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Nwaoboshi vs. Mil. Adm., Delta State - Ex parte Onwuachi

THE STATE

V

PROF.  L. O. NWAOBOSHI

C. O. NWANZE, ODOGWU OF IBUSA

W. O. IKOLODO, NWOKOLO OF IBUSA

J. I. OKONICHA, IYASE OF IBUSA

CHIEF AUGUSTINE IZAGBO

V

THE MILITARY ADMINISTRATOR OF DELTA STATE

ATTORNEY-GENERAL AND COMMISSIONER FOR JUSTICE, DELTA STATE

EX PARTE OBI (PROF.) CHIKE ONWUACHI

SUPREME COURT OF NIGERIA

SALIHU MODIBBO ALFA BELGORE, JSC ( Presided )

SYLVESTER UMARU ONU, JSC

UMARU ATU KALGO, JSC

SAMSON ODEMWINGIE UWAIFO, JSC ( Read the Lead Judgment )

AKINTOLA OLUFEMI EJIWUNMI, JSC

SC. 73/1999

FRIDAY, 16TH MAY, 2003

ACTION - Action by writ of certiorari - Position of the state therein

LEGISLATION - Legislative or executive act - Writ of certiorari - Whether has controlling jurisdiction over legislative or executive act

PREROGATIVE WRITS - Certiorari - Action thereby - Position of the state therein

PREROGATIVE WRITS - Certiorari - Acts against which same will lie PREROGATIVE WRITS - Certiorari - Functions of

PREROGATIVE WRITS - Certiorari - Purpose of

PREROGATIVE WRITS - Certiorari - Whether has controlling jurisdiction over legislative or executive act

PREROGATIVE WRITS - Order of certiorari - Whether same was appropriate in the instant case

STATUTE - Traditional Rulers and Chiefs Edict, 1979 of Bendel State Nature of Declaration made thereunder - Whether can be judicial acts

Issue:

Were the learned Justices of the Court of Appeal right in holding that a writ of certiorari may issue against the Delta State Executive Council in its legislative or administrative function in this case?

Facts:

The Delta State Government approved a chieftaincy declaration stating the customary law regulating succession to the title of Obuzor of Ibusa as per Legal Notices Nos. 6, 7, 8 and 9 of 1995 published in the Delta State of Nigeria Extra-Ordinary Gazette No. 28 Vol. 5 of 21st June, 1995. Persons who called themselves kingmakers wrote to the government requesting that the selection and appointment of one Professor Louis Chelumo Nwaoboshi (1st appellant) be approved and the staff of office presented to him. A letter dated 20th June, 1995 from the government to the Chairman, Kingmakers Committee appeared to have conveyed the approval given by the Military Administrator of the State to the selection of Professor Nwaoboshi as the Obuzor of Ibusa.

The declaration made under section 8 of the Traditional Rulers and Chiefs Edict, 1979 of the defunct Bendel State, applicable in Delta State, stated that there are three Ruling Houses (Otus) in Ibusa clan, which, in order of seniority, are (i) Otu Odogwu Ruling House, (ii) Otu Uwolo Ruling House and (iii) Otu Iyase Ruling House. It also stated the three groupings of villages attached to each Ruling House and that succession shall rotate among the three Ruling Houses. The 1st appellant belongs to Otu Odogwu Ruling House.

In July, 1995, the applicant/respondent commenced certiorari proceedings against the appellants the purpose of which was among other reliefs to bring up the said declaration stating the customary law regulating succession to the title of Obuzor of Ibusa, Delta State as contained in Delta State Legal Notice No. 6 of 1995 published in the aforementioned Gazette to the court to be quashed.

On 20th December, 1995, the High Court, Asaba, in its ruling made an order quashing the said declaration stating the customary law regulating succession to the title of Obuzor of Ibusa, holding that the Executive Council of Delta State Government acted without jurisdiction in making the declaration because it failed to comply with the Traditional Rulers and Chiefs Edict, 1979.

Dissatisfied with this decision of the High Court, the 1st - 4th and 7th respondents to the application for certiorari appealed to the Court of Appeal challenging the propriety of the certiorari order to quash what they regarded as a legislative or subsidiary legislative act. The appeal was dismissed. Still not satisfied, the appellants appealed to the Supreme Court posing the question whether the lower court could question or quash such legislative acts of the Executive Council by certiorari proceedings. Section 8  of the Traditional Rulers and Chiefs Edict, 1979 of the defunct Bendel State, applicable in Delta State was considered in this judgment.