Thursday, 16 March 2017
Grounds for Judicial Review
DISCUSS GROUNDS FOR JUDICIAL REVIEW UNDER NIGERIA ADMINISTRATIVE LAW
Judicial review, the power of court to review statutes and governmental actions to determine whether they conform to rules and principles laid down in the constitutions. This power that was popularized by the U.S. case of Marbury V. Madison is not a prostitute but subject to some conditions before the court can unleash it. These conditions which could be either procedural or substantive or both are the care essence of the invention of the judicial review.
Judicial review is the doctrine under which legislative and executive actions are subject to review (and possible revalidation) by the judiciary
A courts power to review the actions of the other branches or levels of government, especially, the courts power to invalidate legislative and executive actions as being unconstitutional.
Judicial review is the control by the court of the exercise of power by governments. In judicial review, the court among other, usually examines the decision and the procedure used arriving at the decisions
An appreciation of judicial review would be aided by the knowledge of its basis, nay, and foundation with Nigerians a case study, the foundation of judicial is deeply rooted in the Nigerian constitution 1999, furthermore, every Nigeria constitution since independent, although many are defunct, gives vent for the operation of judicial review. For clarity and simplicity, it is pertinent I adumbrate the provisions of the constitution, thus section 46 of constitution of the Federal Republic of Nigeria 1999 (as amended) hereinafter referred to as C.F.R.N 1999, states;
Any person who alleges that any of the provision of this chapter has been, is being or likely to be contravened in any state in relation to him may apply to attach court in that state for redress.
Subject to the provisions of this constitution, a High Court shall have original jurisdiction to hear and determine any application made to it in pursuance of the provisions of this section and may make such order, issue such writ and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement within that state of any right to which the person who makes the application may be entitled under this chapter.
The above provision is mutatis mutandis, in par material with section 31 of the 1960 independence constitution.
It needs no emphasis to state that the C.F.R.N 1999 is the ground norm of the land by the provisions of S.1 which is a supremacy clause and by virtue of section 6, vested the judicial tower of the state on the judiciary.
Judicial review, like many legal terminologies, is not devoid diverse definitions. Some has defined it as the weighing of all exercise of governmental power on the scale of the ground norm by the judiciary.
For judicial review to be set in motion, there are grounds upon which it must kick start, this grounds could be either substantive or procedural.
The substantive ground
This section is concerned with grounds of review relating to the substance or content of the official decision or action that is under review. The substantive grounds are, viz:
i. The ultra vires rule (excess of powers)
When a power vested in a public authority is exceeded, acts done in excess of the power are invalid as being ultra vires. The ultra vires rule gains it survive from the constitutional system of government practiced in Nigeria. Ultra vires means “Beyond the power” “outside the power that has been given or “outside the power that one has”.
Where power is conferred, the exercise of it by the donee or authority possessing the power must necessarily be within the powers conferred on him. Otherwise, whatever is done outside, or beyond the owner conferred on the authority exercising the power is ultra vires, that is, beyond its power to do. The simplest instance of the rule is where a local council, whose capacity to act and to regulate private activities is derived from statute, acts outside the scope of that authority.
An act which is not within the power that is conferred is usually treated by court as null and void and of no effect whatsoever, under the doctrine of ultra vires.
In Gankon V. Ugochukwu Chemists Ltd, the two parties were disputing the title to a certain parcel of land. Whilst the plaintiff appellant relied on the local government council for his title, the defendant respondent relied on the State Government. The Supreme Court dismissing the plaintiff appellant’s claim held: that a local government council has no right, authority or jurisdiction to grant or vest any right of occupancy on land in an urban area or land designated by government of the state as constituting an urban area.
It is striking to note that ultra vires could be substantive or procedural. Substantive ultra vires is an exercise of power beyond that conferred by the constitution or statute. If the power exercised or act done is beyond the power or authority conferred by statute, whatever the name of the statute there is ultra views, for the doer has acted outside or beyond the power conferred on him by law.
