grounds and relief set out in the
Statement – Rule 6 (1).

 The Judge may on the hearing of the Motion or Summons allow the Applicant to amend his
Statement whether by specifying different or additional grounds of relief or otherwise, on such
terms, if any, as he deems fit and may allow further Affidavits to be used if they deal with new
matters arising out of an Affidavit of any other party to the application – Rule 6 (2).

 Where the Applicant intends to ask to be allowed to amend his Statement or to use further
Affidavits, he shall give notice of his intention and of any proposed amendment to every other
party. Each party to the application shall supply to every other party a copy of every affidavit
which he proposes to use at the hearing including, in the case of the Applicant, the Affidavit in
support of the application for leave under Rule 3 – Rule 6 (3).

It is important to note at this juncture that, the main difference between the application of the
prerogative writ of certiorari under the Nigerian legal system and that of its Indian counterpart is that,
the application for certiorari is brought by way of a petition under the Fundamental rights enforcement
procedure rules in India while the procedures as discussed above remains the position in Nigeria. All
other positions as relating to this prerogative writ remain the same with the two countries.
 2. MANDAMUS
The Nature and Scope of Mandamus
The word ‘mandamus’ simply means ‘we command.’ It is a high constitutional order issued in the
King’s name by the High Court of Justice on application to the King’s Bench Division to some
persons or bodies to compel the performance of a public duty where no other remedy or means of
redress was available. Mansfield J in R v Baker (1962) 3 burr, 1265 at 1267 stated as follows;
It was introduced to prevent disorder from a failure of justice, and defect of the Police.
Therefore, it ought to be used upon all occasions where the law has established no
specific remedy…

Blackstone defined the prerogative writ of mandamus as ‘a command issuing in the King’s name
from the court of King’s Bench, and directed to any person, corporation, or inferior court of judicature
within the King’s dominion requiring them to do some particular thing therein specified which
appertains to their office and duty which the court of King’s Bench has previously determined, or at
least supposes to be consonant to right and justice.’15

The order of mandamus is a device for securing judicial enforcement of public duties. In the case of
R v. Metropolitan Police Commission, ex-parte Blackburn (1968) 1 All ER 770, Lord Denning stated
thus:
….mandamus is a very wide remedy which has always been available against public
officers, to see that they do their public duty. It went in the old days against justices of
the peace both in their judicial and in their administrative function. The legal status of
the Commissioner of Police is still that he is a justice of the peace as well as a
constable. No doubt the party who applies for mandamus must show that he has
sufficient interest to protect and that there is no other equally convenient remedy…
where this is shown, the remedy of mandamus is available.

15
William Blackstone Commentaries at page 110
It follows that the order of mandamus is one of the means by which an aggrieved person, who has
clearly established that his right has been infringed or interfered with or deprived can regain his right
or freedom and that the duty which the defendant refuses to perform must be one of a public nature.
It is instructive to emphasize that the order of mandamus enforces the legal right of an applicant
where there is a right but there is no remedy to enforce it. It lies in the cases where there is a specific
right but no specific legal remedy for enforcing that right.
Mandamus is a discretionary remedy, the application for it must be made in good faith and not for
indirect purposes. Once a remedy already exists, the proper order will be one of mandamus.
In Banjo & ors v Abeokuta Urban District Council (1965) NMLR. 295, the applicants filed for an order
of mandamus to compel the defendants to issue them driving license which the defendants refused
to issue giving reason for refusal of this public duty to be that the city was filled with too many taxi, so
they want to place a check on the number of cars being driven in the city, despite the applicants
having fulfilled all conditions precedent in obtaining a driving license in the city. An order of
mandamus was issued against the defendant council to compel the secretary of the council to issue
the applicants with the permits or license.

See also Shitta Bey v Federal Public Service Commission (1921) S. C. 40, where it was stated that ‘if
a body against whom an order of mandamus is sought departs widely from the conditions laid down
in the law empowering the body to perform its public duty, mandamus will lie against it.’
It is important to note that an order of mandamus is one made to compel the performance of a public
duty. It is however, a discretionary power. It is settled law that where a person has discretion to act, a
writ of mandamus will not be granted to compel that person to exercise his discretion in a particular
manner. See the case of R v Western Urhobo Rating Authority ex-parte Odje & ors (1961) All N.L.R
796 where the learned judge stated that ‘the granting of stay of execution is discretionary and where
a person or authority is empowered to exercise discretion in a matter, he cannot be compelled to do
so by a higher authority…’

A. Instances where the order of Mandamus may lie

The order of mandamus may lie in the following instances;
i. To compel a tribunal, a minister or local authority to entertain an appeal or application in
respect of which they have wrongfully declined jurisdiction.
ii. To compel a body (having legal authority) to carry out a duty to give reason for a decision or
to give adequate reasons.
iii. To require a local authority to provide minutes and render accounts for inspection.
iv. If an authority is required to exercise discretion in a matter and that authority fails to consider
it on merits because it has improperly sub-delegated its power, or if it acted under dictation or
fettered its own discretion by an authorized promise, or a rigid self-imposed rule the order will
lie. In Gani Fawehinmi v Halilu Akilu & Anor (1988) LPELR-20549 (CA), the Lagos State
Attorney-General refused to endorse his refusal to prosecute an application brought by a
private prosecutor. The application was for leave to effect a private prosecution of the
security officers suspected of having murdered a journalist. After a protracted challenge of
the locus standi of the applicant, to bring a private prosecution, a Lagos High Court finally
ordered the Lagos State Attorney General to do her duty. In the event, her office opted to
prosecute the suspects directly.
v. When an authority has abused its statutory discretion for instance by rejecting an application
on the basis of consideration of irrelevant legal matters to the subject matter of the
application. In Padfield v Minister of Agriculture (1968) A. C. 997 where the House of Lords
held that the Minister had regard to irrelevant considerations and had failed to promote the
implied purposes of the Act. An order of mandamus was issued to direct the Minister to
consider the applicant’s complaints according to law.

B. Grounds for application of the order of Mandamus

The grounds upon which the application for an order of mandamus may be made are as follows;
i. The duty which the defendant refuses to perform must be one of a public nature.
ii. The applicant should ordinarily be the very person whose right is being infringed, that is, he
must have the requisite locus standi. That is, must have sufficient interest in the matter being
complained of and on the basis of which he wants to invoke the order of mandamus.
iii. The aggrieved person must have demanded the public duty to be performed in relation to him
but was refused or denied by the person refusing to discharge the public duty
 iv. The officer or tribunal or body to discharge or perform the public duty required of him must
have blatantly refused to perform such public duty.16
Disobedience to an order of mandamus is a contempt of court punishable by fine or imprisonment.
Mandamus can be likened to injunction; both are commands from the court that some legal duty
must be performed.

Procedure for seeking and issuing of an order of Mandamus

The procedure for issuing an order of mandamus is the same with the procedures for seeking order
of certiorari and is also governed under Order 40 of the Lagos State High Court (Civil Procedure)
Rules 2012. See also Order 40 of Osun State High Court Amended (Civil Procedure) Rules 2008 and
Order 40 of Oyo State High Court (Civil Procedure) Rules 2010.

3. PROHIBITION
Prohibition has been defined as an extraordinary writ use by a superior court to prevent a lower court
from exceeding its jurisdiction or to prevent a non-judicial officer or entity from exercising its power in
an appropriate case.17
Prohibition is a kind of common law injunction to prevent an unlawful assumption of jurisdiction18
It is used to restrain a tribunal, inferior court, or public body from proceeding in excess of jurisdiction
confers on it.19 The award of an order of prohibition depend upon there being a knowledge that an
unlawful act will be carried out.
The prerogative remedy of prohibition is also available to an applicant to prevent the performance of
administrative action which are judicial in nature.20
The court has the discretion of whether or not to make the order.21
In general, its scope is similar to that of certiorari although it cannot be used to prevent a tribunal
from making an error of law on the face of the record. 22 It can be said that the order of certiorari looks
16
See Criminal Injuries Compensation Board, ex-parte Clowes (1977) 1 W.I.P
17
Black’s Law Dictionary Op. cit
18
Handbook of Common Law Pleading, Benjamin J. Shipman. Pg 542
19
Greer Hogan op. cit. 88
20
P.A Oluyede, Nigerian Administrative Law, 1988, p.536
21
Ibid
22
Greer Hogan op. cit. @ pg 88
into the past while prohibition looks into the future. In sum, prohibition would lie where an
administrative tribunal has not yet reached a decision while certiorari is the remedy for an action
already completed.23 See the case of Arzika v. Governor of Northern Region.24
The order of prohibition may be granted where there has been a breach of the rules of natural justice,
lack or excess of jurisdiction25, fraud, collusion, duress26 or error on the face of the record27.

Grounds for Granting Order of Prohibition

It is an order by which a superior court prevents a lower court, tribunal, public or administrative
authority. The grounds for granting the order are:

 To prevent an inferior court or administrative body from exceeding its jurisdiction in a matter
on which it has power, and thereby confine it to its proper jurisdiction.
 To prohibit an inferior court or administrative body from hearing or determining a matter which
is not within its jurisdiction;
 To prohibit an inferior court or administrative body from sitting due to improper constitution of
the court; or
 To prohibit an inferior court or administrative body from acting contrary to the rules of natural
justice or fair hearing and so forth.

An order of prohibition is usually granted to restrain a person or body from performing a judicial
or quasi-judicial function on the ground that it is baseless, unwarranted, unlawful,
unconstitutional, directed at wrong persons, and so forth.

An order of prohibition is preventive in nature rather than coercive. It serves to prevent a judicial
or quasi-judicial proceeding, or action from commencing at all, or it aborts it, while it is on course
before its completion. Thus, an order of prohibition lies where a judicial or quasi -judicial
proceeding has not yet taken off or has commenced proceedings, but has not reached a
23
P.A Oluyede op. cit. @ pg 532
24
(1961) All N.L.R. 374
25
De Souza v. Tanga Town Council (1961) E.A. 377
26
S.A. De Smith: Judicial Review of Administrative Action (3rd Ed.) pgs 421-422
27
Owolabi’s case supra
 decision. Whereas an order of certiorari is the proper remedy for an action already completed. An
order of prohibition is the opposite of an order of mandamus, for whilst an order of prohibition,
prohibits the exercise of judicial or quasi-judicial powers and action thereon, an order of
mandamus commands the performance of public duty.

It is an order which retrains an inferior court or tribunal from exercising its powers. It may issue
for instance, to prevent an inferior court or tribunal from usurping a matter, exceeding its
jurisdiction or from infringing the rules of natural justice. It does not lie when a final decision has
been made. An order of certiorari is the proper order for a completed act.

Procedure for seeking and issuing of an order of Prohibition

The procedure for issuing an order of prohibition is the same with the procedures for order of
certiorari and is also governed by Order 40 of the Lagos State High Court (Civil Procedure) Rules
2012; Order 40 of the Osun State High Court (Amended) (Civil Procedure) Rule 2008 and Order 40
of Oyo State High Court (Civil Procedure) Rules 2010

Relationship amongst Prerogative Orders

The essence for judicial review was captured in detail in the case of Gov. of Oyo State v. Folayan
Ogundare28 where the court outlined the principles to be followed by the reviewing courts as follows:

a) The judicial review is not an appeal but alternative thereto.

b) The court must not substitute its judgment for that body whose decision is being
reviewed.
c) The correct focus is not upon the decision but the manner it was reached. This points at
the procedure.
d) That what matters is the legality and not the correctness of the decision.

28
(1995) 9 SCNJ 50 @ 83
Looking at the ratio arrived at in the above-named case, it depicts that there is a little deviation from
the common law grounds for judicial review and the deviation is that in law unlike common law
grounds the court does not border on irrationality

Certiorari and Prohibition

Certiorari simpliciter means an order to quash a decision reached in excess of jurisdiction, while
prohibition is an order to restrain or prohibit proceedings of the inferior courts, tribunals etc by the
High Court where they have no jurisdiction.

Similarities
1) Both are public law remedies.
2) Both are used only against bodies who have statutory rights to determine the right of a
subject.
3) Both are used as substantive reliefs except in few cases where the applicant apply for
the two reliefs at the same time.

Differences
Certiorari is used to quash or cancel a decision (i.e for an act that has already taken place) while
prohibition is used to prohibit or restrain existing acts or intending acts.
Advantages of Judicial Review
i. it is faster than an appeal
ii. it is less expensive

Disadvantages
i. Where the leave is refused, the applicant may not make use of the alternative option of
appeal that co-exists therewith unless the applicant appeals on the refusal.
ii. It has limitation period. For instance, in most of Western States in Nigeria the application
for Judicial review must be brought within 3 months of the date of occurrence of the
subject of the application. See Order 40 Rule 4 of Oyo state High Court (Civil Procedure)
Rules 2010.
 4. Habeas Corpus

Habeas corpus means ‘you have the body’. A writ of habeas corpus is a writ for securing the liberty or
immediate release of a person from unlawful custody or other unjustifiable detention. The writ of habeas
corpus has been part of the Anglo-American Common Law since the middle ages. It has its origin in the
early common law courts of medieval England. Some historians have found reference to the writ in
Article 39 of the Magna Carta 1215 which provides that: ‘No freeman shall be taken, or imprisoned …..
But by lawful judgments of his peers, or by the law of the land.

The modern understanding of the writ of habeas corpus as a protection of individual liberty solidified in
the 17th century amidst the struggles between the Parliament and the Monarch for political supremacy.
The Petition of Rights Act in 1628 charged that King’s jailers were ignoring the writs and keeping English
subjects illegally detained. In 1641, the Parliament passed an act abolishing the Star Chambers, a court
controlled by the King and an inner circle of advisors that operated in secret and became instrument to
suppress opposition to the Crown. The 1641 Act provided habeas corpus relief in the common law courts
to any person detained or imprisoned by the order of the Star Chambers. In 1670, the Parliament passed
the Habeas Corpus Act. Section 35 of the 1999 Constitution (as amended) deals with right to personal
liberty. It provides inter alia that: ‘every person shall be entitled to his personal liberty and no person shall
be deprived of such liberty save in the following cases and in accordance with a procedure permitted by
law…’.
The exceptions provided under section 35 of the 1999 Constitution are to the effects that a person may
be denied his right to personal liberty:
i. In execution of the sentence or order of a court in respect of a criminal offence of which the
applicant has been found guilty;
ii. By reason of his failure to comply with the order of a court or in order to secure the fulfillment
of any obligation imposed upon him by law;
 iii. For the purpose of bringing a person before a court in execution of the order of a court or
upon reasonable suspicion of his having committed a criminal offence;
iv. In the case of a person who has not attained the age of 18 years for the purpose of his
education or welfare;
v. In the case of person suffering from any infectious or contagious disease, person of unsound
mind, persons addicted to drugs or alcohol or vagrants, for the purpose of their care or
treatment or the protection of the community and
vi. For the purpose of preventing the unlawful entry of any person into Nigeria or of effecting the
expulsion, extradition or other lawful removal from Nigeria of any person or the taking of
proceeding related thereto.

