JUDICIAL REVIEW

CONTENTS

1.0       Introduction

2.0       Objectives

• Main Content
• Application for Judicial Review
• Mode of Applying for Judicial Review

4.0       Conclusion

5.0       Summary

6.0       Tutor-Marked Assignment

7.0       References/Further Readings

INTRODUCTION

This unit deals with judicial review and its application in Nigeria. We will consider various examples in Nigeria and the attitude of the court.

OBJECTIVES

At the end this unit, you should be able to:

identify the various course opened to a person whose right is being or will be and have been infringed upon.

MAIN CONTENT

Application for Judicial Review

Cases Appropriate for Application for Judicial Review

By Order 43 of the State High Courts Uniform (Civil Procedure) Rules and Order 46 of the Federal High Court (Civil Procedure Rules) 1999 the underlisted provisions are made for judicial review- S.l (1) An application for:

• an order of mandamus, prohibition or certiorari, or
• an injunction restraining a person from acting in any office in which he is not entitled to act shall be made by way of an application for judicial review in accordance with the provisions of this Order.
• An application for a declaration or an injunction (not being an injunction mentioned in sub-rule (1 )(b) of this rule) may be made by way of an application for judicial review and on such an application, the Court may grant the declaration or injunction claimed if it considers that having regard to:
• the nature of the matters in respect of which relief may be granted by way of an order of mandamus, prohibition or certiorari;
• the nature of the persons and bodies against whom relief may be granted by way of such an order; and
• all the circumstances of the case

It would be just and convenient for the declaration or injunction to be granted on an application for judicial review.

Joinder of Claims for Relief

On an application for judicial review, any relief mentioned in rule 1 (1) or (2) of this Order may be claimed as an alternative or in addition to any other relief so mentioned if it arises out of or relates to or is connected with the same matter.

Grant of Leave to Apply for Judicial Review

S.3:	(1)	No application for judicial review shall be made unless the leave of the Court has been obtained in accordance with this rule.
	(2)	An application for leave shall be made ex-parte to the Court, except in vacation when it may be made to a judge in Chambers and shall be supported by -
	(a)     (b)	a statement, setting out the name and description of the applicant, the relief sought and the grounds on which it is . sought; and affidavit to be filed with the application, verifying  the facts relief on.
	(3)	The Applicant shall file the application not later than the day before the motion is heard and shall at the same time lodge copies of the statement and every affidavit in support.
	(4)	The Court hearing an application for leave may allow the applicant's   statement    to    be    amended,    whether    by

specifying different or additional grounds or relief or otherwise on such terms, if any, as it thinks fit.

• The Court shall not grant leave unless it considers that the applicant has a sufficient interest in the matter to which the application

 

• Where leave is sought to apply for an order of certiorari to remove for the purpose of its being quashed any judgment, order, conviction or other proceedings 'which is subject to appeal and a time is limited for the bringing of the appeal, the Court may adjourn the application for  leave until the appeal is determined or the time for appealing has expired.

 

• If the Court grants leave, it may impose such terms as to costs and as to giving security as it thinks

 

• Where an application for leave is refused by a Judge in Chambers, the applicant may after the period of vacation make a fresh application on notice to the
• An application to a Judge in Court under sub-rule (8) of this rule shal1 be made within 10 days after the Judge's refusal to give
• Where leave to apply for judicial review is granted, then-
• if the relief sought is an order of prohibition or certiorari and the Court so direct, the grant shall operate as a stay of the proceeding to which the application relates until the determination of the application or until the Court otherwise orders;
• if any other relief is sought, the Court, may at any time grant in the proceedings such interim relief as could be granted in an action begun by Writ

Delay in Applying for Relief

S.4 (1) Subject to the provisions of this rule, where in any case the  Court considers that there has been undue delay in making an application for judicial review or, in a case to which sub-rule (2) of this rule applies, the application for leave under rule 3 of this Order is made after the relevant period has expired, the Court may refuse to grant-

• leave for the making of the application; or
• any relief sought on the application

If in the opinion of the Court the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.

