WRIT OF HABEAS CORPUS – ITS RELEVANCE TO ADMINISTRATIVE LAW AND RELATIONSHIP WITH MANDAMUS

BY: ADEBAJO F. ADEKUNLE; UNIVERSITY OF IBADAN

NTRODUCTION: JUDICIAL REVIEW

It must be noted before all other things that the basic concern of administrative law are the powers conferred on administrative agencies by enabling statutes and their extent. And that is why P.A. Oluyede defined it as;

That branch of our law which vests powers in administrative agencies, imposes certain requirements in the exercise of the powers and provides remedies against unlawful administrative acts

Sir Ivor Jennings also rightly referred to it as the law that;

…determines the organisation, powers and duties of administrative authorities

In order to now ensure that the individuals at the receiving end of an administrative power do not carry it beyond the intention of the lawmakers, and as a measure of checks and balance; we have what is called judicial review.

This concept may be referred to as the act of a court to examine and determine the merits of an administrative and legislative action, and to ensure the conformity of such to the demands of the law of the land.

In the words of Ese Malemi however, it is;

The power of a court to examine the acts of the other branches of government, lower courts, public or administrative authorities and uphold them or invalidate them as may be necessary.

There are multifarious sorts of wrongs committed by man to man, there are different ways in which human rights are violated; and it is only in the interest of justice that the courts provide adequate compensation and redress to them. Oputa, J.S.C said;

The law is an equal dispenser of justice, and leaves none without a remedy for his right. It is thus a basic and elementary principle of common law that whenever there is a wrong, legal wrong or ‘injuria’ that is, there ought to be a remedy to redress that wrong.

Nnaemeka-Agu JSC also noted in the case of WILSON V. A.G. BENDEL STATE that;

“courts have a duty to protect vested rights … so they have always taken the view that any attempt by a competent authority to take away a citizen’s vested rights must be done in strict compliance with the law and any laid down procedure therefore.”

Also in maintaining the significant nature of judicial review and separation of powers, Madison asserted that:

… There can be no liberty where the legislative and executive powers are united in the same person or body of magistrates or if the power of judging be not separated from the legislative and executive powers.

In appreciation of this significance and in acknowledgement of the Latin maxim which says ubi jus ibi remedium (i.e.where there is a right, there is a remedy), the Constitution of the FRN in Section 46 has bestowed the High Court with the original jurisdiction of issuing writs and giving directions for the purpose enforcing human rights. It is note-worthy that no reference is made in the foregoing provision to specific remedies. In spite of this, the courts in practice, have used and continued to use the traditional remedies such as injunction, habeas corpus, declaration, mandamus, prohibition and certiorari in redressing human rights violations.

In ASEMOTA V YESUFU & ANOR it was held that the remedy provided for in section 42 of the 1979 Constitution “supplements or is in addition to the existing order for enforcing or securing constitutional redress of enshrined constitutional rights by the writs of habeas corpus, and/or order of certiorari, mandamus and/or prohibition”.

Consequently, the demarcation between the ordinary remedies of damages, injunction and declaration and the extraordinary remedies of certiorari, prohibition, mandamus and habeas corpus in this respect has been removed. The practical implication of this is that there can be a combination of both classes of remedies in the same action.

Also, Article 8 of the United Nations Universal Declaration of Human Rights, 1948 provides thus;

Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law

There are many remedies granted by the court to an aggrieved party in ensuring that administrative authorities and governmental agencies do not exceed their statutory limits, they include; the Declaration of rights or declaratory judgment, Order of Mandamus, Order of Certiorari, Order of Prohibition, Order of Injunction, Writ of Habeas Corpus, an Award of Damages and Offer of Apology.

PREROGATIVE WRITS

In order to facilitate or even make possible the aim of judicial review, then there ought to be necessary tools in place, available for any party seeking remedy to exploit. These tools are what are today known as prerogative writs.

A prerogative writ is an official order directing the behaviour of another arm of government, such as an agency, official or other court. Originally, it was available only to the crown under English law. The writs were often issued in the name of the Crown, who is the nominal plaintiff, on behalf of the applicant. But today, the reverse is the case.

Other terms used to refer to the same concept include prerogative remedies, extraordinary writs or extraordinary remedies.

Customarily, there are six (6) types of prerogative writs, including;

1. Certiorari 2. Prohibition 3. Quo warranto 4. Procedendo 5. Mandamus (replaced with injunction in some jurisdictions) and 6. Habeas Corpus.

Prerogative writs have today been incorporated into one of the functions and privileges of the judicature, specifically in the area of judicial review. Judges

In addendum, it is noteworthy that most of the writs have been replaced by a modified procedure of Orders; the exception being the Writ of Habeas Corpus.

THE WRIT OF HABEAS CORPUS

Habeas corpus can be traced to as far back as 1215 and the signing of the Magna Carta. It was designed to keep kings from using power in an arbitrary manner. Simply put, Habeas Corpus is a tool through which a person detained by the state can require that the government/detainer proves to a neutral judge that there is a legal and factual basis for his detention.