On the other hand, procedural ultra vires is a failure to follow or observe a stipulated procedure. This is where there is a failure to follow the laid down procedure for doing a thing. Where a statute lays down the procedure to be followed in a doing a thing, a failure by a public authority or court to observe the procedure will result in procedural ultra views and court may set it aside, even though, the act was within one’s power to do .
The doctrine of ultra vires generally applies to every person and authority in a country, which inter alia includes
Abuse of discretionary power
Exercise of discretionary power involves the possibility of choosing between several decisions or course of action each of which may be lawful. However, in exercising discretion, an official or public body may (intentionally or inadvertently) make a decision or embark an action which the court considers.
As a general rule, discretion must be exercises fairly, reasonably and according to law. Therefore, where discretion is exercised improperly, arbitrarily, unreasonably, or based on irrelevant considerations and so forth, an order of court will issue against it. In Iwaji V. Fed commissioner.
Failure to Perform A Statutory Duty
A body may act unlawfully if it fails to perform a duty imposed upon it by statute. In such an instance, an order of man damns will usually he to compel the relevant authority or body to exercise the power or perform the public duty which has been neglected.
Mistake of fact
Where the action, policy or decision of government, public authority or body based on an iron of fact, misdirection on fact, falsehood, malice, oppression, in justice and so forth a court will set aside such action or decision as ultra vires.
In R.V Criminal injuries compensation board, four numbers of the House of Lords accepted that a decision could be quashed for a material enron of fact subsequently it has been held that a mistake of fact giving rise to unfairness is a separate head of challenge where there is an appeal on a point of law.
B. Review an procedural grounds
Even if the substance of an official decision is within the powers of the body taking it, a question that may arise is whether it has been made by a proper procedure, and it will be invalid if essential procedural requirements have not been observed.
B Procedural Grounds for Judicial Review
The following are ground procedural grounds for judicial review.
Natural justice: the origin of natural justice is to be found in the rules of fair procedure observed by the civil and luminal courts, Many aspects of natural justice at common law are now reinforced by the C.F.R.N. 1999 (as amended) which gives effect to the right to fair hearing under section 36.
As an unwritten principle, natural justice evolved largely through the control exercised by the central courts over bodies of inferior jurisdiction.
The natural justice rule connotes an inherent right in man to have a fair and just treatment at the hands of the rulers or their agents.
The court in Deduwa V. Okorodudu pointed that the principles of natural justice are easy to proclaim, but their precise extent is far less easy to define. However, the two essential of natural justice with which we are concerned in this appeal are that:
No man shall be judge in his own cause (Nemo judex in causa sua)
Both sides shall be heard (audi alterem parten)
The rule against bias: The essence of a fair judicial decision is that it has been made by an impartial judge. The latin phrase, nemo judex in causa sua, or nemo debetese judex in propria cause means that, no one should be a judge in own cause. No one should be both a prosecutor and a judge, in a matter in which he is a party or has an interest, or stalk.
Malemi in his book expounded the word “bias” as an opinion or feeling in favour of one side in a dispute or argument.
On the other hand, hearing in Akoh V. Abuh has been seen as a cause or matter, means to hear and determine the cause or matter, means to hear and determine the cause or matter, means to hear and determine the cause an matter. Delivery of the judgement in a matter is part of hearing of the cause or matter.
Fair hearing: this purports the each party should have the opportunity of knowing the case against him or her and of stating his or her case. Both parties must have the chance to present their version of facts and to make submissions on the relevant rules of law. The court in Mohammed V. Isanob stated that “fair hearing involves a fair trial.
It is worthy of note to point out that a fair hearing and fair trail are one and same. The court in Ariori V. Elemo, adopting Ademola C.J.N in Mohammed V. Kano posited “it has been suggested that a fair hearing does not mean a fair trial. We think a fair hearing must involve a fair trial and a fair trial of a case consist of the whole hearing. We therefore see no difference between the two. The true test of impression of a reasonable person at the trial, whether from his observation, justice has been done in the case”.
Fair hearing admits extensive sacrosanctity as it predates the constitution. The enshrinement in the constitution is but reinforcement. Even when the constitution is overwhelmed by circumstance like military coup or revolution, the firmness of fearing hearing remains invariably constant. The rule of fair hearing is of great antiquity, as biblical Cain is the first recorded beneficiary of the rule.