• In the case of an application for an order of certiorari to remove any judgment, order, conviction or other proceeding for the purpose of quashing it, the relevant period for the purpose of sub- rule (1) of this rule is three months after the date of the proceeding.
• Sub-rule (1) of this rule is without prejudice to any statutory provision which has the effect of limiting the time within which an application for judicial review may be

Mode of Applying for Judicial Review

S.5:	(1)	Subject to sub-rule (2) of this rule, when leave has been granted to make an application for judicial review, the application shall be made by originating motion, except during vacation when it may be made by originating summons to a Judge in Chambers.
	(2)	Where leave has been granted and the Court or Judge in Chambers so directs, the application may be made by motion to a Judge sitting in open court or, by originating summons to a Judge in Chambers.
	(3)	The notice of motion or summons shall be served on all persons directly affected and where it relates to any proceedings in or before a Court and the object of the application is either to compel the Court or an officer of the court to do any act in relation to the proceedings or to quash them or any order made therein, the notice or summons shall also be served on the clerk or registrar of the Court and, where any objection to the conduct of the Judge is to be made, on the Judge.
	(4)	Unless the Court granting leave has otherwise directed, there shall be at least 10 days between the service of the notice of motion or summons and the day named therein for the hearing.
	(5)	A motion shall be entered for hearing within 14 days after the grant of leave.
	(6)	An affidavit giving the names and addresses of, and die places and dates of service on, all persons who have been served with the notice of motion or summons shall be  filed before the motion or summons is entered for hearing and, if any person who ought to be served under this rule

has not been served, the affidavit shall state that fact and the reason for it, and the affidavit shall be before the Court the hearing of the motion or summons.

(7) If on the hearing of the motion or summons the Court is of opinion that any person who ought, whether under  this rule or otherwise, to have been served has not been  served, the Court may adjourn the hearing on such terms (if any) as it may direct in order that the notice or summons may be served on that person.

Statements and Affidavits

S.6:	(1)	Copies of the statement in support of an application for leave under rule 3 of this Order shall be served with the notice of motion or summon and, subject to sub-rule (2) of this rule, no grounds shall be relied upon or any relief set out in the statement.
	(2)	The Court may on the hearing of the motion or summons allow the applicant to amend his statement whether by specifying different or additional grounds of relief or otherwise, on such terms, if any, as it thinks fit and may allow further affidavits to be used if they deal with new matters arising out of an affidavit of any other party to the application.
	(3)	Where the applicant intends to ask to be allowed to amend his statement or to use further affidavits, he shall give notice of his intention and of any proposed amendment to every other party.
	(4)	Each party to the application shall supply to every other party on demand and on payment of the proper Court charges copies of every affidavit which he proposes to use at the hearing including, in the case of the applicant, the affidavit in support of the application for leave under rule 3 of this Order.

 

Claim for Damages

1. 7: On an application for judicial review, the Court may subject to sub-rule (2) of this rule, award damages to the applicant if :

• he has included in the statement in support of his application for leave under rule 3 of this Order a claim for damages arising from any matter to which the application relates; and
• the Court is satisfied that if the claim had been made in an action begun by the applicant at the time of making his application, he could have been awarded

Application for Discovery, Interrogatories, Cross-Examination etc.

S.8:   Unless the Court otherwise directs; any interlocutory application  in proceedings on an application for judicial review may be made to any Judge notwithstanding that the application for judicial review has been made by motion and is to be heard by the Court.

Hearing of Application for Judicial Review

S. 9:	(1)	On the hearing of any motion or summons under rule 5 of this Order, any person who desires to be heard in opposition to the motion or summons and appears to the Court to be a proper person to be heard, shall be heard, notwithstanding that he has not been served with notice of the motion or the summons.
	(2)	Where the relief sought is or includes an order of  certiorari to remove any proceedings for the purpose of quashing them, the applicant may not question the validity of any order, warrant, commitment, conviction, inquisition or record unless before the hearing of the motion or summons he has filed a copy thereof verified by affidavit or accounts for his failure to do so to the satisfaction of  the Court hearing the motion or summons.
	(3)	Where an order of certiorari is made in any such case as referred to in sub-rule (2) of this rule, the order shall, subject to sub-rule (4), direct that the proceedings shall be quashed forthwith on their removal into the Court.
	(4)	Where the relief sought is an order of certiorari and the Court is satisfied that there are grounds for quashing the decision to which the application relates the Court may, in addition to quashing it, remit the matter to the Court, tribunal or authority concerned with a direction to reconsider it and reach a decision in accordance with the findings of the Court.
	(5)	Where the relief sought is a declaration, an injunction or damages and the Court considers that it should not be granted on an application for judicial review but might have been granted if it had been sought in an action begun

by writ by the applicant at the time of making his application, the Court may, instead of refusing the application, order the proceedings to continue as if they had been begun by writ.

Saving for Person Acting in Obedience to Mandamus

1. 10: No action or proceeding shall be begun or persecuted against any person in respect of anything done in obedience to an order of mandamus.

Consolidation of Applications

1. 11: Where there is more than one application pending against several persons in respect of the same matter, and on the same grounds, the Court may order the applications to be consolidated.

