What is Mandamus?

By Usman Bwala

There are many types of writs, one of which is called mandamus. Mandamus is a Latin word which in English means “we command” Black’s Law Dictionary p.867. It is an order requiring that an act be done; the act to be done must be public act Exparte Sunday Odje 1961 IV All NLR 979. Mandamus is a peculiar nature of writ Layanju vs Araoye 1961 1 All NLR 83 where it was held “we are faced with the peculiar nature of the writ of mandamus.” Mandamus is issued when there are issues of exceptional importance or extraordinary in nature and requires prompt action In Re Grand Jury Subpoena 1978 58 F.S 2^nd 1103. The performance expected must be clearly defined and there is no other remedy available John Vishevesky vs US 1978 F.S. 2d 1249 where it was held “Appropriateness of mandamus relief turn on existence of clear right in plaintiff to demand performance by defendant of plainly defined, peremptory and ministerial duty and lack of remedy other than mandamus.”

Mandamus is issued only by a competent court commanding or directing an inferior tribunal to perform a particular ministerial duty Minister Int. affairs vs Edmund Okoro 2003 10 F.R. 115 where it was held per C.B. Ogunbiyi JCA as “For mandamus to lie therefore, it must issue from a court of competent jurisdiction commanding an inferior body or person for the performance of a particular act of purely ministerial duty imposed by law.” The issuance of mandamus is discretionary of a court U.S. vs John Sherman 1978 56 F.S. 2d 1358.

          Mandamus is issued against a body which has a public duty to perform and there was a failure or neglect to perform it Bashir Shitta Bly vs Fed. Pub. Service Commission 1981-82 BNSLR 119 where it was held “The order of mandamus of course only issues to a person or corporation requiring him or them to do some particular thing therein specified which appertains to his or their duty or office and is in nature of a public duty.” Before mandamus is issued there must be a person charged with doing a public duty and the person charged with the public duty failed or neglected to act when demanded Excelsior Ins. Co vs The Registrar Insurance 1976 1 FNLR 174.

          The public duty requirement in mandamus must be personally owned to the applicant Exparte Chief Lewis Ekpanga 1962 1 All NLR 265. Public duty can arise from native law and custom Erurhobore vs Otebrise 1972 1 U.I.L.R 33. Mandamus will issue against a father to return his daughter to a husband where necessary customary practices were completed Erurhobore vs Otebrise supra where it was held “…that an order of mandamus would lie to enforce a duty arising under native law and custom.” The appointment of a chief where all traditional rites and ceremonies were performed is enforceable by mandamus Exparte Chief Lewis Ekpanga 1962 1 All NLR 265.

          Performance of public duty must owe to the applicant Fawehinmi vs Akilu 1987 4 NWLR (Pt 67) 797. An applicant must prove that he requested for the performance of the public duty and he was denied or there a refusal R vs Habley Revising Barrister 1912 3 K.B 518 where it was held “The requirement that before the court will issue mandamus there must be a demand to perform the act sought to be enforced and a refusal to perform it…”

          Failure to request for performance of the public duty and a failure or refusal to perform the duty is fatal to mandamus proceedings Emmanuel Atungwa vs Chief Ada Okechukwu 2000 1 NWLR (Pt 641) 507 held as follows “In fact the counsel had agreed that the proceedings of an order of mandamus were taken out without satisfying a condition precedent which was a demand to perform a public duty and a refusal.”

          When mandamus is issued commanding the performance of an illegal act any affected person can apply to have the mandamus quashed Alamieyeseigba vs Yeiwa 9 WLR Feb 2001 94. An applicant must have legal right to apply for mandamus before he ask for it Queen vs Lewisham 1897 1 Q.B. 498.

          There are two stages in application for mandamus Igwe Ikemefuna vs Chief Nweke 1990 5 NWLR (Pt 150) 255 held “Mandamus proceedings is by special procedure under the Rules and is in two stages. Firstly, by an exparte application for leave, and secondly by originating motion or originating summons…” Before mandamus is issued the act complained of must be lawful The State vs COP Anambra State 1982 2 CLR 252.

          The fact that to issue mandamus will bring chaos and inconvenience is not a ground for a refusal to grant it R vs Padington 1966 1 Q.B. 380. Where a law provides for specific procedures to be followed failure to follow the specific procedure can be corrected by granting mandamus Banjo vs Abeokuta Urban Dev. Committee 1965 2 All NLR 84. Where a body acted on extraneous matters or disregarded provision of law before arriving at a conclusion mandamus will issue The Queen vs Cotham 1898 1 Q.B. 802.

          Mandamus does not issue against a party who has a discretion to do or not do a thing Exparte Chief Sunday Odje 1961 4 All NLR 206, Exparte Bank of the North 1963 All NLR 564. Mandamus will issue where an applicant was wrongfully dispossessed of office or function Malemo vs JAMB 2 NPLR 1032.

          Mandamus does not issue when there is an alternative method of performing it Queen vs Registrar Joint Stock 1888 21 Q.B D 131, Hanafi vs Board of Health 1960 SLJR 230. However, where the alternative method is less convenient, beneficial or effectual mandamus will issue Ocha Ulegede vs Com for Agric Benue State 1996 8 NWLR (Pt 467) 437.

          Mandamus does not lie against an archbishop to admit candidates to convocation The Queen vs Archbishop of New York 1888 20 Q BD 740. Mandamus will not lie against an officer of university to perform a duty because it is considered as domestic matter of the university R vs Dundhealth 1891 2 All ELR 741, see also Akintami vs Onwumecheli 1985 1 S.C. 132.

          The principal function of mandamus is to remedy defects in justice Bashir Shitta – Bey vs FPSC 1981-82 BNSLR 119. Mandamus will issue against a body which failed to pay an applicant over a contract he had executed Richard vs Manders 66 F.S. 520. Whenever a person has a duty towards another and fails to perform such duty mandamus will compel the negligent party R vs Commissioner for Wood 1850  15 Ch.D 761 held “whenever a person whether an officer under the crown or not has duty towards another person mandamus will lie to compel him to perform it.”

          To issue or not to issue mandamus has always been considered on strict basis R  vs Commissioner of Custom and Excise 1970 1 WLR 150.

Justice Usman Bukar Bwala J.P, retired from the High Court of Justice, Maiduguri, Borno State.