Thus, where a person is kept in an unlawful custody, he has the right to demand for his personal liberty
by applying for an order of habeas corpus. In the case of Secretary of State for Home Affairs v O’Brien, 29
Lord Birkenhead described the order as follows:
It is perhaps the most important writ known to the constitutional law of England, affording as it
does a swift and imperative remedy in all cases of illegal restraint or confinement… It has
through the ages been jealously maintained by courts of law as a check upon the illegal
usurpation of power by the executive at the cost of the liege.

De Smith, while supporting the foregoing, described the writ of habeas corpus as a renowned
contribution to human liberty.30 The writ of habeas corpus is a writ for determining the legality of the
detention of a person who is in official custody or private hands. See R. v Jackson (1981) 1 QB 671.
Note that when a person is in private custody, police action or criminal proceedings is a faster means of
securing freedom of the person detained.

A person if restrained of his liberty illegally or without justification may apply by himself for his release,
any other friends or strangers can apply on his behalf because the rule of locus standi has no application
to the writ of habeas corpus.

29
[1923] A.C., 603.at 609
30
De Smith’s Judicial Review of Administrative Action, p. 596
The purpose of habeas corpus is not to determine whether the detainee is guilty or innocent, but to
determine whether the detainee was detained according to the due process of law. Hence, it is command
to the custodian to show causes why the prisoner should not be released. Where a court is satisfied that
a detention is prima facie illegal, a writ is usually issued to command the custodian to release the
detainee. See the case of Chief Agbaje v C.O.P (1969) 1 NMLR 176.

The writ of habeas corpus is normally directed to the person or authority that has the custody of the
body. The person to whom the writ is directed shall certify the true cause of the prisoner’s detention. This
shall be made to the judge who issues the writ.

B. NON-PREROGATIVE ORDERS / ORDINARY PRIVATE LAW REMEDIES:

These orders are not primarily remedies of public law but are widely used in this field to challenge or
remedy administrative actions done mala-fide and or without justification. These remedies include the
following:

1. DECLARATION
A declaration is a convenient and flexible remedy which can be used to obtain a statement of the
legal relationship between parties in a wide range of circumstances.31 It is a remedy which simply
declares the rights of the parties.32
It can be used to challenge the legality of administrative decisions, the validity of delegated
legislation and to establish the existence or scope of a public duty.33
The applicant for a declaratory order must have a right or interest which is justiciable. There must be
a real dispute between the parties.34 Declaration is a remedy that is available in both public and
private law matters. It is important to note that interim declaration cannot be made.

31
ibid
32
Brian Thompson op cit. @ pg 446
33
Greer Hogan op cit. pg 89
34
ibid
As a declaration will not quash a decision, it cannot be used to challenge a decision on the ground
that there has been an error on the face of the record of the tribunal’s decision as this is an error
within jurisdiction. A declaration that such a decision is irregular would still leave the decision intact35.

Declaratory judgments play a large role in private law and are a particularly valuable remedy for
settling disputes before they reach the point where a right is infringed. 36 However, it must be borne in
mind that declaration states the legal position of the parties as they stand without changing them in
any way.37

Declaration is an equitable remedy and may only be granted at the discretion of the court. It will
however not be granted on a hypothetical basis. As there must be a real controversy before it can be
granted.38

This remedy can be granted in virtually every aspect of law including Administrative law 39, Labour
Law40, Land Law, Commercial Transactions, torts etc.

2. INJUNCTION
An injunction can be defined as a court order commanding or preventing an action. 41 In the general
sense every order of a court which commands or forbids is an injunction; but in its accepted legal
sense, an injunction is a judicial process or mandate operating in personam by which, upon certain
established principles of equity, a party is required to do or refrain from doing a particular thing.

HISTORICAL DEVELOPMENT OF INJUNCTION IN NIGERIA

Nigeria legal system has its origin from that of the common law. In legal history, the remedy of
injunction was one of the foundations of the jurisdiction in equity exercised by the court of Chancery

35
ibid
36
Wade: Administrative Law (1977) pg 499
37
P.A Oluyede op cit. @ pg 512
38
ibid
39
A.G. Bendel State v. A.G. Federation & 22 ors. (1982) 3 NCLR @ pg 3
40
B.A. Shitta-Bey v. Federal Public Service Commission (1981) 1 SC 40
41
Black’s Law Dictionary Op. cit
 42
and the Court of Exchequer in England. When the fusion of law and equity was effected by the
Judicature Act 1873, the jurisdiction to grant injunction in all cases in which courts of equity or
common law could formerly grant the relief was made available to every branch of the High Court
with the creation of High Court of Justice under the Act.43

Since the British government colonized Nigeria in 1862, the English law, which is a by-product of
colonization, had been introduced into the Nigerian legal system. The first Statute enacted by the
colonialists on the reception of English law in Nigeria is the Interpretation Act. While the Statute dealt
generally with the interpretation matters, section 45 of the Act made provision on the reception of
44
English law. It is as a result of this section that the English Common law principle of interim
injunction and injunction generally became part of Nigerian law.

An English case that illustrates the position of the English common law on the order of injunction is
the case of Thomas Edison Ltd. v. Bullock,45 Griffith CJ said:
"There is a primary precept governing the administration of justice, that no man is to
be condemned unheard; and therefore, as a general rule, no order should be made to
the prejudice of a party unless he had the opportunity of been heard on defence. But
instances occur where justice could not be done unless the subject matter of the suit
were preserved, and, if that is in danger of destruction, by one party, or if
irremediable or serious damage be imminent, the other may come to court, and ask
for its interposition even in the absence of his opponent, on the ground that delay
would involve greater injustice than instant action."46

DEFINITION OF INJUNCTION
The word ‘injunction’ has its root in the Latin word “injungere”, which means to “join, attach or
impose”. A subsequent inflexion of “injungere” is the old French word “enjoinder”, which entered the

42
Afe, B. (2007) Injunctions and Enforcement of Orders; 2nd ed. Intec Printers, Ibadan, P. 2.
43
Section 25 (8) of the Judicature Act 1873, see also Haubury and Maudsley, Modern Equity, Tenth Edition, P. 68.
44
Cap 89, Laws of Federation and Lagos, 1958.
45
[1912] 15 CLR 679
46
Ibid. @ P. 681.
corpus of English words in the middle ages. “Enjoinder” later became “injunct” and soon
“injunction”.47 An injunction is a judicial process or mandate operating impersonam by which, upon
certain established principles of equity, a party is required to do or refrain from doing a particular
thing.48 An injunction has also been defined as a writ framed according to the circumstances of the
case, commanding an act which the Court regards as essential to justice, or restraining an act which
seems contrary to equity and good conscience.49 Karibi-Whyte, J.S.C in Babatunde Adenuga & 5
ors. v K. Odunewu & ors. (2001) 2 NWLR (Pt. 696) 184 at 195 Defined an injunction thus:
“…...An equitable order restraining the person to whom it is directed from
doing the things specified in the order or requiring in exceptional situations
the performance of a specified act. A claim for an injunction is a claim in
equity.”
The 9th Edition of the Black Law Dictionary defines an injunction as "a court order commanding or
preventing an action". Thus, an injunction is usually in the form of a restraining order. It is an extra
ordinary remedy reserved for special circumstances in which the temporary preservation o f status
quo is necessary. An injunction is an equitable remedy. So, it is at the discretion of the Court.
However, the court is expected to exercise its discretion judiciously and judicially.50

MODES OF APPLYING FOR INJUNCTION

Injunctive remedies can be applied for by way of ‘Motion’ which can either be ex parte or on notice.
Every motion to court shall be supported by an affidavit setting out the facts on which the Applicant
intends to rely and a written address.51 Also, where the Respondent wishes to oppose the
application, he is required to file a Counter Affidavit with a written address in response to a Motion on
Notice.

Motion Ex-parte

47
Much of the information for this etymological narration is taken from The Concise Oxford English Dictionary,
Tenth Edition at Pp. 473 and 729
48
Afe, B. (2007) Injunctions and Enforcement of Orders; 2nd ed. Intec Printers, Ibadan, P.3.
49
See Howard C. Joyce, A Treaty on the Law Relating to injunctions at Pp. 2-3
50
Ayorinde v. A.G Oyo State, (1996) 2 SCNJ 198.
51
Order 7 rule 3 (Abuja); O.39 r. 1(1) (Lagos, Enugu and Rivers) High Court Civil Procedure Rules.
In Civil procedures ex-parte application or motion is used where the interest of the other party will not
be prejudiced, if he is not put on notice. Therefore, where it is only the interest of the particular
applicant that will be affected or where from the nature of the application there will be no opposition
to it, and when time is of essence of the application, such applications are usually made ex-parte.52
An ex parte application is one made and granted without notice to the party affected by the order
sought in the application. An application ex-parte is granted to keep matters in status quo to a named
date, usually not more than 7 days53 (depending on the provisions of the Civil Procedure Rules of
each court) or until the respondent can be put on notice. A motion ex-parte for injunction shall not be
heard unless a motion on notice in respect of it has been filed.54
The rationale for an order made on an ex parte application is that the delay to be caused by
proceeding in the ordinary way by putting the other side on notice might cause such an irreparable or
serious mischief. Such injunctions are for cases of real urgency and not a self-imposed urgency. In
this wise, there must be an all-pervading real urgency glaring on the face of the application before an
application ex parte for injunction can be granted.

Motions ex-parte are also used whenever the law provides that a particular application may be made
ex-parte.55 It is important to note that, the presence in court of a person to be affected by an order an
ex-parte application during the hearing of such an application does not have any effect as he has no
right of audience in respect thereto.56 However, in special situations, where a party against whom an
order is sought ex parte, appears in court and seek the leave of court to participate may be allowed
and heard. The situation is referred to as “opposed ex parte motion” where the judge allowed the
party to participate, upon been satisfied that there is a good ground to do so.57

By practice, an applicant seeking for ex-parte order is required to fully disclose the facts to the court.
Where such disclosure is not made, it will be a ground for setting aside any order made on the basis
of an ex parte application. Hence, a court has an inherent power to revoke an order made ex parte
52
See Leedo Presidential Motel Ltd. v. Bank of the North, (1998) 7 SCNJ 328 at 353; Attamah v. Anglican Bishop of
the Niger (1999) 9 SCNJ 23.
53
Order 39 Rules 3(3) of the High Court (Civil Procedure) Rules, Oyo State 2010.
54
Oder 7 rule 7(3) Abuja O. 39 r. 3(2) Lagos.
55
Order 7 rule 7(2) (Abuja);
56
7-Up Bottling Coy Ltd. v. Abiola 7 Sons Ltd. [1989] 4 NWLR 229 CA; (1995) 3 SCNJ 37.
57
O. 29 r. 1(8) Rules of the Supreme Court, 1997 at p. 507; Pickwick International Inc. (G.B.) Ltd
once it becomes aware that it gave its leave under a misapprehension of fact or if the applicant had
suppressed relevant facts.58

Motion on Notice
Here, the adverse party or the party interested in the subject matter of the application is given prior
notice of it in the sense that the motion is addressed to him and a copy thereof is served on him. By
this, he’s being given the opportunity to contest the grant or otherwise of the application by the court
by filing a counter affidavit in response to the application.59 Unless the Court otherwise directs, there
shall be at least two clear days between the service of the motion on notice and the date of hearing.60

INJUNCTIVE REMEDIES UNDER THE NIGERIAN LEGAL SYSTEM

An order of injunction can either be prohibitory or mandatory. A Mandatory injunction is an order
which requires a party to do a specific act or acts. A mandatory injunction is often seen as a
restorative order invoked by the court to deal with a defendant who has no respect for the court of
law.61 Mandatory injunction is granted in exceptional circumstances to force public officers to retrace
their steps. Also, the court can grant mandatory injunction to forestall executive lawlessness.62
Prohibitory injunction is restrictive in nature and it restrains the person to whom it is directed from
doing specific act or acts. It is the most common type of injunction usually seek and grant by Nigerian
Courts. It can either be obtained ex parte or by a motion on notice, and the conditions and
prerequisites for the granting of these orders are the same as the ones for the granting of interim and
interlocutory injunctions. 63 Other types of injunction that may be applied for by an applicant depend
on the circumstances of the case. An injunction could be interim, interlocutory or perpetual. Other
specialized forms of injunctions are; Anton-pillar orders, Mareva injunctions and Quia timet injunction

58
Ojukwu E., Chidi N. O.(2002),introduction to civil procedure, Helen Roberts Research and Resources Ltd. p. 173.
59
Ibid., @ p. 173
60
O.7 rr.7(1) & 18 (Abuja); O.39 r. 5 (Lagos, Enugu and Rivers); Loxroy (Nig) Ltd. v. Triana Ltd., (1989) 12 NWLR
(Pt. 577) 252 at 256
61
Afe, B. (2007) Injunctions and Enforcement of Orders; 2nd ed. Intec Printers, Ibadan, P. 7
62
Ekanem v. Umanah (2006) 11 NWLR (Pt. 992) 510 at 526-527, per Chukwuma-Eneh, JCA
63
Olanipekun O. Majekodunmi A., (2015) “Litigation and Dispute Resolution”, Retrieved from
http://www.africanbusiness.com/publications/litigation-and-dispute-resolution/global-legal-insights-litigation-and-
dispute-resolution-4th-ed/nigeria/about-cookies on the 15th July, 2016 at 22:00hrs.
and they are in the form of interim orders. The different types of injunction that may be applied for by
an applicant, depending on the circumstances of the case are:

INTERIM INJUNCTION
In civil proceedings, there are certain steps to be taken which are incidental or preliminary to the
substantive case. These steps include motion for direction, interim or interlocutory injunction. Motions
for interim injunction are usually brought ex parte. The basis of the jurisdiction for ex-parte order or
interim injunction is the existence of a situation of extreme urgency, which requires that the order
must be made, otherwise an irreparable harm or injury would be occasioned to the prejudice of the
applicant.64

The practical way to ensure that the subject matter is preserved is to move the Court by way of ex-
parte application for interim injunction to maintain the status quo pending the determination of the
motion on notice. The ex-parte application should be supported by an affidavit which, in addition to
the requirements of the rules shall state sufficient grounds why delay in granting the order sought
would entail irreparable damage or serious mischief to the applicant. 65 Thus, an application for
interim injunction should be succeeded by a motion on notice asking for an interlocutory injunction.
Under most of the rules of High Court in Nigeria, no application for interim injunction shall be
entertained unless the applicant accompanies it with a motion on notice for the interlocutory order.
See Order 39 Rules 3(2) of the High Court (Civil Procedure) Rules, Oyo State 2010
The applicant who obtained an ex-parte order must effect the service of the order as soon as
practicable. The need for service is underscored by the fact that the affected party has no means of
knowing about the order which was obtained behind his back. The party restrained may move the
court by motion for the discharge of the order. The application to vary or discharge must be made
within seven days of the service of the order on the Defendant. The defendant may however join in
his motion a prayer for extension of time if the application is made after the expiration of seven days.
See Order 39 Rules 3(3) of the High Court (Civil Procedure) Rules, Oyo State 2010

64
see Secondi Bogban& 2 ors. V. Moto Diwline& 2 ors (2005) 16 NWLR [Pt. 951] 274. E.S. &C.S. Ltd. v. N.M.B.
Ltd @ page 262.Olowu v. Building Stock Ltd. (2004)4 NWLR (Pt. 864) 445.
65
O. 8 r. 8 Uniform Civil Procedure Rules. Order 26 Rules 8(1).
INTERLOCUTORY INJUNCTION
Applications for interlocutory injunction are properly made on notice to the other side. An interlocutory
injunction is granted after all parties have been heard and lasts during the pendency of the suit. See
Kotoye v CBN (1989) 1 NWLR (Pt. 98) 419 at 441. It is granted to maintain the status quo between
the parties pending the final determination of the dispute. It last till the end of the case to give way to
perpetual injunction which is granted at the end of the trial.