The founders fought a revolution against the kind of excessive and arbitrary executive action habeas prevents. In the Declaration of Independence, they objected to King George III’s abuse of his detention power. In the Federalist papers, Alexander Hamilton declared habeas corpus a “bulwark” of individual liberty, calling secret imprisonment the most “dangerous engine of arbitrary government.” That government power demanded a legal check was, to the framers, “self-evident.” So, at the Constitutional Convention in Philadelphia, no one debated whether to include habeas in the Constitution. The delegates instead discussed only what conditions, if any, could ever justify suspension of the writ.

The writ of habeas corpus literally means “to have body.” It is an extraordinary prerogative remedy which is issued upon case shown in cases where the ordinary legal remedies are inapplicable or inappropriate. It is used primarily to challenge the detention of any person either in official custody or in private hands. Its utility is to ensure that a person wrongfully detained is released forthwith.

The nature and utility of habeas corpus was pungently stated by Ademola, J. C. A. in AGBAJE V. COMMISSIONER OF POLICE, as follows:

The writ of habeas corpus is a prerogative process for securing the liberty of the subject by affording an effective means of immediate release from unlawful or unjustifiable detention whether in prison or in private custody. The purpose is to inquire into the cause for which a subject has been deprived of his liberty… if there be no legal justification for the detention, the party is ordered to be released.

Thus, where the personal liberty of an individual as guaranteed by Section 35 of the 1999 Constitution is interfered with through confinement, such a person may make an application to court for the writ of habeas corpus to issue for the purpose of securing the restoration of his liberty.

According to Black’s Law Dictionary;

The habeas corpus is a writ employed to bring a person before a court, most frequently to ensure that the person’s imprisonment or detention is not illegal. In addition to being used to test the legality of an arrest or commitment, the writ may be used to obtain judicial review of (1) the regularity of the extradition process, (2) the right to or amount of bail, or (3) the jurisdiction of a court that has imposed a criminal sentence. It was first firmly written into English law by the Habeas Corpus Act of 1679.

The various types of the habeas corpus are named in the same source as;

1. Habeas corpus ad deliberandum et recipiendum: a writ used to remove a person for trial from one county to the county where the person allegedly committed the offense.
2. Habeas corpus ad faciendum et recipiendum: a writ used in civil cases to remove the case, and also the body of the defendant, from an inferior court to a superior court. Also termed habeas corpus cum causa.
3. Habeas corpus ad prosequendum: a writ used in criminal cases to bring before a court a prisoner to be tried on charges other than those for which the prisoner is currently being confined.
4. Habeas corpus ad respondendum: a writ used in civil cases to remove a person from one court’s custody into that of another court, in which the person may then be sued.
5. Habeas corpus ad satisfaciendum: In England, a writ used to bring a prisoner against whom a judgment has been entered to some superior court so that the plaintiff can proceed to execute that judgment.
6. Habeas corpus ad subjiciendum: a writ directed to someone detaining another person and commanding that the detainee be brought to court.
7. Habeas corpus ad testificandum: a writ used in civil and criminal cases to bring a prisoner to court to testify.

Habeas corpus like other prerogative orders is governed by state laws. In the case of Lagos-State, the procedure for its application is governed by the Lagos High Court (Civil Procedure Rules). Other states of the federation would have their habeas corpus procedure regulated by the procedure applicable in the High Courts of Justice in England.

A habeas corpus application is made ex-parte supported by an affidavit deposing to the circumstance of his detention. The person to whom the writ is directed is expected to make a return thereto by affidavit stating the grounds of the applicants’ detention. These grounds will be scrutinized by the court before coming to a decision on the appropriate order to make (Ibidapo- Obe, 1993).

RELEVANCE TO ADMINISTRATIVE LAW

As has been noted earlier, Administrative law is that branch of our law which vests powers in administrative agencies, imposes certain requirements in the exercise of the powers and provides remedies against unlawful administrative acts [P.A. Oluyede, 2002].

According to the proficient juridical author, Ese Malemi, the broad issues with which Administrative law is concerned include; 1. The organisation, functions and powers of administrative authorities 2. Public administration and agencies 3. Delegation of powers   4. Administrative rule-making procedures 5. Control of executive or administrative powers, the role and powers of the judiciary to review administrative acts and the exercise of the discretion 6. Administrative adjudication and the right to fair-hearing 7. Judicial remedies, and factors which affect judicial review 8. Non-judicial remedies and 9. Suits against government, its servants and the liability or other wise of public officers and so forth.

Taking a look at this submission, we can extrapolate and reach the conclusion that the writ of habeas corpus is very much germane to the scope of administrative law especially in areas of control of administrative powers, right to fair-hearing and powers of the judiciary to review administrative acts.

