Whether A Right of Appeal Takes Away the Right to Utilize the Prerogative Writ of Certiorari

CASE TITLE: NSUDE & ORS v. NICHODEMUS & ORS (2024) LPELR-62986(SC)
JUDGMENT DATE: 3RD MAY, 2024
PRACTICE AREA: ADMINISTRATIVE LAW
LEAD JUDGMENT: ADAMU JAURO, J.S.C.

SUMMARY OF JUDGMENT:

INTRODUCTION:

This appeal borders on administrative law.

FACTS:

The appeal herein is against the judgment of the Court of Appeal, Enugu Division, which allowed the respondents’ appeal and set aside the decision of the High Court of Enugu State, which had granted an order of certiorari sought by the appellants’ father.

The appellants’ father, one Ugwu Nsude, was the defendant before the Customary Court of Enugu East Division, Nike Uno, where one Daniel Anike sued him in suit no. CCN/47L/2002 for the following reliefs:

“1) Order to restrain—resurvey (sic) the said land, leaving my portion for me.

2) An interim injunction against the Defendant, agents, from trespassing into the portion of the land which he carved out from my own land.”

In a unanimous judgment delivered on June 23, 2003, the Court decided the matter in favour of the said Ugwu Nsude. Meanwhile, another action had earlier been instituted against the same Ugwu Nsude in suit no. CCN/15L/2001 by one Mr. Nichodemus Anike (now late), who has now been substituted with the respondents.

On 21st July, 2003, about a month after the same panel of the same Court delivered judgment in suit no. CCN/47L/2002, it delivered another judgment in another case, suit no. CCN/15L/2001, this time by a split decision of two to one, that is, a majority judgment and a minority judgment delivered by Mr. M.O. Nnamani. In essence, judgment in suit no. CCN/15L/2001 was rendered in favour of Nichodemus Anike against Ugwu Nsude. The said Ugwu Nsude, now deceased, was not satisfied with the decision in suit no. CCN/15L/2001, and he approached the High Court of Enugu State by motion ex parte for leave to apply for the prerogative order of certiorari, and upon leave being granted, he filed a motion on notice, seeking:

“An order of certiorari quashing the proceedings and judgment of the Customary Court Nike Uno, Enugu East L.G.A., in Suit No. CCN/15L/2002 (sic) – Nichodemus Anike VS Ugwu Nsude, in particular the judgment dated 21/7/2003 because of an error of law on the face of the record and also for lack of jurisdiction of the Customary Court to enter same.”

The respondent thereto opposed the application on grounds of law alone. Upon taking arguments thereon, the learned Chief Judge of the High Court held that there was no evidence to make certain that the same land was the subject matter of the two suits. He, however, proceeded to grant the order of certiorari on the ground that the Customary Court misplaced the burden of proof in suit no. CCN/15L/2001 by placing the burden on the defendant (Ugwu Nsude) to prove his case instead of the other way around. It was held that the deviation from the rule on burden of proof rendered the trial before the Customary Court unfair.

Displeased with the judgment of the High Court, Nichodemus Anike, now substituted with the present respondents, appealed to the Court of Appeal. Ugwu Nsude, the respondent before the Court of Appeal died in the course of the proceedings before that Court and was replaced with the present 10 appellants. In its judgment, the Court of Appeal agreed with the High Court that in the absence of any survey plan transmitted to the High Court in the record from the Customary Court, there was no way to tell whether the land subject matter in the two suits before the Customary Court was the same. The Court also held that the parties in both suits were not the same, as Ugwu Nsude was sued by different paintiffs. It was further held that the ground upon which the High Court granted the order of certiorari is not within the contemplation of the Administrative Law of Anambra State, 1986 as applicable to Enugu State or the principles guiding the grant of the order, but a ground which can only be ventilated on appeal.

The appellants instituted the instant appeal in expression of their displeasure with the judgment of the Court of Appeal.

ISSUE(S0 FOR DETERMINATION:

The court adopted the lone issue formulated by the respondent in the determination of the appeal, thus:

“Whether the Court below was right in its decision setting aside the judgment delivered by Hon. Justice I.A. Umezulike, the then Chief Judge of Enugu State High Court, on 1/2/2016, in suit No. E/435m/2003.

DECISION/HELD:

In conclusion, the Court dismissed the appeal.

RATIOS:

• ADMINISTRATIVE LAW- PREROGATIVE WRITS: Meaning and classification of a prerogative writ
• ADMINISTRATIVE LAW- CERTIORARI: Meaning, purpose and scope of the writ of certiorari
• ADMINISTRATIVE LAW- CERTIORARI: Whether a right of appeal takes away the right to utilize the prerogative writ of certiorari
• EVIDENCE- ESTOPPEL PER REM JUDICATAM/RES JUDICATA: Principle of res judicata
• EVIDENCE- BURDEN OF PROOF/ONUS OF PROOF: On whom lies the burden of proof in civil cases and whether same shifts
• JUDGMENT AND ORDER- DISSENTING JUDGMENT: Whether a minority/dissenting judgment is the judgment of Court and can be a subject of appeal
• JUSTICE- NATURAL JUSTICE: What natural justice implies

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