If a Respondent intends to oppose the grant of the injunction, he shall file a counter affidavit stating
his grounds of opposition. Thus, an application for interlocutory injunction is by way of motion on
notice supported with an affidavit. Generally, an interlocutory injunction will not issue against
completed acts. See Okafor v AG Anambra (1992) 2 SCNJ 219; Ajewole v Adetimo (1996) 2SCJN
119 at 126. The court can however make a mandatory injunction to forestall executive lawlessness.
Where a party to be ordered by injunction deliberately proceeds to complete the act sought to be
restrained, in total disrespect of the court of law, necessary orders will be made to return the parties
to the status quo before the wrongful act.66

PERPETUAL INJUNCTION
A perpetual injunction is generally a post-trial relief. A relief of perpetual injunction can only be
granted where the applicant has established his right and an actual or threatened infringement of that
right. It is not granted to restrain the joyful enjoyment of a legal right; it is directed towards the final
settlement and enforcement of the rights of the parties which are in dispute.

The Court will not grant perpetual injunction unless there is a specific relief endorsed on the Plaintiff’s
writ or included in the statement of claim. This is in line with the principle that the court will not grant a
party the relief which he has not claimed. However, when the intention is already apparent in the
nature of the case, the Court may grant specific relief for same.67
Injunction generally being an equitable relief of discretionary nature is not granted as a matter of
course. There exist equitable bars to the grant of perpetual injunction. Some of them are
66
See Buhari & Ors v. Obasanjo & Ors (2003) 17 NWLR (Pt. 850) 587. See also NBM Bank Ltd. v Oasis Group Ltd.
(2005) 3NWLR (Pt.912) 322; Anerekide v Mashasha (2001) 12 NWLR (Pt. 726) 70.
67
See, Ilona v Idakwo (2003) 11 NWLR (Pt. 830) 53 SC.
acquiescence, laches, impossibility and futility of performance, illegality, hardship, defendants
undertaking to desist from the wrong complained of and the plaintiff’s unclean hands.68

In respect of the three types of injunctions considered above, the Nigerian Court of Appeal in the
case of Adeniran v. Alao (1992) 2 NWLR (Pt. 223) 350 at 372, per Niki Tobi JCA (as he then was)
held:
“while a court of law grants an interim injunction ex parte in exceptional cases of
extreme urgency to preserve the res or status quo, and while a court of law can also
grant an interlocutory injunction where the applicant inter alia shows the existence of
a legal right and need to protect that right, the relief of perpetual injunction, as the
name implies, is the largest of the three reliefs. Putting it in another language, an
interim injunction stops where an interlocutory injunction begins and an interlocutory
injunction stops where a perpetual injunction begins in perpetuity.”

OTHER SPECIALIZED FORMS OF INJUNCTION

i. MAREVA INJUNCTION
The revolution going on in commercial litigation led to the development of Mareva Injunctions and
Anton Piller orders. The revolution which started from England in 1975 in the case of Mareva
Compania Naviera SA v. International Bulkcarriers (1975) 2 Lloyd’s Rep. 509, has spread to other
parts of the world.

The Mareva injunction has been described as one of the nuclear weapons of law by Donaldson J. in
Bank Mellat v Mohammed Ebrahim Nikpour [1982] Com. L.R. 158 at 159, Mareva Injunction is an
injunction restraining a Defendant who is not within the country or jurisdiction but has assets in the
country or jurisdiction from removing his assets or disposing of them within the jurisdiction of court.

It is a prohibitive injunction which is applied for ex parte simply to restrain another person from
moving out of jurisdiction or dissipating the res of litigation. The Court can hear the motion ex parte
68
Afe Babalola. Injunctions and Enforcement of Orders, 2nd ed. (Ibadan: Intec Printers, 2007) p. 195
and if satisfied make an order for mareva injunction. Otherwise the court can direct that the
defendant be put on notice.

It was first granted in the case of Mareva Compania Naviera S.A. v. International Bulk Carriers Ltd.
(1975) Lloyd’s Rep 509; [1980] 1 All E.R. 213 In that case, Lord Denning MR, relying on Beddow v
Beddow (1878) 9 Ch. D 89 at 93, held that:

There is only one qualification to be made. The court will not grant an injunction to
protect a person who has no legal or equitable right whatever…. Now, therefore,
whenever a right which can be asserted either at law or in equity, does exist, then,
whatever the previous practice may have been, the Court is enabled by virtue of this
provision, in a proper case, to grant an injunction to protect that right….In my opinion
that principle applies to a creditor who has a right to be paid the debt owing to him,
even before he has established his right by getting judgment for it. If it appears that
the debt is due and owing, and there is a danger that the debtor may dispose of his
assets so as to defeat it before judgment, the court has jurisdiction in a proper case
to grant an interlocutory judgment so as to prevent him disposing of those
assets….”69

Nigerian courts have accepted and adopted the Mareva Injunction decisions of English courts. The
above case forms the bedrock of the Nigeria’s jurisprudence on Mareva Injunctions. The First
Supreme Court decision on mareva injunction in Nigeria was in 1992 in the case of Sotunminu v.
Ocean Steamship [Nig] Ltd.70
There is no doubt whatsoever that Nigeria courts have jurisdiction to grant mareva injunction. In
some states where the Uniform Procedure Rules apply, the jurisdiction of the court to grant mareva
injunction is derived from the High Court Law and the Constitution.71

69
[1980] 1 ALL E.R. 213 at 214.
70
(1992) 5 NWLR [Pt. 231] 1, (1992) 5 SCNJ 1.
71
Various rules of court confers jurisdiction for the grant of injunction. Examples are; Order 33 Rules 1(1) and 2(1) of
Oyo State High Court (Civil Procedure) Rules, 2010, Order 15 (Abuja), Order 16 (Kano).
Also, Mareva Injunction is popularly employed in admiralty and aviation actions in Nigeria such as
arrest of ships or other maritime property under the Admiralty Jurisdiction Act (CAP A5 LFN) and
Admiralty Jurisdiction Procedure Rules, 2011 to secure maritime claims. It can also operate in the
form of a freezing order. By section 49 and 50 of the Assets Management Corporation (AMCON) Act
of Nigeria and Part XIII Rule 13.1 (1)(h)(i)(ii) of the AMCON Practice Directions,2013 (which are
statutory interventions in Nigeria for recovery of debt owed to Nigerian banks), Mareva Injunctions
are put to very instructive use vide freezing orders. The following are some conditions that must be
satisfied before a mareva injunction can be granted:
1. The existence of a strong case and justifiable cause of action against the defendant.
2. The existence of a real and imminent risk of the defendant removing the assets from
jurisdiction.
3. Full disclosure of all material facts relevant to the application.
4. Full particulars of the assets against which the order is sought.
5. Favourable balance of convenience.
6. An undertaking to pay damages if the order ought not to have been made.72
Applications embodying the Mareva injunction and Anton Pillar order are brought under the relevant
Nigerian Statutory provisions, Rules of Court and under the inherent jurisdiction of the court. The
applications can also be brought under English rules, as these applications are novel in Nigeria. The
Nigerian Courts can have recourse to English rules and practice.73

From the moment a mareva injunction is granted, it takes effect on every asset owned by the
defendant as stated in the order. Third parties are expected to be notified by court bailiffs. Once
notified, such third parties should take reasonable care to preserve all the assets referred to in the
order; otherwise they would be guilty of contempt of court.

72
See the following cases:- Visions Channel 4 Ltd. v. Visions Channel 4 Ltd. (1983) 1 WLR. Sotuminu v. Ocean
Steamship Nig. Ltd (1992) 5 NWLR (PT.239) 1 at 9-11; 25-29. Third Chandris Shipping Corpn v. Unimarine (1979) 2
All ER 972.
73
Registered Trustees ECWA Church v. Ijesha [1999] 12 NWLR [Pt.635] 368 at 387 (CA).
Generally, order of injunction should not be made against a person who is not a party to the suit. 74 A
party to be bound as a result of an action should be made a party to the action. 75 A bank can be sued
irrespective of lack of privity between it and the person suing.76

ii. ANTON PILLER INJUNCTION

This is an injunction normally made ex parte and in camera, permitting the applicant to enter into the
premises of the Respondent to search and seize, detain and preserve goods, documents or articles
in possession of the Respondent. This is normally granted in cases of copyright, trademark or patent.
The essence of hearing the application in camera is to ensure that the Respondent has no wind of it;
thereby affording him an opportunity of removing the articles from the premises or destroying them
before the order can be enforced.
In England, the granting of Anton Piller orders dates from 1974, the first reported case in which one
was granted being EMI Ltd v. Pandit [1975] 1WLR 302. In the year 1975, piracy of copyright became
very lucrative in England; the need to curtail it by law led to the invention of Anton Piller Injunction.
The jurisdiction to grant the relief was first upheld by the Court of Appeal in Anton Piller K.G. v.
Manufacturing Processes Ltd. (1976) 1 All ER 779, in which the procedure was distinguished from
that of granting search warrants. On the Plaintiffs’ ex parte appeal, it was held, allowing the appeal,
that in most exceptional circumstances, where Plaintiff had a very strong prima facie that a potential
damage to the property was very imminent and there was clear evidence that defendants possessed
vital material which they might destroy or dispose of so as to defeat the end of justice before any
application inter partes could be made, the court had inherent jurisdiction to order Defendants to
“permit” Plaintiffs’ representatives to enter defendants’ premises to inspect and remove such
material; and that in the very exceptional circumstances the court was justified in making the order
sought on the plaintiffs’ ex parte application.
Nigerian Law has also recognized and applied the rule in Anton Piller K.G. v. Manufacturing
Processing Ltd. (supra), in the exercise of its equitable jurisdiction particularly in protecting

74
Onyekwunne v. Ndulue [1997] 7 NWLR [Pt. 512] 250 at 280-281; Uzondu vUzondu [1997] 9 NWLR [Pt. 521] 466 at
499.
75
A.G Federation v. A.G Abia State [2002] FWLR [Pt. 102] 1 at 106; Lawanson v. Afani Continental Co. [Nig] Ltd
[2002] FWLR [Pt.109] 1756 at 1761.
76
First Bank of Nigeria v. Nireko Ent Ltd [2002] FWLR [Pt. 95] 335 at 343.
intellectual property rights. There is now a statutory provision for making an Anton Piller order in
Nigeria. It is under Section 25 of the Copyright Act.77
The Federal High Court has exclusive Jurisdiction on Copyright matters.78 Thus, applications for
anton pillar order must be made to the Federal High Court. An applicant must satisfy by affidavit
evidence the requirements in Order 26, Rule 8 (2) of the Federal High Court Rules.
Often, application is made so as to safeguard vital evidence which is needed to prove the plaintiff’s
claim, but the procedure can be invoked to obtain information necessary to safeguard the Plaintiff’s
rights, or to locate assets upon which a judgment might be enforced, or to preserve property which
otherwise might be dissipated or destroyed.79
The conditions for the grant of an Anton Piller injunction were stated in Ferodo Ltd. v. Unibro Stores
(1980) Fleet Street Report 489, thus:

1. The applicant must show that the property is in the possession of the defendant;
2. That the defendant is likely to destroy the property before the application on notice can be
made;
3. That his (Applicant’s) case would be greatly frustrated if the order is not made.

Argument against Anton Pillar order

It has been argued that the jurisdiction of the court to grant Anton Pillar injunction poses a serious
threat to the defendant’s constitutionally guaranteed rights to privacy guaranteed by section 37 of the
1999 Constitution (as amended). Notwithstanding the fact that section 22(1) of the Copyright Act
permits the grants of Anton Piller Injunction, upon an ex parte application, it is submitted that the
Copyright Act cannot and does not override the constitutional provisions relating to right of privacy.80

Thus, in the case of Akuma Ind. Ltd. v. Ayman Ent Ltd. [1999] 13 NWLR [Pt. 633] 68 at 88, the Court
of Appeal held inter alia that an Anton Pillar Injunction by its very nature is ex parte subversive of the
fair hearing provisions of section 33 of the 1979 constitution (now section 36 of the 1999 constitution
77
Cap C28, Laws of the Federation of Nigeria, 2004; formerly Section 22(1), Cap 68 LFN 1999.
78
Section 251 (1) (f) of the 1999 Constitution (as amended)
79
Tugbiyele, T.A.O (2006) Debt Recovery [ Mareva Injunction and Anton Piller Orders] 1st edition, Noble Printers
Lagos Nigeria, P. 24.
80
Afe Babalola. Injunctions and Enforcement of Orders 2nd ed. (Ibadan: Intec Printers, 2007) p 170
as amended). The court did not hold that ex parte injunctions for “seizure” in Anton Pillar relief cannot
be granted, but that the court is to exercise caution. The Court at pages 89, 90 held that; where an
application for Anton Pillar order is sought the court should see it fit to refrain from an order that is
wholesome and comprehensive in its tenor and application, the court being fully aware that it is
merely relying on the affidavit of one party. Prudence demands that it ought to have made the order
with care and simplicity and caution not to destroy.

It is therefore necessary that the court should ensure that the likely abuse of the order is checked,
discharged or varied. Like other orders of injunction obtained ex-parte a party affected by an Anton
Pillar order may apply under Order 8 Rule 11 of the Federal High Court (Civil Procedure) Rules 2000
for a variation or outright discharge of that order. The rules enjoin any such affected party to bring his
application on notice to the party who secured the order against him, within seven days of the service
of the order or within any such further time as the court may allow. A veritable ground for the
discharge of an Anton Pillar Order is on want of adequate disclosure of material facts. A plaintiff who
suppressed facts which he ought to have brought to the attention of the judge at the time he was
applying for the order ex parte will have his order discharged. He may also be penalized.81
It is submitted that the court ought to exercise great caution and restraint in the grant of Anton Pillar
injunction in view of the tendency of plaintiffs and their solicitors executing an Anton Pillar Order in
such a way as to abridge constitutional and other civil rights of the defendant.

iii. QUIA TIMET INJUNCTION

The latin Phrase quia timet means “because he fears”. It is an injunction relating to a virtually
irreparable wrong merely feared or threatened, but not yet committed. The plaintiff must show a very
strong probability of imminent grave damage accruing to him. The cost to the defendant must also be
considered. What is aimed at is justice between the parties, having regard to all the circumstances.82
Both the origin, as well as the purpose of a quia-timet injunction were aptly explained by Lord Up
John in Rollands Brick Ltd. v. Morris (1970) A.C.652 when he stated that:

81
Columbia Pictures Industries Inc. V. Robinson (1987) Ch. 38
82
See Flopper v. Rogues (1975) Ch.43
 “…. To prevent the jurisdiction of the court being stultified, equity has invented the
quia timet action, that is, an action for an injunction to prevent an apprehended legal
wrong though none has occurred at present.”
In effect, what is to be aimed at is justice between the parties having regard to all the circumstances
relevant to the case.83

PRINCIPLES FOR GRANT OF AN INJUNCTION

Certain procedural principles have been developed over the time by the Courts to guide the grant of
injunction. The violation of any of this principle will vitiate a claim for injunction. The principles guiding
the grant or refusal of an injunction are the same as in interim, interlocutory and perpetual injunctions
except for the requirement of a situation of real urgency for an interim injunction. They were well
stated In the case of Obeya Memorial Hospital v. A.G. Fed. & Anor,84 as follows:
Legal Right: the rule is that the court will grant an injunction to support a legal right. Where the
applicant has no legal right recognizable in law to be protected, the court will not grant an
injunction.85

Substantial issue to be tried

The applicant has to establish that there is a serious issue to be tried. This, he has to show from his
affidavit. The court looking at his affidavit and the counter-affidavit may satisfy itself that there is a
triable issue at the trial. So the establishment of a triable issue is sufficient for the grant of the
injunction and not the strength of the case.

