Certiorari is an ancient remedy developed by the royal courts in exercising supervision over justices of the peace.   The justices exercised jurisdiction in a range of criminal and quasi administrative matters. Over time, the remedy developed and was extended to bodies and tribunals whether courts or not where a legal body had authority  to affect rights and had a duty to act judicially or quasi-judicially in accordance with law.

The remedy issues against an entity or person who has acted in excess of its legal powers.  This may arise from acting outside of powers or in a way that it reaches basic fair procedures.

The essence of the remedy is that it negates usurpation or unlawful exercise of public authority.  Decisions are not reviewed on their merits, but on the issue of legality. An order for certiorari invalids or quashes  the determination of the lower court or tribunal.

If an order is appealed in accordance with  a  judicial or administrative appeal, then the substituted order on appeal is the relevant order for the purpose of certiorari.  The appeal substitutes the original order.

An order of certiorari may be made where it is determined that the court or body  had no jurisdiction, in which event the proceedings or matter are a complete nullity.  Other orders of certiorari may be based on invalidity due to the process lacking basic fair procedures before a court or body with the requisite authority.

This may be lead to  an acquittal for criminal purposes, where it is not  possible to retry the matter.  In the latter case, the accused has been in jeopardy whereas he has not been in jeopardy if there was a total lack of jurisdiction.

Historical Mandamus was a remedy issued by the King\’s Courts requiring that a legal obligation and duty be fulfilled.  An order of Mandamus may  require that a public duty be performed.

The obligation may be statutory. In some cases, it may subsist under contractual arrangements, for example, through the rules of an association exercising public functions. The nature of the obligation will be considered.

Generally an order of Mandamus may be issue, in appropriate circumstance where there appears to be a discretion on the part of the public body.  Many statutory provision provide an apparently discretionary public powers.  However, in context, it is often clear that what is apparently a discretion is in the appropriate context, an  obligation.

Orders of Mandamus may issue against public bodies, officials or inferior court.  It may not issue (as with other public remedies) against the higher courts. It may be made against court officers including the taxing master and the Master of the High Court.

Orders may be issued against public bodies at all levels including the government and state in appropriate cases. It applies where a public duty has not been performed.  It does not lie where it has been performed incorrectly, performed incorrectly.  If however, the public official refuses to perform a function or believes that he or she lacks jurisdiction where they do, the order may be made.

The applicant must have an interest in the duty being performed.  Generally a demand must have been made for performance followed by a refusal.  The demand must specify the duty.  Refusal may be found in inaction.

The grant of mandamus is said to be  exceptional and to be granted only where there is no other more convenient remedy available.  This does not necessary mean that there must be literally no alternative mechanism.  Factors of time and cost would be considered.

As with other public law remedies, delay or misconduct cause the court not to grant mandamus. A court will not make an order in vain.

An order of mandamus directs performance of a duty.  Depending on the nature of the duty, it may be in broad terms such that the precise exercise of power may not be specified.

An order of prohibition restrains a body or a lower court of limited jurisdiction from acting  unlawfully or in excess of jurisdiction. It is similar in nature to the remedy of certiorari which invalidates or quashes the decision of a public body.

As with certiorari it historically lay against inferior courts, i.e. now the District Court and Circuit Court but historically the justices is the exercise of the  additional quasi-judicial and quasi-administrative functions.

In modern times, the jurisdiction applies to administrative and quasi-judicial bodies in almost the same way as the remedy of certiorari.  It may be available to restrain what would otherwise constitute a breach of fair procedures.

Prohibition may prevent actions orders in breach of jurisdictional limits or in infringement of fundamental human rights .  Prohibition may be sought, for example where a prosecution is sought to be retaken in what would otherwise constitute an abuse of  the principle of double jeopardy. It may be sought where there has been an extraordinary delay in initiating proceedings in particular criminal proceedings., such that it may prejudice of fair trial.

Prohibition will not be readily  granted in anticipation of a breach of jurisdiction. Unless there is evidence otherwise, it will be deemed that inferior courts, tribunals and bodies will exercise their functions within limits of the law and in accordance with fair procedures.

A declaration is a civil remedy historically granted by the courts of chancery.  See the separate section in relation to declaration as an equitable remedy. Generally a declaration confirms a particular position but does not grant any remedies in consequence.  Public bodies however are entitled to follow the law and when the legal position has been affirmed in a particular respect, it may be expected that it will adhere to it the declaration.

The declaration is a flexible remedy. As with other public law remedies, it may be granted against bodies exercising judicial, quasi-judicial  and administrative functions. Formerly it was granted sparingly, but in modern times it is more readily granted provided there is a good reason for so doing.