Habeas Corpus writ has, no doubt, proved to be very relevant to the aims and contour of administrative law. This is so because it allows for the checking of administrative functions, prevention of abuse of power and the general facilitation of due process in accordance with the dictates of the law. It gives room for ordinary citizens to be able to challenge, whether by themselves or by proxy, their detention by any person or authority; while equally striving to prevent criminals taking advantage of the right to evade arrest on the ground of technicalities.

The writ is one of the few prerogative remedies of the court which applies more specifically to administrative bodies.

In the dictum of Musdapher JCA in the case of FAWEHINMI V. ABACHA, he said;

Where the freedom of an individual is curtailed or abridged, it must be shown that such act is brought within the confines of the law

Thus the writ of habeas corpus works to ensure that whenever a person’s right to freedom of movement as guaranteed by Section 41(1) of the 1999 CFRN is curtailed, it is curtailed with cognisance of and adherence to the law [See also Section 365 of the Criminal Code Act on the Deprivation of Liberty].

The writ of Habeas corpus has been successfully invoked in some cases e.g. AGBAJE V. COP and TAI SOLARIN V. IGP; and in others, it did not succeed e.g. MALLAM BALLA RABBE & ANOR. V. IGP.

In the case of Dr Tai Solarin (supra) for instance, the Chief of Staff Supreme Headquarters and Inspector-General of Police were both asked to give plausible reasons why the detainee, detained under Decree No. 2 of 1984 for being a danger to state security, should not be freed. Based on the facts, especially that the Chief of Staff did not personally append his signature on the detention certificate and that the document did not state the name of detainee and place of detention, the presiding judge concluded thus;

The detention has been unlawful as the respondent has failed to establish legal justification for depriving Mr Solarin of his liberty.

RELATIONSHIP WITH ORDER OF MANDAMUS

The order of mandamus is an order of court commanding the doing of a public duty which a person or body is bounden to perform. In the words of Ese Malemi;

An order of mandamus may be directed to a private company, a municipal or public corporation, any of its officers, an executive, administrative officer or judicial officer or, to an inferior court or tribunal, commanding the performance of the particular act stated in the order, which act must be his or their public, official or ministerial or mandatory duty imposed by law, or compelling the reinstatement of the applicant to his work, office, entitlements, privileges or rights, of which he has been wrongfully deprived.

The High Court has original jurisdiction in all matters requiring an order of mandamus to compel any person or body of persons to perform a public act owed to the complainant.

In the case of SSS V. AGBAKOBA, the plaintiff’s passport was impounded; he brought an action for enforcement of his fundamental rights and claimed inter alia an order of mandamus. The Supreme Court, affirming the Court of Appeal’s decision, held that the seizure of the passport was null and void and an order of mandamus was issued against the defendant appellants for its release. See also, SHITTA BAY V. FEDERAL PUBLIC SERVICE COMMISSION where an application for reinstatement into the Federal Civil Service through the Order of Mandamus was granted and the case of FAWEHINMI V. AKILU where the Order was issued to compel the Director of Public Prosecutions to exercise his discretion on whether or not to prosecute the respondents.

With regards to the Writ of Habeas Corpus vis-à-vis the Order of Mandamus, then there some obvious similarities and differences between the two administrative remedies.

First and foremost, both can be issued by the High Court. Second, both are issued to effect/bring about certain responses from administrative bodies and then they can be issued simultaneously in the same suit as we saw in the case of GENERAL SANNI ABACHA & ORS V. CHIEF GANI FAWEHINMI wherein the respondent pleaded for a mandatory order compelling the respondents to forthwith release the applicant (i.e. a writ of habeas corpus) or alternatively an order of mandamus compelling the respondents to forthwith arraign the applicant before a properly constituted court or tribunal as required by the constitution and the African Charter of Human and Peoples Rights (Ratification and Enforcement) Act…

But then, while one is a writ, the other is an order. While one applies strictly to cases of illegal or unjustifiable detention, the other tends to compel the performance of public duties and prevent cases of ultra vires actions.

Furthermore, generally, a writ of habeas corpus cannot be joined with a claim for damages. See the case of GIMBA V. DAURA. However, in view of the flexibility allowed under the fundamental rights procedure rules, this restriction might not hold true. This is not however so with respect to the order of mandamus.

Finally, it is worth mentioning that the implication of disobedience to both a writ of habeas corpus and an order of mandamus is that the defaulter becomes liable to be charged with contempt of court.

REFERENCES

1. Nigerian Administrative Law by P.A. Oluyede, 1988, Ibadan
2. The Law and the Court by Sir Ivor Jennings, 5^th edition
3. United Nations Universal Declaration of Human Rights, 1948
4. The 1999 Constitution of the Federal Republic of Nigeria, as variously amended
5. Administrative Law by Ese Malemi, 3^rd Edition
6. Black’s Law Dictionary by J.F. Garner, 9th edition