Balance of convenience
In considering this, the court looks at who will suffer greater harm or hardship if the application is
refused or granted. In determining the balance of convenience, the court should also explore the
issue of whether damages can be adequate compensation. If damages will adequately compensate

83
Joy Kaura “An Application of the Equitable Remedy of Injunction in Nigerian Courts”
http://www.thelawyerschronicle.com/an-application-of-the-equitable-remedy-of-injunction-in-nigerian-courts/
84
(1987) 3 NWLR (Pt. 60) 325.
85
Akapo v. Hakeem (1992)7 SCNJ 119 at 137; Dyktrade v. Omnia (2000) 7 SCNJ 90.
the hardship, the balance of convenience will not be said to lie on the side of such a person. 86 So, the
question is normally, “on whose side lies the balance of convenience?

Irreparable damage or injury

The Applicant must show that he will suffer irreparable damage or loss not capable of being
compensated in damages.

Conduct of the parties

The Court considers the conduct of the parties both before and at the time of the application. Since
the grant of injunction is an equitable remedy, the parties must come with clean hands.

Completed act
Normally, if the act being complained about by the applicant is completed act, the court will not grant
an injunction, but will rather give the case an accelerated hearing and give final judgment on the
basis of facts and evidence before court.
Undertaking as to damages
The Applicant must give undertaken to pay damages to the Respondent should it be proved that he
was not entitled to the injunction at the end of the case.

3. DAMAGES
Damages can be defined as monetary compensation that is awarded by a court in a civil suit to an
individual who has been injured through the wrongful conduct of another party.87
The law presumes damages to flow naturally from the injury complained by the victim88.
Damages attempt to measure in financial terms the extent of harm a plaintiff has suffered because of
a defendant's actions. Damages are distinguishable from costs, which are the expenses incurred as
a result of bringing a lawsuit and which the court may order the losing party to pay.89

86
Ayorinde v. AG Oyo State (1996) 2 SCNJ 198
87
http://legal-dictionary.thefredictionary.com/damages
88
Shugaba’s case spura
89
http://legal-dictionary.thefredictionary.com/damages
 The purpose of damages is to restore an injured party to the position the party was in before being
harmed. As a result, damages are generally regarded as remedial rather than preventive or punitive.
However, Punitive Damages may be awarded for particular types of wrongful conduct.
Before an individual can recover damages, the injury suffered must be one recognized by law as
warranting redress, and must have actually been sustained by the individual.
There are different categories and types of damages. Some of them will be briefly discussed below:

a. Compensatory Damages
Damages which are intended to restore what a plaintiff has lost as a result of a defendant's wrongful
conduct. Its purpose is to compensate the victim for the injury he has suffered and it seeks to put
him as far as possible in the position he would have been if not for the other party’s wrong 90. It
includes:

i. General Damages: This represents the loss to the plaintiff which cannot be precisely
quantified. It includes all non-financial losses (past and future) and future financial loss.
Items of general damages may not need and should not be specifically pleaded, but
some evidence of such damage is required. 91

ii. Special Damages: These are damages that the law does not presume and which must be
92
specifically pleaded and proved. It is the particular type of damage (beyond general
damage) which results from the particular circumstance of the case and of the plaintiff’s
claim to be compensated, for which he ought to give warning in his pleadings in order that
there may be no surprise at trial.93 Special damages cannot be made by the courts
individual assessment but must be strictly based on the evidence before the court. See
the case of Dumez (Nig.) Ltd v. Ogboli94

b. Nominal Damages
90
Nigerian Law of Torts, Gilbert Kodinlinye & Oluwole Aluko, (2nd Ed.) 2007, spectrum books limited @ pg 258
91
Ibid @ pg 261
92
ibid
93
Kodinlinye & Aluko op.cit @ pg 260
94
(1973) U.I.L.R 306 @ pg 311
 This consist of a small sum awarded to a plaintiff who has suffered no substantial loss or injury but
has nevertheless experienced an invasion of rights.

c. Punitive Damages
Punitive damages, also known as exemplary damages, may be awarded to a plaintiff in addition to
compensatory damages when a defendant's conduct is particularly willful, wanton, malicious,
vindictive, or oppressive. Punitive damages are awarded not as compensation, but to punish the
wrongdoer and to act as a deterrent to others who might engage in similar conduct. Punitive
damages combine punishment and the setting of public example. On occasion punitive damages can
be greater than the actual damages95
The amount of punitive damages to be awarded lies within the discretion of the court, which must
consider the nature of the wrongdoer's behavior, the extent of the plaintiff's loss or injury, and the
degree to which the defendant's conduct is repugnant to a societal sense of justice and decency. An
award of punitive damages will usually not be disturbed on the grounds that it is excessive, unless it
can be shown that the jury or judge was influenced by prejudice, bias, passion, partiality, or
corruption96.

d. Liquidated Damages
Liquidated Damages constitute compensation agreed upon by the parties entering into a contract, to
be paid by a party who breaches the contract to a non-breaching party. Liquidated damages may be
used when it would be difficult to prove the actual harm or loss caused by a breach. The amount of
liquidated damages must represent a reasonable estimate of the actual damages that a breach
would cause. A contract term fixing unreasonably large or disproportionate liquidated damages may
be void because it constitutes a penalty, or punishment for default. Furthermore, if it appears that the
parties have made no attempt to calculate the amount of actual damages that might be sustained in
the event of a breach, a liquidated damages provision will be deemed unenforceable. In determining
whether a particular contract provision constitutes liquidated damages or an unenforceable penalty, a

95
Gibeaut, John. 2003. "Pruning Punitives: High Court Stresses Guidelines for Deciding
96
ibid
court will look to the intention of the parties, even if the terms liquidated damages and penalty are
specifically used and defined in the contract.97
The above listed types and categories of damages are not exhaustive as there are other types of
damages that can be awarded especially depending on the aspect of law where the wrong was
committed. Some of these include aggravated damages (torts), contemptuous damages (torts), cost
of litigation etc.

CONCLUSION AND RECOMMENDATIONS

Remedies are inexhaustible as they are numerous. The list of types and categories of remedies
explained in this paper is not exhaustive as there are so many other types of remedies that can be
awarded by the courts in civil matters; especially depending on the aspect of law where the wrong
was committed. Other remedies like specific performance, rescission, restitution etc are types of
remedies that can be awarded by a court.
Once a person’s right has been breached, such person should be entitled to a remedy. A good legal
system will produce efficient remedies and will regard such remedies as of utmost importance to the
administration of justice.
Fortunately, in Nigeria and more civilized countries like the United States and the United Kingdom,
the law provides for efficient and adequate remedies.
It is however postulated by the writer, that laws should be reviewed and revised regularly in order to
expand and broaden the scope of remedies; especially so as to accommodate and to cater for
wrongful acts that have recently developed as a result of globalization, civilization and technological
advancement.
Also, punitive remedies should not be left to the discretion of the courts alone but should be
expressly provided for in the laws in order to ensure that people think twice before inflicting a
wrongful act on another person and also to deter people from infringing on other people’s rights.

INADEQUACY OF JUDICIAL CONTROL

97
West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc.
A. PUBLIC COMPLAINT COMMISSION (OMBUDSMAN). (see Ese Malemi, Administrative Law,
(2013) 4th Edition, Princeton Publishing Company for this topic)
Introduction
The Ombudsman simply means ‘the people’s representative’. It is an independent public agency that
receives and investigates complaints from the public against government and its officials and
recommends remedies. Whether the government of the day is military or democratic, the
ombudsman plays a vital role on protecting the ordinary man from excesses of the government or its
officials. Any country setting up this body must take into consideration its political, social and
economic make up as these will determine its modus operandi and its effectiveness in the protection
of citizen’s rights.
An ombudsman is a form of arbitration and is an alternative to court action in appropriate instances
that admit it. The duty of ombudsman is to stand between and represent the complainant, before the
government, or body against which complaint has been made and reconcile their differences with a
view to finding a solution. When the ombudsman remedy system fails, parties can resort to court
action to resolve their differences.

Origin and Development of Ombudsman

The origin of the commission has been traced to the Swedish Ombudsman. It is believed that the
ombudsman arose by chance rather than design. The history of the ombudsman as known all over
the world dates back to the office of “Justitie ombudsman,” which was established by the parliament
‘watchdog’ in Sweden in 1809. In 1919, over a century after Sweden, Finland adopted the concept,
Denmark followed in 1954 and Norway became the last of the Scandinavian countries to adopt the
concept in 1962.
In the Soviet Union, it is called, The Procurator General- who exercises very powerful supervision
over government agencies to protect the interest of the common man. In Britain, it is known as The
Parliamentary Commissioner for Administration. It is pertinent to note that this institution is not
confined only to countries operating a Parliamentary system of government. Hence, countries with
one party system like Soviet Union, Poland and Romania, have adopted the Ombudsman.
Today, many countries have felt the need to set up similar body to protect the rights of their citizens
from governmental excesses. Hence, the primary duty of ombudsman is to investigate and report to
the legislature or other body on the complaint of the citizen, against government or officer of the
state. In summary, the system has now spread throughout the length and breadth of the world.

History of Ombudsman in Africa and Nigeria

The first African country to adopt the system is Tanzania which, under its interim constitution of 1965,
provided for the basic framework of the institution. It was called the Permanent Commission of
Enquiry (PCE). Since Tanzania blazed the trail in establishing the ombudsman institution in Africa in
1965, several other African countries have introduced and maintained ombudsman institution with
varying degrees of success. The ombudsman in Africa has been adopted by regimes that have little
resemblance to the liberal democracies with which the institution, in its classic form, is usually
associated. Thus, the Tanzania PCE, like Zambia’s Commission for Investigation (CFI), operated
under a one–party system, while Nigeria’s Public Complaints Commission (PCC) was conceived and
established first by military government. It was adopted and continued during democratic
dispensation. In Mauritania and Zimbabwe, similar institution was introduced with great vigour.

In many respects, the introduction of this institution within the essentially closed and authoritarian
African regimes of the past was a contradiction in terms. Under the apartheid system, South Africa
sought to use the institution to mask the inherently anti-democratic and inhumane nature of the
regime. The ombudsman institution is now widely accepted as one of the key components of the
democratic transition in Africa. The first generation of ombudsman institutions is a clear reflection of a
more open and liberal atmosphere on the continent.

Nigeria is a country of about 200 million people, with a complex system of administration due to the
federalism system of government. As a today, Nigeria has 36 states and a federal capital territory.
The visible effect of large population and many states administration with various levels of officials
and agencies necessitated having a body that can checkmate administrative excesses. Hence, the
reactions of the public to the general apathy in the public service of a country are usually unpleasant.
When people are hard pressed and the government is indifferent to the plight of the people, there is
bound to be some form of mob violence.
In 1968, there was a communal disturbance in the then Western State of Nigeria. Lives and
properties were destroyed, the military government of the state responded by setting up a judicial
inquiry into the cause of the commotion. Honourable Justice Olu Ayoola, the Judge of the then
Western State High Court who headed the investigation submitted a report which recommended
thus:
‘Government should consider the possibility of appointing a public complaints commissioner on the
same basis as the Parliamentary Commissioner in Britain (otherwise called Ombudsman) whose
duties would include the spotlight of grievances, receipt of complaints of a public nature, the
investigation of such complaints and the recommendation of quick remedies to government’
The report came during the military era, but the recommendation was eventually rejected. A
government paper on the report stated that the recommendation could not be accepted in the
present circumstances. Though the Western government rejected the recommendation, the North
Central Government by the Public Complaints Bureau Edict of 1974 (Edict No. 5), set up the Public
Complaint Bureau. The Edict provided for the appointment of a Commissioner who shall be
independent from the executive arm of government. See sections 3 (2) and 9 (2) of the Edict.
In spite of this provision, the Military Governor however had the right to remove him on the grounds
of disability, misconduct and neglect of duty. (see section 4 (1) and (3) of the Edict.
The second event that led to the establishment of Ombudsman in Nigeria was Udoji Report, which
was set up to look into the conditions of service of public workers in Nigeria in 1974 tagged the Public
Service Review Panel. The Panel in its report recommended the setting up of a body called the
Ombudsman for better administration in the country. Hence, when Gen. Murtala Muhammed
assumed the seat of power in 1975, he sent out a team to study the working of the ombudsman in
other parts of Africa. In 1975, the federal military government promulgated the Public Complaints
Commission Decree (PCC) No. 31 of 1975. The Decree established the Public Complaint
Commission. The Decree was amended by Decree 21 of 1979, (now Cap P37 Laws of the
Federation of Nigeria 2004). It has been revalidated and incorporated into the Constitution of the
Federal Republic of Nigeria 1999 (as amended). See section 315 (5) of the Constitution

Types of Ombudsman
Basically, there are three forms of ombudsman and this is determined on the basis of mode of
appointment. The first is the ombudsman who is appointed by parliament and responsible to it. The
second is the ombudsman appointed and removable by the executive. This kind of ombudsman
spans both the democratic western world and Eastern Europe. Example is the North Central Public
Complaint Bureau of 1974. The third is the type of ombudsman who is appointed jointly by the
executive and the legislature and controlled by both.
Note that the mode of appointment, control and removal is not necessarily inconsistent with the
effective discharge of the functions of an ombudsman.

Structures of the PCC.