A declaration will not be granted in respect of a moot or theoretical matter.  The person seeking the declaration must have an interest in the matter concerned.  The respondent  must be an appropriate party.

A party cannot simply have a declaration unopposed.  As with legal proceedings  generally, it may only be granted in the context of a dispute between parties with contrary interests. The order will not be made  in hypothetical circumstances. It must be based on facts before the court, in the normal way.

In theory, a declaration may be granted where there is an apprehended breach of jurisdiction.  There must be a real and immediate threat.  The applicant\’s interest must be an infringement of a right on the part of the applicant, although not necessarily one that will give rise to a civil action for damages.

In appropriate cases, the Attorney general may be joined to represent the public interest.  The court has power to appoint a party to represent a contrary view in appropriate circumstances.

A declaration as an equitable remedy is discretionary in nature.  The discretion is exercised in accordance with well-established criteria.  See generally the grounds on which public order remedies may be refused.  It may be refused, for example, on the grounds of the delay, the conduct of the applicant or the failure to use  an alternative relief or where in the circumstances it would provide no meaningful relief.

Court rules provide that a declaration may be granted where it is just and convenient. It is to  have regard to the nature of the matters in relation to which relief is sought whether by way of mandamus prohibition, certiorari or quo warranto, the nature of the persons or bodies against whom the relief may be granted.

As with other public order remedies, it may be sought together with or in the alternative to the classic public law remedies of certiorari, prohibition and mandamus.

In the case of challenges to the Constitutionality of statutory provisions, the proceedings will commonly  proceed by plenary hearing.  However, a declaration of constitutionality may also be made by way of an application for judicial review.

A declaration of unconstitutionality be sought in relation to the invalidity of statutory instrument either under the Constitution or because it is outside the  statutory power under which it is made.

In some cases, the declaration may be an alternative to certiorari.  Certiorari quashes decisions that are unlawful by reason of breach of jurisdiction or failure to use fair procedures.  A   declaration may be made in some cases because it is less disruptive that other remedies. As it does not invalidate the proceedings , it may allow the body itself to adopt the court declaration so as to be left disruptive to the statutory scheme and the decision making process.

The declaration may declare that there has  been a breach of fundamental constitutional fair procedure.  It may declare what is required for fair procedures in the circumstances.

The declaration may declare the proper application of the law to particular circumstances.  It may accordingly define the terms of the applicant’s rights and entitlements.  It may declare the true legal position and the terms of the rights and obligations of the public authority and the citizen.

Quo warranto is a standalone remedy in public law matters.  It is rarely invoked in practice in modern times.   It is sought by way of judicial review.

In strict terms it is an application challenging the qualifications of an appointee for office.  Alternative means exist challenge its decisions by way of declaration or injunction and quo warranto is unlikely to be used in modern times.

An injunction may be granted in an application by way of judicial review.  See generally the sections on injunctions and equitable remedies.  Injunctions may be granted  on much the same criteria as in private law matters.  It may be granted if the court considers it just and convenient, having regard to

  • the nature of the matters in respect of which relief may be granted by way of mandamus prohibition, certiorari or quo warranto,
  • the nature of the persons or bodies against whom relief may be granted and
  • all the circumstances of the case.

In the usual way, an injunction may be directed to a respondent to restrain it from engaging in specified conduct pending the determination of a matter or following a full hearing. It may be granted in aide of or in support of the requisite rights. It  may restrain the misuse of powers by public bodies.

An interlocutory injunction may be granted at the initial stage of judicial review proceedings pending full determination.  It may restrain  a public authority from taking particular steps.

The criteria for grant of an injunction in public law matters is similar to that in private law matters.  There must be a fair question to be tried.  The injunction  will be granted if the balance of convenient lies in favour of so granting.  See generally the sections on injunctions in this regard.

The public law context,  however, may lead to different in regard to the how and when injunctions are granted.  In public law cases, the issues are more commonly issues of law than issues of fact.  It will generally be more difficult to assess what is or is not a fair point of question of law without considering the matter in a preliminary application.  Damages are rarely granted in public law matters, so may be less suitable as a substitute remedy.

In public law matters, the interest of the public generally and that of  other third parties with an interest in the process, may be more significant factors than in private law matters.  The public interest may raise controversial issues. There may be a severe impact of the efficiency of administration and on the public, if for example, injunction is granted against an important public process such as adoption of the development plan.

The principles applicable to the grant of an  injunction are more flexible than those in respect of prohibition. It may be granted in an interim basis unlike other public law remedies


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