Where a tribunal or adjudicatory body is in breach of this fundamental principle, at the instance of the affected party, the court can delve into the matter to ascertain whether or not from the record of proceeding the breach of the rule of fair hearing has been occasioned. An order of certiorari may lie to cause the adjudicatory body in question to bring fort its record of proceedings for the perusal of the reviewing court. On another side, a party may seek an order of prohibition to cause the adjudicatory body from further proceeding in the proceedings when it is manifestly within the surface of reasonableness that fair hearing would suffer substantial neglect.
The person or entity launching a judicial review action must have sufficient standing or interest in the matter to justify the courts intervening on their behalf with respect to the decision of a public body. The court will not allow mere busybodies to bring proceedings to supplies the vital locus standi that the courts require before they would contemplate intervention in judicial review proceedings. Adesanya v. President illustrates the foregoing.
Failure to serve pre-action notice: Failure to serve the defendant a pre-action notice where one is required by law, would suspend the jurisdiction of the court the merit and urgency of the matter notwithstanding. Pre-action notice is an intimation of the plaintiff to the defendant of his intention to go to court against it/him of his grievances are not addressed. An Edict of the Benue State Government provides that no court action shall lie against a local government until one month after a written notice shall have been served on the local government by the plaintiff. Similarly, it has been provided in the National Port Authority (NPA) Act that an action can only lie against the authority after service of a pre-action notice on it. Eventually, it has been decided that where the plaintiff failed to study the law establishing a public body so as to know the procedure
UNRIPENESS OF THE ISSUE: To be entitled to invoke the jurisdiction of the court, the plaintiff must ensure that his matter is ripe for hearing. He must show that there is a dispute real which the court needs to solve. Any subject that does not present a problem which otherwise would be regarded as academic, hypothetical, speculative in line with the court’s decision in the case of Plateau State V A. G. Federation would ordinarily incapacitate the court.
Failure to exhaust administrative remedies: In the case of Whyte V Kuzych, the court held strongly that the case of the plaintiff would fail where he consciously failed to avail himself and to exhaust all administrative remedies before proceeding to the court.
Excess and Absolute Power of the Attorney General: The constitution gives the Attorney General both at the Federal or State level an excessive and absolute power to continue or discontinue a criminal proceeding at any time which his powers is not subject to judicial review.
Death of the Plaintiff: Where a plaintiff dies, a personal cause of action dies with him as he can no longer prosecute it. This is expressed in the Latin maxim action personal is moritur cum persona, meaning a personal right of action dies with the person who owns it.
1. Enlightenment: It is beyond argument that the bulk of Nigerians are illiterates who are majorly bordered about their daily bread. The grounds for judicial review require an enlightened and educated mind to comprehend its workability and modus operandi. The organizing of symposium and workshop by the men of the bar on ex gratia basis would go a long way to imbibe the legal process into the Nigerian mind.
2. Checkmating of the bench: It is without doubt that the independence of the judiciary is well encapsuled in the constitution yet, the judiciary is not an institution of robots which follows the instructions inculcated in it to the letter. The judiciary is a body of men and women who unfortunately are products of diverse social, political, economic and ethnic divisions. Some may turn out to be a ditch in the nobility of bench, who for personal benefits and self enrichment would sway the pendulum of justice to the highest bidder.
For judicial review to be risen, it means that there is defect in the proceedings in question. Actions should be taken to scrutinize to the dead end whether the cause of the defect was built on personal gains of the trial judge and where that is established, stringent punishment should be meted out.
3. Legislative expertise: Some of the laws or acts establishing adjudicatory bodies are clothed with ambiguity and multiplicity thereby causing the adjudicatory body to swim in the waters of confusion as to which interpretation or law best suit the circumstance and also could occasion the error law.
Furthermore, the legislative body should as much as possible amend or repeal or unify acts a laws which are document to save adjudicatory bodies from confusion.
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Ese malemi, the Nigerian constitutional law, 2010 edition Chukwuma A.D. CHINWO, current principles and practice of administrative law in Nigeria.
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By Rajendra Ramlogan
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