The Chief Officer of the Commission is the Chief Commissioner who is assisted by such number of
other Commissioners who were answerable to the Supreme Military Council during the military era,
but now appointed by the National Assembly. See section 2 (4) and (5) of the PCC Act. The
Commission may establish such number of branches of the Commission in the States of the
federation as the National Assembly may from time to time determine. See section 1 (2) of the Act
The Chief Commissioner is appointed by the National Assembly and shall be a person of proven
integrity and possesses such other qualifications as the National Assembly may determine. The
Chief Commissioner and other Commissioners are responsible to the National Assembly for the
purpose of their discipline and may ultimately be removed by the National Assembly if found wanting.
A Commissioner holds office for a term of three years in the first instance and is eligible for re-
appointment for a second and final term of three years. Their salaries are determined by the
President, who may also direct payment of gratuity for the periods of their service.
The rest of the personnel of the Commission are appointed by the Chief Commissioner in
accordance with section 3 of the Act and their duty is to assist him and other Commissioners in the
discharge of their functions. Being civil servants, the salaries and allowances of these supporting
staff is governed by Federal Civil Service Commission Rules. See section 3 (2) of the Act.

The Rationale for Establishing PCC

In any bureaucratic society, it is unavoidable that either through inadvertent, indifference or just plain
exercise of power, injustice is done. It is open to the ordinary man to seek redress when this occurs.
He may choose to go to court to seek this redress, if he can afford it. The ombudsman remedy has
been necessitated world-wide by a number of reasons and it includes the following among others:
1. The primary reason for establishing PCC is to promote justice for the individual citizen
without, which there can hardly be genuine peace and stability in the country. Hence,
ombudsman is an institution that aims to emancipate citizen from mal-administration.
2. The need to make persons who are aggrieved by official conduct to know that someone
cares.
3. Inadequacies of the remedies put in place by the legislature, the executive and the judiciary.
4. It is less expensive mode of obtaining remedy in comparison with other available alternatives.
Hence, when party lack the financial ability to institute action in court, PCC is a better
alternative. If a complainant pays any money to lodge complaint to the Commission at all, it is
very small compare to cost of civil action.
5. Litigation is often slow, cumbersome, complex, costly and frightening to the average person.
As a matter of fact, a number of short-coming noted in Nigerian judicial and administrative
systems are minimal under the ombudsman system. For instance, injustice sometime occurs
in specific situation where aggrieved citizens were denied the opportunity to assert their legal
right in view of some unjust or obnoxious legislation. A good example is jurisdictional issues.
6. Abuse of power by public authorities and private bodies and inadequate control of these
bodies, especially in peculiar cases.
7. Absence of a specialised, or small claims court system where minor claims and relatively less
significant issues and grievance, can be heard and timeously determined between parties,
within a few minutes, or within a day, and so forth, in an atmosphere that is devoid of the
formalities of a regular court. For instance, in these courts, the parties appear for themselves
instead of engaging lawyers.
8. The need to ensure the full protection of the civil rights and liberties of the people.
9. It encourages a relatively easy method of dispute resolution, inexpensive and bitterness
which is characteristic of legal proceedings.

Powers and Duties of Ombudsman

 The duty of an ombudsman is to investigate with special care administrative acts which are or
appear to be: contrary to any law or regulation, mistake in law or arbitrary in the ascertainment of
fact; refusal, neglect, action, inaction, oppression, unreasonable behavior, mal-administration, or
improper in motivation or based on irrelevant consideration, injustice in a government
department, or agency or in the hand of public officers, private company or other persons and so
forth.
Furthermore, as an independent body, it is empowered to investigate complaints and ensure
impartial review of the administrative decision, action or inaction which appears unjust and
thereby ensure relief or protection for an aggrieved party from any injustice arising from abuse of
power. Premised on the foregoing, section 5 (2) of the Act enumerates the powers and duties of
the Commission to investigate and recommend solution for any action involving the following
bodies:
1. Any department or ministry of the Federal or any State Government,
2. Any department of any local government authority set up in any state in the federation,
3. Any statutory corporation or public institution set up by any government in Nigeria,
4. Any company incorporated under or pursuant to the Companies and Allied Matters Act
whether owned by government or private individuals in Nigeria, and
5. Any officer or servant of any of the aforementioned bodies.
In view of the foregoing, the categories of complaints which the Commission can investigate are:
a. Non-payment of gratuities and pensions;
b. Compulsory acquisition of lands and house without adequate or delayed compensations;
c. Illegal termination of appointments both by public and private employers;
d. Unpaid or delayed wages;
e. Delay of action by the police and alleged collusion or contributory negligence on the part of
the police;
f. Illegal demolition of property;
g. Delay in approval of building plans by the Town Planning Authorities;
h. Chieftaincy matters;
i. Non-payment of insurance claims;
j. Delay of examinations result and late delivery of certificates by WAEC;
 k. Denial of retirement benefits; and
l. Refusal to grant study leave with or without pay or to grant transfer of service etc.
All commissioners and all the staff of the commission shall maintain secrecy in respect of matters so
designated by the reason of source or content. However, a commissioner may, in his report, disclose
such matter as in his opinion ought to be disclosed in order to establish grounds for his conclusion
and recommendations. In the exercise of his duty, the Commission is not subject to the control or
direction of any other person or authority.
It is the duty of anybody or person required by the commission to furnish information to do so not
later than thirty days from the receipt thereof. Failure to honour the invitation of the Commission
either to testify or give required information is an offence and punishable by a fine of N500 or
imprisonment for a term of six months or both. See section 9 of the Act.

Methods of Lodging a Complaint with the Commission

By virtue of section 5 (3), the Chief Commissioner may determine the manner by which complains
are to be lodged. However, in practice, complaints are usually made to the Commission through: oral
report, delivery of report by hand or post and transmission of report by other means of
communication such as telephone, e-mail, telex and other electronic communications etc.
Any commissioner may decide in his absolute discretion the manner he should notify the public of his
action or intended action in any particular case. Any commissioner shall have access to all
information necessary for the efficient performance of his duties and for this purpose, may visit and
inspect any premises belonging to any person or body. For instance, government’s department or
ministry and statutory corporation and companies premises within the areas of its jurisdiction as
mentioned in section 5 (2) of the Act. Hence, it is an offence under the Act to obstruct or interfere
with, assaults or resists the Commission in the performance of its duty. Similarly, any person who
aids, induces or abets any person to obstruct or interfere with the Commission in the performance of
its duty shall be liable to payment of a fine of N500 or imprisonment for a term of six months or both.
See section 8 of the Act.
Where concurrent complaints are lodged with more than one Commissioners, the Chief
Commissioner shall decide which Commissioner shall deal with the matter and his decision thereon
shall be final.
Limits to the Power or Jurisdiction of the Commission
Section 6 of the Act limits the power of the Commission; hence, the commission shall not investigate
any matter:
1. That is clearly outside its terms of reference;
2. That is pending before the National Assembly, the Council of State or the President;
3. That is pending before any court of law in Nigeria;
4. Relating to anything done or purported to be done in respect of any member of the armed
forces in Nigeria or the Nigeria Police Force;
5. In which the complainant has not exhausted all available legal or administrative
procedures/remedies;
6. Relating to any act or thing done before 29 July 1975 or in respect of which the complaint is
lodged later than twelve months after the date of the act or thing done from which the
complaint arose; and
7. In which the complainant has no personal interest.
In any case where the commission decides not to investigate a complaint, it shall state the reason(s).

Recommendations after Investigation

The commission may recommend to the appropriate person or body after due investigation of any
complaint any of the following steps:
a. That a further consideration of the matter be made;
b. That a modification or cancellation of the offending administrative or other act be effected;
c. That an alteration of a regulation or ruling be effected;
d. That full reasons behind a particular administrative decision or other act be given;
e. The commission may, where it feels that the existing laws or administrative regulations or
procedures are inadequate refers the matter to the National Assembly or House of Assembly
or any other appropriate person or body for consideration;
f. Where the commission is of the opinion that a crime has been committed, it shall report it
finding to the appropriate authority that the person be prosecuted.
 g. The commission may also recommend disciplinary action to be against any person in
appropriate circumstances. See section 7 of the Act.

Immunity from Legal Process

No Commissioner shall be liable to be sued in any court for any act done or omitted to be done in the
due exercise of his duties. Similarly, all reports, statements or other communications and records of
any meeting, investigation and proceedings of the commission are privileged in that its production
cannot be compelled in any legal proceedings unless with the consent of the Attorney General of the
Federation in the public interest. See section 10 of the Act. See also section 191 of the Evidence Act
2011 (official communication).

LOCAL GOVERNMENT ADMINISTRATION

Introduction
The local government system as we have it today in Nigeria, is guaranteed by section 7(1) of the
Constitution of the Federal Republic of Nigeria 1999 (as amended). In a democratic system, it is the
National Assembly through an ACT that creates the local government areas. Section 8(3) makes it
abundantly clear that “A bill for a Law of the House of Assembly for the purpose of creating a new
local government area shall only be passed if:-

(a) A request supported by at least two-thirds majority of members (representing the area demanding
the creation of the new local government area) in each of the following; namely: (i) The House of
Assembly in respect of the area, and (ii) The local government councils in respect of the area is
received by the House of Assembly;

(b) A proposal for the creation of the local government area is thereafter approved in a referendum
by at least two-thirds majority of the people of the local government area where the demand for the
proposed local government area originated;

(c) The result of the referendum is then approved by a simple majority of the members in such local
government council in a majority of all the local government councils in the State; and
(d) The result of the referendum is approved by a resolution passed by two-thirds majority of
members of the House of Assembly.”

At the end of Indirect Rule system of the colonial administration, local communities in Nigeria were
governed through collaboration by family heads with village heads who met in the public square of
town centres to discuss their problems and form a consensus on actions towards self-development.
Since then, the management of the affairs of people at the grassroots has passed through several
changes with successive governments in Nigeria. After the Nigerian civil war ended in 1970, serious
plans were made to rehabilitate local governments. Today local government council areas form the
third tier of government. The first tier is the Federal Government while the second tier is the State
government.
In local government administration, local authorities directly buy the people in the grassroots,
attempting to improve the social, economic levels of their people through provision of social services
(better life) for the inhabitants of their local government areas. As already noted, sections 7 and 8 of
the 1999 Constitution guaranteed independent existence of local government areas.

Status of Local Government Administration

According to section 7(1) of the 1999 Constitution: “The system of local government by
democratically elected local government councils is under this Constitution guaranteed; and
accordingly, the Government of every State shall subject to section 8 of this Constitution, ensure
their existence under a Law which provides for the establishment, structure, composition, finance and
functions of such councils.”
In a modern state, the local government as the third tier of government is the lowest level of
government where the people in the grassroots elect from among themselves (inhabitants of the
area), people of integrity to manage their affairs. Today Nigeria has 774 local government areas. The
number has increased steadily from 299 in 1970 and 301 in 1979. The administration of each local
government area consists of a Chairman who is the Chief Executive of the local government and a
designated number of elected members who are called Councilors. They are democratically elected
by the people of the local government area, one of the qualifications for election being residency in
the area. Each local government area is further divided into wards for ease of administration.

Meaning and Reasons for the Establishment of Local Government

The local government administration means an administration that is powered by local government
people, charged with the responsibility of conducting business for the local communities in the
designated area. Although a local government area is inferior to the Federal and State governments,
it however has independence to administer its resources and to make decisions affecting the people
in the local government area. It is legally distinct from the Federal and State governments.

Reasons for the Creation of Local Government

(a) Local government areas were established to provide designated local communities the legal
authority to conduct their own affairs in line with their traditions and customs.
(b) The local government provides an avenue for mobilizing local communities to support community
and social development i.e. enforcing community and social development.

(c) It provides for the people of the local government area, a voice for the purpose of communication
with the State and Federal Governments. Their elected representatives represent them at all
meetings at federal and state government levels.

(d) Local government system affords the people the opportunity of participating in government they
themselves have elected democratically i.e. a local government administration elected by the people
of the local government for the local government.

Functions of Local Government Councils

The functions of local government councils are set out in the first schedule of the Nigerian
Constitution. Accordingly, the main functions of a local government council are as follows:
(a) The consideration and the making of recommendations to a state commission on economic
planning or similar body on: (i) The economic development of the state, particularly so far as the
areas of authority of the council and of the state are affected, and (ii) Proposals made by the said
commission or body;
(b) Collection of rates, radio and television licenses;
(c) Establishment and maintenance of cemeteries, burial grounds and homes for the destitute or
infirm;
(d) Licensing of bicycles, trucks (other than mechanically propelled trucks) canoes, wheel barrows
and carts;
(e) Establishment, maintenance and regulation of slaughter houses, slaughter slabs, markets, motor
parks and public conveniences;
(f) Construction and maintenance of roads, streets, street lighting, drains and other public highways,
parks, gardens, open spaces or such public facilities as may be prescribed from time to time by the
House of Assembly of a state;
(g) Naming of roads and streets and numbering of houses;
(h) Provision and maintenance of public conveniences, sewage and refuse disposal;

(i) Registration of all births, deaths and marriages;

(j) Assessment of privately owned houses or tenements for the purpose of levying such rates as may
be prescribed by the House of Assembly of a State; and
(k) Control and regulation of: (i) Out-door advertising and boarding (ii) Movement and keeping of pets
of all descriptions (iii) Shops and kiosks (iv) Restaurants, bakeries and other places for sale of food
to the public (v) Laundries, and (vi) Licensing, regulation and control of the sale of liquor.”

Sources of Local Government Revenue

In order to discharge its responsibilities to the relevant local government, the local government
council derives its revenue from the following sources:

(a) Government Statutory Revenue Allocation

Government statutory revenue allocation from the federation account is shared to each local
government area of the federation. 23% is shared from the federation account to each local
government area. The disbursement from the federation account is sent direct to the local
government through the respective state governments.

(b) Local Rate

Local government councils add to their revenue by collecting rates which include ratio and television
licenses, poll tax and rates on property including lands, buildings and related property.
(c) General Tax
The general tax which the local government depend on include (i) Community tax which is the tax
that is levied on every adult male within the community. Usually village heads or baales expedite this
collection because they know their able-bodied adult males in the villages or quarters. (ii) Cattle Tax
which is prevalent in the Northern states where the tax is called jangali. The rank and file of cattle
owners is known to village heads and the chairmen of cattle owners association collects this tax from
their members for submission to the local government through the Village heads.

(d) Grant from State Government

In addition to allocation from the federation account which the Federal government makes to the
local government, State governments also give to the local government about 10% of internal
revenue generated from the state.

(e) Various local government councils are regarded as having “legal personalities”.
They have the capacity to borrow money to finance their major projects. With the approval of the
relevant state government, local government councils can raise loans from financial institutions.
(f) Other Sources of Revenue
Local government councils may also generate revenue for their operations from: Hospitals, Car
parks, Hotels, Bicycle licenses, Tricycle licenses, Commercial motorcycles, Land registration, Forest
receipts, Slaughter houses, marriage licenses etc. Court fees arising from divorce proceedings, fines,
levy on inheritance and fees from civil suits.

Problems Confronting Local Governments

It is a consensus of opinion nationwide that local government councils suffer from the following
problems:
(i). Corruption: There is a basic assumption that elected officials into a local government
council administration exercise the freedom of decision making which observers have
noted as almost operating without supervision. They have accusations of diversion of
money meant to support public programmes to serve private interests. Embezzlement of
misappropriation is the bane of local government administration. This is believed to be
rampant in most local government administrations in Nigeria.

