Principles guiding grant of an Order of mandamus in Nigeria

This article shall be discussing the Principles guiding the grant of an order of mandamus in Nigeria. We will focus on the Meaning, Nature, Condition precedents and the overall Conditions that must be fulfilled before the Court can grant an Order of Mandamus in Nigeria.

To achieve this, we shall look at judicial and statutory authorities.

MEANING OF ORDER OF MANDAMUS

An a Prerogative Order used in compelling one to do an act he is lawfully employed or empowered to do. It is also a an Order of Judicial Review directing a person or body to perform a public or statutory duty.

In Comptroller General, Nigeria Customs Services & Anor vs. Minaj Holdings Ltd (2017) LPELR-43055 (CA), the Court of Appeal per Garba, JCA at pages 87-90 gave an extensive and simple meaning of an Order of Mandamus. The Court held thus:

“In simple terms, an order of mandamus is one issued by a Court of law to compel the performance of a public duty in which a party has sufficient legal interest, after refusal, failure or neglect to do so, on demand.” SEE ALSO: In DAIRO V. STANBIC IBTC BANK & ANOR (2019) LPELR-49297(CA)

Thus, where a public officer or institution is vested with the authority, power or mandate by a statute or the subsidiary legislation, to perform a public duty or function of a public nature and refuses to perform or carry out that duty or function without cause after demand by a person who has sufficient legal interest in the performance of such a duty or function, an order may issue from a Court of law to compel the performance of the duty or function in question.

NOTE: The persons who has sufficient legal interest in the performance of the public duty will have to apply to Court and where certain conditions are met, the Court shall grant same.

WHAT IS THE NATURE OF ORDER OF MANDAMUS?

In general terms, an Order of Mandamus is a Prerogative Order/ Judicial Review which directs the behavior of another arm of government, such as an agency, official, or other courts. Note also that an Order of Mandamus is discretional though must be exercise judicially and judiciously where the defined conditions are met. It is deceptional in the sense that the Court may choose to grant or refuse same.

WHAT ARE THE CONDITION PRECEDENT TO THE GRANT OF ORDER OF MANDAMUS

As a requirement of Law, the Condition precedent to grant of an Order of Judicial Review is that the Applicant must approached the Court vide a Motion Ex-parte seeking to leave of Court to bring an Application for an Order of Mandamus against a person or body requiring such person or body to perform their public duty. The purpose of the E-xparte Application is to held the Court investigate if the Applicant has sufficient legal interest in the person of the public duty which he seeks to be performed.

In CBN v. SYSTEM APPLICATION PRODUCTS (NIG) LTD (2004) LPELR-5432(CA) the Court of Appeal examined Principles guiding the grant of an order of mandamus and the condition(s) that must exist before same can be granted. The Court held that In so far as the making of all order for mandamus is concerned part from case law, it is the specific requirement of Order 47 Rule (5) of the Federal High Court (Civil Procedure) Rules, 2000 (as well as High Court Civil Procedure Rules of most States in Nigeria) that – in an Order of Mandamus as in other applications for judicial review, the Court shall not grant leave on the Ex-parte Application of the applicant unless it considers that the applicant has a sufficient interest in the matter to which the application relates.

WHAT ARE THE CONDITIONS THAT MUST EXIST BEFORE THE COURT CAN GRANT AN ORDER OF MANDAMUS

The position of the Law is that for an Order of Mandamus to be granted, certain conditions must have been met. In phase of this article, we shall discuss the conditions that must exist before the Court can exercise her discretional power in favour of an applicant seeking for a prerogative writ of Mandamus.

In CBN v. SYSTEM APPLICATION PRODUCTS (NIG) LTD (supra), the Court held that under case law, the following conditions must exist and they are:

Mandamus lies to secure the performance of a public duty, in the performance of which the applicant has a sufficient legal interest;
The Applicant must show that he has demanded the performance of the duty and that performance has been refused by the authority obliged to discharge it.
The duty to be performed must be of a public nature.
It is pre-eminently a discretionary remedy and the Court will decline to award it if another legal remedy is equally beneficial, convenient and effective.

NOTE THE FOLLOWINGS AS IT CONCERNS THE GRANT OF ORDER OF MANDAMUS IN NIGERIA

NOTE: The trite position of law is that Mandamus will not lie, in general to secure the due performance of the obligations owed by a company towards its members or to resolve any other private dispute. See – (i) R v. Bank of England (1819) 2 B & Ald. 620; (English Reports Vol. 106 p. 492); (ii) Davies v. Gas Light & Coke Co. (1909) 1 Ch. 708 (iii) De Smith’s Judicial Review of Administrative Action 4th Ed. – Stevens p. 540; (iv) Wemabod Estates Ltd. v. Joyland Ltd. (2001) 18 NWLR (Pt. 744) 22.” Per ALBERT GBADEBO ODUYEMI, JCA (Pp 55 – 57 Paras F – B)

NOTE: Order of Mandamus is pre-eminently a discretionary remedy and the Court will decline to award it if another legal remedy is equally beneficial, convenient and effective.

NOTE: The order of mandamus is not granted as a matter of course. It is only after there has been a demand to perform a public duty and a refusal to perform the duty that the right to seek an order of mandamus arises. See BISIMILLAHI vs. YAGBA EAST LOCAL GOVERNMENT (2002) 8 WRN 167 at 199 – 200. ” Per UGOCHUKWU ANTHONY OGAKWU, JCA (Pp 26 – 27 Paras B – B)

CONCLUSION

This article has discussed all you need to know concerning the Meaning, Nature, Condition precedents and the overall Conditions that must be fulfilled before an Order of Mandamus in Nigeria will be secured.

However, in case you have any other question or contribution to make, kindly use the comment section below.

Thanks for reading.