(ii). Ineffective Leadership: It is assumed that the leadership of most local government
areas in the country is inept. As soon as the elected officials are sworn in, they begin
scheming for re-election in order to prolong their tenure. As a result of this, the chairman
of council plays it safe in coordinating a working relationship with his departmental heads.
In the process of buying time and remaining in the good books of local government
workers, traditional rulers and heads of wards. The chairman condones lapses from all
concerned resulting in a rudderless leadership.

(iii). Poverty: All local government councils are not endowed with natural resources in the
same way. What is common to all local government councils is the revenue they are
allocated from the federation account by the federal government. Beyond that, some local
government areas generate more revenue than others depending on the natural
resources in their areas of operation. So, while some local government areas have a lot
of internally generated revenue to support their projects and overheads, others have not.
In other words, some local governments are viable and others are not. The criterion for
determining this depends on the amount of money the council generates from internal
funds.

(iv). Dearth of Skilled Manpower It is well known that it is the skilled manpower of an
organization that leads it to actualize its objectives but in the case of local government
areas, evidence abounds that there is dearth of skilled manpower. Political leaning and
consideration to some extent influences staff acquisition. There do not appear to be
highly skilled personnel (technically, financially and administratively) to offer professional
advice to the administrative hierarchy of local government areas.

(v). Poor Interface with State Government: It is now well known that local governments
whose chairman belongs to different political parties from the state governor appear to be
confrontational and uncooperative with the state governor. Some Governors have taken
draconian measures to cow stubborn local government chairmen into submission. One of
such measures is the erosion of the areas of influence of the local government by taking
over the services hitherto provided by local government councils. The result is forcefully
removing part of the money accruing to local government councils from the federation
account purportedly to pay for the services which the state government has allocated to
itself. Other problems exist which deter the local government councils from achieving
their objectives but this presenter believes that healthy human relations and transparency
will reduce the conflict between local government councils and the state government.

Control of Local Government Operation

There is a need to control the activities of local government councils in Nigeria. If they are
left unchecked, the possibility is that they will abuse the freedom to operate without
checks and balances. The following are ways of controlling local government councils in
Nigeria.

(a). Ministry of Local Government and Chieftaincy Affairs: Every state in the federation
has a ministry of local government. The ministry should step up its responsibilities in
supervision of local government activities and laws. It should constantly determine new
ways of improving their relationship with local government in order to create the desired
spirit of cooperation in which sound advice and constructive criticism as regards policy
formulation and implementation can be generated to the local government councils.
(b). Inspection of Local Government Establishments: It is the responsibility of state
government to inspect periodically some services which local government councils render
to their local communities e.g. school inspection, roads and health institutions within the
local government area. If local government councils know that the state government
through its agency will insist on standards through periodic inspection of certain facilities
within the local government area, they will be more committed to doing the right things.

(c). Intervention by the Commissioner for Local Government: The commissioners for
Local Government in the various states have the right, upon consultation with the state
government to dissolve erring local governments. This is a rare occurrence but the
powers are there for Commissioners for Local Government to dissolve a local
government that is reckless financially and corrupt in its operations. However, some
courageous Commissioners for Local Government have exercised this power in selecting
local government in the past. In such circumstances corrupt and inept local government
councils were dissolved and Care-taker Committees were installed on an interim
administration basis before by-elections were held. According to Nwabueze, excesses
abound where elected local government councils were “being capriciously dissolved and
replaced by appointed agents of the State government, the so-called caretaker
committees or management boards or sole administrators”.

(d). Strict Disciplinary Measures Against Defaulting Officials of Local Government

Councils:
The State Governments are empowered to appoint and to dismiss stubborn local
government officials for gross misconduct through the unified local government services
board which has responsibility to the state government civil service commission. The
above are various control measures which can be exploited by state governments and
officers to whom the state government may delegate to control local government
councils. It is recommended that state governments would take the control of local
government areas as sacred duties because as the third tier of government, local
government councils are capable of stalling state government activities at the grassroots
if their services are poorly rendered and local government finances embezzled or
misappropriated.

Conclusion
One of the ideas that motivated the introduction of organized local government system of
administration is to bring administration close to the grassroots so that local communities
will have a say in the governance of their geographical areas. This was why successive
federal administrations have always ensured the survival of local government councils in
their tenure. In addition to revenue allocation to local government councils from the
federation account, local government councils are empowered to raise revenue within the
council areas from fees and rates on market stalls, registration of births, deaths,
marriages, liquor licenses and motor park charges. Local government councils can make
life pleasant to the communities in their council areas if they execute their functions
dedicatedly. If they eschew corruption, misappropriation and embezzlement of local
government funds as has been observed in recent past, local government councils will
bequeath enduring legacies of development to their local communities.

TOPIC: ACTION BY AND AGAINST THE STATE, CORPORATIONS INCLUDING

LOCAL GOVERNMENT COUNCILS, LIABILITY OF PUBLIC OFFICERS

Introduction
The law which governs proceedings by and against the State in Nigeria is part of our
inheritance from the colonial era. It was imported from Britain by our colonial
administrators, and since then has not been subjected to any serious local modifications,
even in independent Nigeria. Consequently, it is still the same as the English Law of
Crown Proceedings, which was in force before the Crown Proceedings Act of 1947.

For the purpose of this discussion, the term ‘State’ means ‘the government’ of the
Federation or any of the states in Nigeria and the two terms is used interchangeably.
Civil suits by the State are usually instituted either by the Attorney-General of the
government concerned or by such other officer of that government as has been
authorised by law to maintain such an action. See section 2 of the Petition of Rights Act,
1915 as subsequently amended by the Adaptation of Law Order 1954. This section
provides that suits against private persons by the government of either the federation or a
region (now state) or by any of its ministries or departments ‘shall be brought by the
Attorney-General of the Federation or of the region as the case may be or by any officer
authorized by law to prosecute such claims on behalf of the government.’

Although, this provision applied to proceedings by both federal and regional

governments, each region later made its own Petition of Rights Law. The provision of
Petition of Rights Act applied not only to claims appropriate for a petition of right but also
to all forms of claims instituted by the State.

The general rule governing proceedings against the State is regulated by suit against the
Crown in England before 1948. In fact, up to the later part of 1963, such an action had to
be instituted against the Crown itself because the government of the country were carried
on in her name, though under the immediate headship of a Governor-General and
Regional governors. Since Nigeria became a republic, those rights, privileges and
immunities, which crown had hitherto enjoy in litigation, have been claimed by the State
itself. Hence, it can now be said of the State or any of the governments in Nigeria that it
cannot be sued in its courts, and that it can neither do wrong nor authorise it to be done.

Doctrine of Sovereign Immunity

Immunity is the exemption of a person or body from legal proceedings or liability. In early
organised societies in many part of the world, the king or the leader was the head of the
community, as well as its judge. He held court, heard cases and gave judgment. He could
not be sued in his own court, as there would be no one to hear it. Legal process did not
lie against him. He was therefore immune from legal action and liability. Similarly, from
time immemorial, the King or Queen; was the first common law judge, and likewise the
monarch was immune from legal action. This was expressed in Latin maxim rex non
potest peccare meaning “the King can do no wrong.” The doctrine of sovereign immunity
grew from the old feudal structure of the English society. The feudal system was a social
system which developed in Western Europe in the 8th and 9th centuries, in which people
served a Lord in the community by working and fighting for him and in exchange were
supported and give land and protection. The Lords were in turn responsible and owed
allegiance to the King who was at the apex of the feudal system. Other societies all over
the world at one time or the others passed through similar system.

In Nigeria as well as other African countries, this common law principle of sovereign
immunity has similarity in traditional society, custom and practice. For instance, the
supremacy of the king in African society is well rooted. The king is the head of his
kingdom. Hence, all powers are derived from the king. The king sat in court with his
chiefs to minister justice in suits brought by his people. He could not be sued in the court
which he held. In the ordinary course of things, his acts were not challengeable or open
to redress, except remedies granted by the king himself. In simple term, the king is above
the law, except in certain exceptional circumstances when the king may be asked to
abdicate the thrown or open calabash, especially by the kingmakers, in pursuance of the
general will of people.

The principle of ‘the king can do no wrong,’ now applies to protect the monarch in his
personal capacity only, but not in his public capacity, as he could now be sued in their
public office or capacity usually by suing the Attorney General. The concept of sovereign
immunity now applies in a modified form to immune the President, Vice-President,
Governor and Deputy Governor in Nigeria in their personal capacity against legal action
during their tenure of office. See section 308 of the 1999 Constitution (as amended).

The concept of sovereign immunity or that the king can do no wrong in a modified form
was captured by the eminent medieval English Jurist Henry De Bracton (1268) when he
 said as follows: ‘the King ought to be under God and the law because the law made him
king’. This saying could be summarised as follows:
1. The king should not do wrong to the people, or breach the law, both of which made
him king.
2. The king should live an exemplary life and be a shining example of good citizenship,
fairness and justice.
The king in his high and privileged position should live above board. The people
should respect him and he should submit to the collective will of the people to live in
peace and freedom, free from oppression. The king should be fountain of justice and
fairness. A king in his high position was not chosen that he might become an
oppressor of the people, but that he might wield the power of the State on behalf of
the people for justice, peace, protection, welfare and development of the people.
Accordingly, it was for this reason that the king, though he could not be sued, as it
was an anomaly to issue a writ against oneself to appear and be judge by oneself,
nonetheless endorsed his consent in the words “fiat justitia,” that is “Let justice be
done” on petitions that came to him. This give rise to the petition of rights in king’s
Court.

Application of Petition of Rights

The petition of rights means petitioning to the King or State for grant of right or
consent to sue it. As a result of the numerous petitions which flowed to the medieval
monarchs, this process or procedure became known as the Petition of Rights. This
procedure was later backed by law by the Petition of Rights Act of 1860. This was the
received common law which applied in Nigeria until the 1979 Constitution came to
abolish it. This petition of right procedure of suing the government by obtaining its
consent was in force in United Kingdom till December 31, 1947, when it was replaced
by the Crown Proceedings Act 1947 which came into force on January 1, 1948.

This Act liberalised right of legal action against the government and has placed the
Crown or government as far as civil liability is concerned, in the same pedestal of any
other person. However, the king or queen still enjoys immunity from legal action in
their personal capacity though they can be sued in their public capacity, usually by
suing the Attorney General without the need of obtaining consent by way of petition.

Petition of Rights in Nigeria

The English Petition of Rights Act 1860 is a statute of general application, and it
applied in Nigeria until it was abolished. Therefore, the State or Government could not
be sued for a tort unless the consent of the State was first sought and obtained
through the Attorney General. See sections 3, 4 and 9 of the Petition of Rights Act.
The doctrine of State immunity which was in the Petition of Rights Act was also
preserved by section 45 (1) of the Interpretation Act, 1958.

This provision was not invalidated by the 1963 Republican Constitution and thus the
Act and its equivalent laws in the states remained in force until October 1, 1979, when
the 1979 Constitution came into force and abolished it and declared it
unconstitutional, null and void and of no effect whatsoever for contravening the
provisions of sections 6 (6) (b), 33 (1) and 42 (1).

All Nigerian Constitutions since then have maintained the same position. See for
instance sections 6 (6) (b), 36 (1) and 46 (1) of the 1999 Constitution (as amended).
In the case of Governor of Imo State and Att.-Gen of Imo State v Greeco
Construction and Engineering Associates Ltd (1985) 3 NWLR (Pt. 11) 71. In that
case, the respondent, who was the plaintiff in the lower court, sued the appellants for
the balance of N20,979.80 due in respect of a contract agreement entered into by
both parties. The contract was for the construction of residential quarters for
parliamentarians, but this sum of N20,979.80 was due on the certificate issued by
Apteam Integrated Consultants, appointed by the appellants, certifying that the
money is due to the respondent. The respondent came to the court by way of
summons. When the statement of claim was served on the appellants, they file an
application praying the court to dismiss the action on the ground, inter alia that the
plaintiff (respondent) should bring his action to the court by way of petition of right,
and not by issuing a writ of summons. The appellants contended that the maker of the
1979 constitution did not intend that the Petition of Right Law should be repealed,
otherwise that Constitution should have expressly repealed the said law. It was held
inter alia that the combined effect of sections 3, 4 and 5 of the Petition of Rights Law,
1963, is a denial of fair hearing entrenched in the 1979 Constitution. Since the case
cannot proceed without the fiat of the Governor and the right of the Governor to
refuse the fiat under section 5 of the Petition of Rights Law is ‘final and conclusive’
the respondent is denied access to the court, contrary to section 42 (1) of the
Constitution (now section 46 (1) of the 1999 Constitution).

See also the case of Are v Attorney General of Western Region (1960) WNLR 108. In
that case, the claim of the plaintiff was for compensation for land acquired by the
Government of the Western Region some twenty years earlier. They petitioned for
consent to sue. The fiat was not granted until October 9, 1958, by which time it was
argued for the defendant (Government) that an amendment effected by the Public
Lands Acquisition (Amendment) Law 1958 had affected the petition retrospectively
and that since 12 months had expired between the publication of the consent to sue
in the Government Gazette and the filing of the petition in court, it was statute barred
and the petition could not be entertained. On appeal, the court in allowing the appeal
of the plaintiffs held that the effect of the amendment was in future and did not apply
to the case at hand. The matter was therefore remitted back to the High Court for
hearing on its merit. See also the case of Governor of Bendel State & anor. v George
Obayuwana (1982) 3 NCLR 206.

Tortious Liability of the State before and after the Abolition of Petition of Rights Before
the 1979 Constitution, the common law immunity of the Crown from liability in tort
governs tortious liability of the State. Hence, the State cannot be sued in its court;
because, ‘State can do no wrong’ or ‘authorised the doing of any wrong’. This
principle makes action against the State in tort both impossible and futile. Thus, if a
person intended to claim against any State it had to be by way of a petition of right
and consent granted at the discretion of Government by the relevant Attorney
General. This position was maintained under the 1963 Republican Constitution. See
the case of Ransome-Kuti v A. G. Federation & others (1985) 2 NWLR (Pt. 6) 211.
The plaintiffs/appellants brought action against the defendants jointly and severally for
damages suffered when soldiers set fire to the plaintiffs’ two-storey building and other
properties, and for assault and battery of the plaintiffs. Apart from invoking the
fundamental rights provisions of the 1963 Constitution, it was a claim for vicarious
liability of the Federal Government of Nigeria for the wrongful acts of its servants and
agents, the soldiers. The defendants submitted that the Federal Government could
not be sued, that a petition did not lie against it for tort. The claim was dismissed by
the trial court. On appeal, the Supreme Court dismissed that appeal and held that the
Petition of Rights Act 1958 preserved the immunity of the State. The 1963
Constitution unfortunately did not abolish this immunity. The 1979 Constitution under
which government may be held liable was not applicable to the case as the events
leading to the claim occurred before the 1979 Constitution came into force. The cause
of action arose in 1977. See also Martins v Federal Administrator General and anor
(1963) LLR 65.

The implication of the Petition of Rights is that except where otherwise authorised by
statute, no ministry or department of State can be sued because they are not
corporate bodies. However, following the English common law, the Nigerian law
allows the injured to proceed directly against the actual wrongdoer, who may avail
himself of whatever statutory protection or defences he may have. For instance, if
sued today, any public servant may claim the protection of section 2 (a) of the Public
Officers Protection Act, 1916.
Before the army take-over the first republic, the president of Nigeria and the
governors of the regions enjoyed a special immunity from legal actions while they
remained in office. Section 161 of 1963 Constitution provided that no criminal or civil
action was to be instituted or continued against any of these chief executives during
the period he held or was required to perform the function of that office.

In colonial days, this immunity was not enjoyed by a governor; he could be sued
either in Nigeria or in England, but no execution was to be levied against him while he
remained in office. See Musgrave v Pulido (1879) 5 App Cas. 102.
On coming into operation of the 1979 Constitution, which abolished the Petition of
Rights Act, this position has been altered to some extent. For instance, section 6 of
the 1979 Constitution established courts and conferred on them power to adjudicate
and determine civil rights and obligations of every Nigeria citizen including any
question or determination by or against any government or authority. Furthermore,
section 42 (1) of the 1979 constitution followed suit when it provided that ‘any person
who alleges that any of the provision of this chapter has been, is being or likely to be
contravened in any state in relation to him may apply to a High Court in that State for
redress. This provision is now contained in section 46 (1) of the 1999 Constitution (as
amended).

The position of 1979 Constitution is sustained by the 1999 Constitution. Hence, every
Nigerian has unfettered access to sue the State except where a statute specifically
provides immunity for the administrative authority, public corporation or officer in
question. See the case of Governor of Imo State v Greeco Construction &
Engineering Associates Ltd (supra). See further the provisions of sections 6, 36 (1)
and 46 (1) of the 1999 Constitution, which confer on Nigerians free access to court for
the purpose of seeking redress for any wrongful action against the State and its
agents save in certain special circumstances.

The effect of 1999 Constitution is that the principle of Sovereign or State immunity
and the petition of rights procedure are no more applicable in Nigeria. Hence, the civil
liability of Government is similar to that of any citizen, individual or person. The
Government can now be sued in every area of law, civil or criminal. Therefore,
 government may be sued in contract, tort and so forth. As a result the courts have
readily held the government liable where its action has injured any person. See the
case of Shugaba v Minister of Internal Affairs (1981) 2 NCLR 459 and Governor of
Lagos State v Ojukwu (1986) 1 NWLR (Pt. 18) 621. In that case, title of a building
was being contested by the parties in court. Pending its determination and against an
order of interim injunction stopping the ejectment of the plaintiff. The defendant
government and the Commissioner of Police, Lagos State without an order of court
for possession forcefully ejected the plaintiff/respondent from the property in dispute.
The Supreme Court held in favour of the plaintiff/respondent and dismissed the
appeal of the appellant, that no one is entitled to take possession of premises by a
strong hand, or with a multitude of people. In spite of the above, there are today few
provisions of the 1999 Constitution that oust court jurisdiction in certain matters
namely:

i. Section 143 (10) of the 1999 Constitution: this section provides for the removal of the
President or Vice President from office. However, where this is done, section 143 (1)
provides that no proceedings or determination of the Panel or of the National Assembly or
any matter relating thereto shall be entertained or question in any court.
ii. Similar provision is contained in section 188 (1) of the Constitution with respect to the
office of Governor and Deputy Governor and proceeding of the State House of Assembly
thereof. See the case of Balarabe Musa v Auta Hamza & Others (1982) 3 NCLR 229, the
plaintiff was the Governor of Kaduna State. He brought an application for stay of
proceedings of the investigation committee appointed by the Kaduna State House of
assembly in pursuance of impeachment proceedings against him under section 170 (5) of
the 1979 Constitution. On appeal the court of Appeal held that section 170 (10) of the
1979 Constitution ousted the jurisdiction of a court of law in such matter. However, in the
case of Inakoju v Adeleke (2007) 4 NWLR (1025) 423, where the third plaintiff/appellant
Senator Adewolu Ladoja challenged his purported impeachment from office by the Oyo
State House of Assembly at a meeting of the house held on December 31, 2005, by the
18 factional member of the house against 14 members at D’Rovans Hotel, Ring Road,
 Ibadan. The meeting excluded the 1st and 2nd appellants who were at the time material the
Speaker and Deputy Speaker of the House. The purported removal from office was
riddled by many procedural irregularities or constitutional breaches of section 188 (1) –
(9) of the 1999 Constitution. The Supreme Court while granting all the reliefs of the
appellants held that the purported removal from office of the Governor was
unconstitutional, null and void for being in breach of the procedural requirements
stipulated in the 1999 Constitution.
iii. Section 158 of the 1999 Constitution: which provide for the independent of certain
statutory bodies and ousts the jurisdiction of courts with respect to their actions. The
section provides inter alia that in exercising its power to make appointments or to
exercise disciplinary control over persons, the Code of Conduct Bureau, the National
Judicial Council, the Federal Civil Service Commission, the Federal Judicial Service
Commission, the Revenue and Mobilisation and Fiscal Commission, the Federal
Character Commission, the Independent National Electoral Commission and the National
Population Commission shall not be subject to the direction and control of any other
authority or person.
iv. Section 308 of the 1999 Constitution provides immunity from legal action in a personal
capacity, for the President, Vice President, Governor and Deputy Governor. These
officers during the term of their offices no civil or criminal proceedings can be brought or
continued against any of them in their personal capacity. In this instance, any suit
pending against an holder of these offices cannot be continued during his term of office.
Such suit is either
(a). Adjourned sine die, that is, adjourned without a fixed date;
(b) Amicably settled by both parties. However, these are exceptions to this principle of
immunity and these include:

a. They may be sued in their official capacity: see section 308 (2) which provide for the
exception. Such suits are mainly brought against the holder of the offices by suing the
Attorney General of the Federation or the State Attorney General as the case may be or by
suing the President or Governor directly in his name. Suits of this nature abound, as they are
 sued now and then. See the case of A. G Federation v Abubakar (2007) 10 NWLR (Pt. 1041)
1.
b. They may be joined as a nominal party: see also section 308 (2) which provides that ‘the
provision of subsection 1 of this section shall not apply to civil proceedings against a person
to whom this section applies in his official capacity or to civil or criminal proceedings in which
such a person is only a nominal party’. Hence, the President or Governor may be joined to a
suit as nominal party. That is, in name only.
c. Removal or Impeachment Proceeding may be Initiated against them: Impeachment
proceedings may be initiated against the President, Vice President, Governor and Deputy
Governor by either the National Assembly or the State House of Assembly. See sections 143
and 188 of the 1999 Constitution respectively. In other word, the Constitution did not provide
immunity from impeachment proceedings against any of the above public officer during the
tenure of their offices. Hence, they may be removed through impeachment proceedings from
office. See Balarabe Musa v Kaduna State House of Assembly (1982) 3 NCLR 463.
d. They are not immune to Election Petitions: These public officers are not immune to election
petitions and it may be brought against the holder of these offices to determine the validity of
the election that brought them to office. See the case of Olu Falaye v Olusegun Obasanjo
(1999) 6 NWLR (Pt. 606) 293. Hence, by virtue of section 285 of the 1999 Constitution,
election petitions as distinguish from civil action may be instituted against the President and
Governor. In the case of Paul Unongo v Aper Aku (1985) 6 NCLR 262. The Court of Appeal
held that the immunity granted to certain functionaries of government from civil and criminal
proceedings under section 267 of the 1979 Constitution does not extend to bar election
petition proceedings from being brought against them.
e. They can sue other persons: These public officers who have immunity under the constitution
may nevertheless sue other persons. See the case of Bisi Onabanjo v Concord Press of
Nigeria Ltd (1981) 2 NCLR 399. In that case, the plaintiff, the Governor of Ogun state
instituted a libel action against the Concord Press Ltd. The defendant raised objection that
since the Governor cannot be sued in his private capacity while in office, it is inequitable and
unconstitutional for the Governor, to sue other persons. It was held that since it was not
expressly provided in section 267 of the 1979 Constitution that a Governor cannot sue in his
private of personal capacity, it is be wrong to fill the gaps in the Constitution. Hence, since a
Governor is not expressly incapacitated by any provisions of the Constitution, the Governor
can sue in his private and personal capacity. See further the case of Global Excellence
Communication Ltd v Donald Duke (2007) 16 NWLR (Pt. 1059) 22.

LIABILITY OF PUBLIC OFFICER TO LEGAL PROCEEDINGS

Apart from the aforementioned constitutional provisions ousting legal action or liability against
the President, Vice President, Governor and Deputy Governor, other public servants may
claim immunity against legal action in appropriate circumstances.
A public officer is any person who is directly employed in government, public service, civil
service or any public agency. Under the 1999 Constitution (as amended), a public officer is
as defined in the Code of Conduct for Public Officers which is published in the Fifth Schedule
to the Constitution and include: the President, Vice President, President and Deputy
President of Senate, Speaker and his Deputy, members of legislative houses in Nigeria and
staff in the legislative houses, Governor and Deputy Governor, Chief Justice of Nigeria and
all Justices in Nigeria and supporting staff, Attorney Generals in the Country, Ministers and
Commissioners, members of Armed forces and police, head of service in Nigeria and their
staff, all staff of universities, colleges and institutions owned and finance by federal or state
government, Chairman and other members and staff of local government as well as staff of
statutory corporations in Nigeria etc.
Note that the doctrine of state or sovereign immunity did not extend to its servants or agents
personally. Hence, a servant or agent who commits a wrong on behalf of the King or State is
personally liable for its action. Thus, public officials, no matter their position may be
personally liable for any damage caused by their actions or omissions, for which they cannot
produce legal authority, or for which they have no statutory protection. As a result, an
aggrieved party could sue the particular public officer who was responsible for the injury.

As a general rule during the operation of the Petition of Rights Act and after, public officers
are liable in civil and criminal proceedings, unless they are protected by a Public Officers
Protection Act 1916 (now Cap P41 Laws of the Federation of Nigeria 2004). However, the
Public Officers Protection Act or Law offers some measure of protection to public officers by
limiting the time, within which action could be brought against a public officer to three months
from the time the cause of action arose, and in case of continuing damage or injury, to three
months also, after it ceases. Failure to sue within the three months makes the suit statute
barred and the public officer is thereafter immune to legal action for all time and is entirely
exempted from any liability. In the case of Obiefuna v Okoye (1961) All NLR 357. The
defendant, a policeman, in the course of his duty drove a Black Maria Vehicle in which there
were prisoners collided with a motor cycle damaging it and injuring the plaintiff who was a
passenger on the motor cycle. Action for damages in negligence was brought against the
police officer after the statutory three months period. He sought protection under the Public
Officers Protection Act. It was held that the action was statute barred for being brought late
outside the statutory three months’ time limit. Also in the case of Egbe v Adefarasin (1987) 1
NWLR (Pt. 5) 549. The Supreme Court held in favour of respondent judge that at common
law, persons exercising judicial functions are immune from civil liability whatsoever for
anything done in their judicial capacity. See section 188 of the Evidence Act 2011. See also
the case of Kwara State & Ors v Oladele Dada (2011) 7 SCM 119 at 140.
The Public Officers Protection Act is essentially a statute of limitation of actions. The time an
action commences, is the day the plaintiffs delivers the writ of summons to the Court
Registrar and pays for it and not necessarily the day the court registry issues the writ out for
service on the defendant, provided it is not an action in which the consent of the court is
necessary before the writ is issued. Hence, for the purpose of determination of when an
action becomes statute bar, the writ of summons and the statement of claim alleging when
the wrong was committed, which gave the plaintiff a cause of action will be looked into and
compare with the date the writ of summons was filed. If the time on the writ is beyond the
period allowed by the limitation law, then the action is statute barred. Thus, in the case of
Ntiero v NPA (2008) 10 NWLR (Pt. 1094) 129, it was held that the period commences to run
a day after the event that gave rise to the cause of action arose.
Where, however, the injury or damage is of a continuous nature, the time starts to run from
the end of the legal injury or damage. In other words, where the action causing the injury or
damage is continuous, the time runs, not from the end of the painful effect of the damage or
injury, but from the causing of the tortious act or omission which caused the injury. See the
case of Obiefuna v Okoye (supra) and compare it with the case of Obanor v Ogbe (1958)
WNLR 1, where the defendant on the 16 th August, 1953, supplied to Benin Magistrate
information on the basis of which the plaintiff was prosecuted but discharged and acquitted
on the 10th January, 1956. On the 6th April, 1956, he sued the defendant for malicious
prosecution. The plaintiff contended that, since the case against was not disposed of until
January, 1956, the damage or injury done to him was continuous till that date. The court
taking the view of the words ‘continuance of damage or injury’ in section 2 (a) of the Act, held
that the action was statute barred, because the injury complained of was inflicted in 1953
when the information was supplied, and not in 1956 when the plaintiff was discharged and
acquitted.

Note that a plaintiff who intends to institute legal action against a public officer in tort must
give the servant notice of his intention as well as an opportunity to tender amends. But an
action is not to be struck out merely because the prescribed notice of intention to sue has not
been given, or because the defendant had not been given opportunity for amends. However,
where the notice or the opportunity for amends has not been given, the court may award to
such a defendant all the costs he has properly incurred in defending the suit. See section 2
(d) of the Public Officer Protection Act.

Note further that the Public Officer Protection Act did not immune public officer against legal
action. The immunity offers by Act arises only after the period of three months. The Act
protects not only those usually classified in the civil service as officers, but all grades or ranks
of the employees of various governments and statutory bodies from messengers and
cleaners to permanent secretaries and ministers. In the case of Ekemode v Alausa (1961) 1
All NLR 135. It was held that the words ‘any person’ in section 2 of the Act are sufficiently
wide to cover any person whose employment requires him to act pursuant to or in execution
or intended execution of any ordinance or any public duty or authority whatever his status or
grade.
 The Public Officer Protection Act applies to natural person as well as artificial persons or
public bodies, whether corporate or unincorporated. See the case of Ibrahim v Judicial
Service Commission (1998) 14 NWLR (Pt. 584) 1. The Supreme Court interpreting the word
‘person’ used in the Public Officers Protection Law of Northern Nigeria 1963 as applicable to
Kaduna State, held that the Public Officers Protection Law protects both natural and artificial
persons.

Matters’ Outside the Scope of the Act (i. e Exceptions to the Rules)
Matters outside the scope of the Act are not controlled by the provision of the Act, so the
protection of the Act is not available to a defendant sued in respect of them. These matters
include the following:
a. Acts committed outside the scope of duty or authority of the Defendant: The protection of the
Act cannot be claimed in respect of any wrong committed outside the scope of the authority
or duty of the defendant. For instance, where a defendant authorised to execute a law goes
outside the scope of his employment and commits a wrong which is expressly or impliedly not
in any way associated with the method of executing the law, he cannot enjoy the protection of
the Act. In the case of Ekemode v Alausa (supra). The defendant who was authorised to
clear the foreshore, the water-way and the landing route of a stream was held liable to the
plaintiff for damaging his canoe in the cause of the authorised duty. It was further held that he
is not entitled to the protection of the Public Officer Protection Act.
b. Acts which though apparently within the scope of authority of the defendant, are actuated by
spite, malice, bad faith or improper motive: Usually, the courts do not consider whether or not
a defendant is entitled to the protection of the Act, unless he specifically claims to be
protected. Hence, where the defendant raises the defence, the burden of proving that at the
time of the action or omission complained of, he was acting in execution or intended
execution of a law, public duty or public authority is on him. Once he has done that, the
burden of proof shifts to the plaintiff, who can discharge it only by proving on sufficient and
cogent evidence that the officer had in deed acted in bad faith or improper motive. To enjoy
the protection, it is necessary that the defendant should have acted in good faith or in
genuine desire of executing a law, duty or authority. In the case of Nwankwere v Adewumi
 (1962) WNLR 298 at 301. An assistant superintendent of police who was the vehicle
inspection officer was sued for wrongfully refusing to issue the plaintiff with a certificate of
road worthiness, unless a bribe was given to him. He claimed the protection of the Act, but
the High Court as well as the Supreme Court held that he was not entitled to the protection
because the Act does not protect a person who, for his own benefit and in abuse of his,
knowingly commits a crime or does an act which is expressly or impliedly authorised by law.
c. Criminal Proceedings: Public Officers Protection Act does not apply to criminal proceedings.
Therefore, where a public officer is faced with criminal charges, he will not be able to invoke
its provisions for the protection in limitation of his liability. See the case of Akande v Nigeria
Army (2001) 8 NWLR (Pt. 714) 1 and Emuze v Uniben (2003)10 NWLR (Pt. 828)378.
d. Constitutional Matters: The Public Officer Protection Act does not apply to constitutional matters,
such as matters involving fundamental rights or declaratory actions. The provision of the Act
does not apply to matter under contracts, recovery of land and claims for work done. Thus, a
government may sue or be sued on a contract. Government is generally liable for breach of
contract. The general rule is that a government is liable according to the terms of contract, which
are usually written. Contract with government are normally in standard forms, that is, they are
prepared in a standardised form, and contain cancellation clauses, whereby governments may
cancel the contract for any reason provided in the contract document.

How to avoid Statute Bar?

Whether or not negotiation is going on, the way to avoid an action from being statute barred is to
timeously file the case in court, while negotiation goes on for a peaceful resolution. However,
where filing of an action will discourage a defendant from negotiation for amicable settlement of
the case, the service of the court process should be withheld to enable the defendant to feel free
to take part in the negotiations. See the case of Abia State University v Anyaibe (1996) 7 NWLR
(Pt. 439).

TOPIC: PUBLIC CORPORATION

Nature and Purpose, Classification of Public Corporations, Control of Public Corporation and
Challenges of Public Corporation.
Introduction
Public corporations are essential to any state. This is largely because of their unique roles in the lives
of the citizens. Public corporations exist in several forms with responsibilities attached to them. There
is hardly any democratic state that does not have well institutionalized public corporation, charged
with certain tasks to be performed in the interest of the people. Generally, public corporations are
government-owned outfits which perform exclusive functions for the general public and citizens of the
state. They are most times called ‘Government Controlled Enterprise’, or ‘State Owned Enterprise’.
They were specifically created by the state governments “to address market deficits and capital
short-falls, promote economic development, reduce mass unemployment...ensure national control
over...the economy...”.

Definition of Public Corporation

A public corporation is an organization established by an Act of parliament to provide a specific essential
service for the public. It is “a body formally established and regulated under the general law, their shares (if
any) being wholly or mainly owned by public authorities”. The law establishing the corporations may charge it
with the provision of water electricity, transportation or waste disposal. Unlike the civil service whose services
are normally free, public corporations are required to charge for the services they provide to the public so as
to cover their running expenses. The fees charged are usually below the market price of the service. For
instance, the tariff of the Power Holding Company of Nigeria (PHCN) is relatively for Visa-vis the cost of
running a power generating plant. From the definitions of public corporations, certain features of public
corporations can be inferred.

Features of Public Corporations

Public corporations have the following characteristics:

 Public corporations are wholly owned by the government (Federal, State or Local).
 They are created by law, decree or edict.
 Public corporations are separate legal. entities. They can sue and be sued, hold property and enter into
contracts.
 They are usually independently financed and they enjoy a high degree of financial autonomy. Their major
sources of finance are their own internally generated revenue and government subvention.
 Public corporations are not subject to direct legislative financial control.
 Public corporations have a dual character in that they have both public and private characters. In other
words, public corporations combine the characteristics of government and business organizations.
 Employees of public corporations are not civil servants but are employed directly by and subject to
conditions of service of the corporations. The employees of public corporations are usually referred to
as public servants.
 The board is responsible for the day-to-day management of the corporation.

Functions of Public Corporations

 The functions of public corporations include the following:
 They provide essential services to the people.
 In times of national disaster, emergency and economic depression, they cater for the displaced people on
an ad-hoc basis. The National Emergency Management Agency (NEMA), for example, provided relief
materials for the people affected by the Ikeja bomb explosion of January 27, 2001.
 Since the primary objective of a public corporation is not to make profit, it provides goods and services at
the cheapest possible rates.
 The public corporation helps to protect the citizens from exploitation by private companies whose primary
objective is to make profit.
 The establishment of public corporations fosters equitable distribution of resources and income between
individuals and between rural and urban areas.
 Public corporations help to raise revenue for the government although income generation is not their
primary responsibility.
 They provide employment for the people.

Reasons for Setting up Public Corporations

 Provision of essential services: Public corporations are set up mainly to provide essential services for the
people.
 To prevent exploitation: To prevent private individuals from getting involved in these services which may
result to exploitation of the people by these private individuals.
 Huge capital involvement: Public corporations are to provide such services which cannot be provided by
individuals owing to huge capital outlay, for example, railway and water.
 Provision of employment: One of the essential reasons for setting up public corporation is to create
employment opportunities for the people.
 Raising standard of living: Increase in productivity and constant supply of these essential services can
improve the standard of living.
 For economic growth: Efficient and adequate provision of these facilities can stimulate or generate
investments for both local and foreign businessmen.
 Strategic projects: To undertake some strategic projects for security reasons e.g. minting and arms
production.
 For efficient management and proper control: Government sees itself as having the wherewithal and the
potentials to manage these services better. This will make for efficiency and regular supply of these essential
services.
 Revenue generation: Government may also establish public corporation for the purpose of generating
revenue.
 Propaganda: Public corporations may be established for the purpose of propaganda. Examples are:
Radio Corporation and Television Authority
 Quick actions: It enables government to carry out some duties that require quick actions which ministries
cannot quickly or effectively carry out because of bureaucracy.
 Foreign control: Another reason is to avoid foreign control of the economy.

The Organisation Structure of Public Corporations

 Political head: The minister is the over-all political head of the corporation and gives policy guidelines to
the Board of the corporation.
 Chairman: At the apex of the administration is the chairman who is a government appointee.
 Board of Directors / Governing board: The Board is made up of appointed directors who initiate and
formulate policies for the corporation.
 Managing Director/General manager: They assist the board in the day to-day administration of the
corporation and at the same time see to the execution of corporate policies.
 .Key senior officials: The management is made up of key senior officials. They assist the Managing
Director/General Manager in overall administration of the corporation. As heads of different units, they also
supervise other categories of staff.

Control of Public Corporations

 Legislative control or Acts of Parliament: Public corporations are set up by an Act of parliament. Their
powers are stipulated in the Acts.
 Deficient and unproductive: Any public corporation that is deficient and unproductive could be abolished
by the legislature.
 Auditing: The accounts of public corporations are always audited by a body set up by the legislature.
 Summoning of officials: The legislature can ask any official to appear before it, if there are allegations of
wrong doing.

Ministerial Control:
 Dissolution of Board of Directors: A minister whose ministry controls a public corporation can appoint and
dissolve board of directors of such corporation.
 Appointment and dismissal: The minister also has the power to appoint and even dismiss some senior
categories of staff in any corporation under his control.
 Approval of loans and expenditure: The minister approves any loan to be taken and some major
expenditure.
 Auditing: The minister also appoints auditors to audit the accounts of public corporations under his
control.
 Issuing of directives: He can equally issue directives on matters of any policy in a public corporation.

Judicial control or court order:

The courts can declare any act made by some corporations illegal or unconstitutional. This is done when they
are breaching the Act upon which they were set up.

 Denial of services: The judiciary can also stop any public corporation from denying its services to any
customer e.g. PHCN.
 Finance: Most public enterprises depend to a large extent on government for allocations to meet their
running costs. Government may withhold such allocation.
 Budget: This is usually debated upon. Senior official or the minister responsible for the enterprise can be
questioned before the legislative committee.
 Annual Report: Annual reports of public corporations are presented to the parliament for scrutiny.

The Challenges Facing Public Corporation in Nigeria

This can be broadly distinguished into two: External and Internal.
1. External Challenges of Public Corporations in Nigeria

a. Political Influence
20th century politics in Nigeria has generally abused the relevance of bureaucracy; the public
corporations are not exempted. This influence reflects in almost every activity of public
corporation ranging from employment, to promotion, training, transfer etc. The political office
holders here are those who play supervisory role over the public corporations such as
ministers, commissioners etc who have their principals sitting in elective seats in the top
cadre of the political hierarchy. Today, what we see is undue interference in the personnel
activities of these corporations by these political office holders. They decide the terms of
promotion, employment etc. They delve into the basic personnel activities of the corporation
and mar the merit clause which guides the modes of operation while receiving back-up and
coverage from their political patrons.
Politicians use the public corporations as patronage to those who supported their political
ambitions. Politicians, instead of professionals were appointed into the management boards
of public corporations who, would subsequently turn down on credibility and effective service
delivery in pursuit of profits for themselves. For instance, in NNPC, recent research reveals
that for the past 3 decades (30 years) refineries have been redundant without experiencing
any activity. Meanwhile, every-day, up to 450,000 barrels of crude oil are released by NNPC
into these refineries. Since they are not active, these barrels of crude end up in the pockets
of the Board members who sell them out to private crude buyers abroad and pocket the
gains, leaving the refineries redundant and unproductive. Of course, some ‘cuts’ from the
transaction goes to the political patriarchs who sit somewhere above. So, the influence of
political office holders has not yielded good fruits to the operations of public corporations. It
has rather played down on the effectiveness of public corporations over the years and.

b. Economic Influence
Economic influence is occasioned by the following factors:
i. Market Changes One other external factor that squeezes the survival of Nigerian public
corporations is unstable market. This is purely an economic factor but it has had a huge
impact on Nigerian public corporations. These market changes are seen in areas of market
 twist, inflation, deflation etc. Unlike the private enterprises, public corporations are not at
liberty to make hasty price adjustment to meet up with the sophisticated system of the global
and domestic market. In fact, most of these market dynamics and indices are initiated as a
deliberate attempt by capitalists to hijack the open market and make more gains while stifling
the survival of weak and up-coming entrepreneurs. So, when the public corporations cannot
cope with the market sophistications, they run bankrupt and fall back to the ‘poor’
government for funding to pay its staff and take care of other overhead costs. Global market
failure hugely affects the productive capacity of the public corporations and makes it almost
impossible for public corporations to adjust to the swift changes of market fluctuations.
iii. Foreign exchange hoopla: From global perspective, foreign exchange is highly unpredictable.
The ever-increasing foreign exchange affects public corporation because the machines and
most of the raw materials needed for their operation are produced abroad and Dollar is the
recognised currency in the global market. In acquiring factory materials and equipment, these
local corporations engage in extra cost which is like a strain on its meagre profit and income
base. On the other hand, these corporations cannot engage in quick price increment to
succour the foreign exchange stress, because it is not profit-oriented. So, the critical
condition which Naira is experiencing in the global circle, is also kicking against the survival
of public corporations down here in the domestic arena.

2. Internal Challenges of Public Corporations

a. Lack of accountability
Post privatization era and its attendant happenings are hugely posing a major challenge to
the operations of public corporations in Nigeria. The issue about privatization doesn’t really
end at shoving-off the public corporations into the private hands but ensuring accountability
in management. To what extent does the government know what is exactly happening in the
public corporations? The obvious fact is that the government has poor knowledge of the
events which take place in the corporations simply because the private managers have
chosen to conceal the information which are needed to ensure accountability in the system.
The rapport which should exist between the government and the private managers, in whose
hands these corporations are, has dwindled owing to the inability of private managers to
constantly update the government supervisors with the needed information. In addition to that
is the laxity exhibited by government functionaries in the administration and supervisions of
already privatized public corporations. So, the paradigm of disconnect here portends that the
government and the private managers of public corporations do not always have smooth
relationships. This lack of synergy results to inability of the government to effectively monitor,
control and regulate the activities of the public corporations.

b. Over staffing
Public corporations are overtly staffed. The reason is largely unconnected to the
unemployment challenge facing the entire country. The management of Nigerian public
corporation employ staff beyond the financial capacity of the organization. And when the
corporation expends a greater percentage of the annual budget in staff maintenance and
other recurrent expenditure then the staff become a threat into the survival of the
organization.
In the worst case scenario, we see situations whereby poor and untrained personnel fill up
the entire organization. As such, the personnel activities become more like a burden to the
organization. Rather than enhancing the productive capacity of the organization, we see ill-
motivated personnel structure in the organization.

c. Poor facilities and infrastructure

It is not possible to engage in effective service delivery without good facilities. But condition
of public corporations recent days are critical because there is dearth of materials needed to
make a comfortable work environment. In some cases, the public offices do not have
sufficient desks, computer equipments, machines etc to work. And as a consequence, works
get redundant and the staff get frustrated. For instance, in a recent analysis of NNPC, the
report revealed that the staff are frustrated because of bad facilities such the refinery has not
done any meaningful activity for up to 3 decades.

d. Red tapism
Public corporations are victims of red tapism and officiousness which the system bequeaths.
This is occasioned by excess emphasis on bureaucratic modes while doing office works. As
a consequence, change is threatened and the staff tend to spend so much time to acquire a
single information and to follow a single command line in order to get things done. This
causes huge delay to the organization and personal initiatives are zeroed-off from office
duties. There is no denying the fact that office rules must be followed. But it becomes a bane
to the system if the office rules are excessively applied such that they hinder success and
development in the system. This has caused a collapsed of certain organizations because it
does not guarantee quick actions on trending issues within the organization. Red tapism
does not guarantee fast policy implementation and this delay is a challenge to the progress
of any organization.

e. Lack of innovation
As we pointed out earlier, the post-privatization era floods the market with abundant varieties
of products and services. It gives the consumers the right of choice of product. But, this
syndrome is at the benefit of the private entrepreneurs than it is for the public corporation.
Public corporations lack innovative ideas of how to upgrade their product’s brand. They are
stuck in the past and have very slow speed of upgrade. This is the major reason why Nigeria
Telecommunication collapsed. While, wireless communication had long being invented in
global communication industry, NITEL was busy packing piles of cables without any iota of
development. But, when MTN and co came in the early 20 th century with wireless service, the
interest of the consumers was switched over to private communication networks who are
today hosting more than 92% of communication customers. So, lack of innovation which is
the fault of the chief executives of public corporations has so much marred the growth of
Nigerian public corporation.