Explanation and Scope of Judicial Review

It must be noted that a judicial review can take place by an action based on the prerogative order of certiorari to remove proceedings from inferior Courts or Tribunals to the High Court to be quashed for many reasons like (1) want of jurisdiction (2) excess of jurisdiction, (3) unfair procedures and so on.

In other words, and according to Gamer:

The ambit of certiorari can be said to cover every case in which a body of persons, of a public as opposed to a purely private or domestic character, has to determine matters affecting subjects provided always that it has a duty to act judicially.

Thus continued Gamer, the remedy may be obtained on the grounds of a defect in the jurisdiction of the Court or Tribunal below, or of a breach of the rules of natural justice

(1983) 1 SC. NLR. 296. The question of jurisdiction is an important aspect of the law to be discussed, and for our purpose it may be  pertinent to state the views of the various Supreme Court judge over it  as follows:

PER UWAIS, JSC. In State vs. Onagoruwa:

It has been said time without number that the issue of jurisdiction of a Court is fundamental. Its being raised in the course of proceedings can neither be too early or premature nor be late. For if there is want of jurisdiction the proceedings of the Court will be affected by a fundamental vice and would be a nullity however well conducted the proceedings might otherwise be.

See Oredoyin v. Arowolo (1989) 4 NWLR (Pt. 114) 172 at P.187 and Onyema v Oputa (1987) 3 NWLR) (Pt. 60) 259.

Furthermore, the jurisdiction of a Court to determine an issue as to whether it has jurisdiction is not a procedural matter but substantive, since any Court without jurisdiction is incompetent to determine a  matter and if it does exercise the jurisdiction which it does not possess, its decision. is a nullity. See Ojokolobo v. Alanamu (1987) 3 NWLR (Pt. 61) 377 at P. 391; Jfezue v. Mbadugha (1984) 5 Sc. 79; (1984) I SVC NLR 427 and Odi v. Osafile (1985) 1 NWLR (Pt. 1) 17.

Mr. Justice Karibi- Whyte JSC in the same case stressed the point that the question of jurisdiction can be raised at any time and even on appeal when he held as follows:

In my opinion, it is neither too early nor too late for a party to litigation to raise the issue of lack of jurisdiction in the Court. As soon as the parties, and the subject matter of the LIS, the issues in dispute, are clear and have been identified, the issue of lack of jurisdiction can be raised. So also can the point be raised on appeal?

'On his own part, Mr. Justice BELGORE JSC raised the seriousness of the lack of jurisdiction and urged the Court to raise such issues  suo  moto if they are apparent on the record notwithstanding the fact that the Counsels of the parties failed to advert to it. Further, he stated that sometimes the question of jurisdiction is latent; and once raised by any of the parties, it must be addressed first by the Court, because if a Court should embark on a trial without jurisdiction, its exercise will be a nullity. See Oyema v. Oputa (1987) 3 NWLR (Pt. 60) 259 Conclusively Mr. Justice Belgore said as follows:

The red light to Court to be cautious is the issue of jurisdiction, and it must be settled by proper hearing of the parties before further proceedings in the matter can be embarked upon. Similarly there are occasions after a matter has been before the court for long before the issue of jurisdiction arises - some in the middle of the entire proceedings or towards its tail end - in that case the jurisdiction must first be settled before proceeding further. See Turkur v. Government of Gongola  (1989) 4 NWLR (Pt. 117) 517. It is therefore never too late to raise the issue of jurisdiction and in cases of this nature it is never premature to raise it. See Management Enterprises Limited v. Otusanya (1987) 2 NWLR (Pt. 55) 179. The preliminary objection as to jurisdiction is usually taken first and decided upon. See Olaba v. Akereja (1988) 3 NWLR (Pt. 84) 508.

Mr. Justice NNAEMEKA-AGU JSC. in his own part baked up his colleagues and held that:

"Once an issue of jurisdiction is raised at any stage in the proceedings in any matter it ought to be gone into first as failure to do so may mean  that all the exercise of adjudication may turn out to be a useless waste of time".

With all these discussion therefore, it is apparent that one can raise the question of or lack of jurisdiction on appeal even in the Supreme Court for the first time notwithstanding the fact that such issues were not raised in the lower Courts.

Raising Jurisdiction on Appeals/Supreme Court:

The general rule is that issues not raised in the Court below cannot now be made a ground of appeal, but this is not a rule of thumb for it is subject to an exception bothering on jurisdiction. An  appellant therefore, can raise the issue of jurisdiction at any stage of the proceedings with the leave of the Court. See Shonekan v. Smith (1964) 1 ALL NLR. 168 at 173.

And if it is fundamental as to go to the root of the case of the trial Court, the Court will uphold it. See Obikoya v. Registrar of Companies & anor (1975) 4 Sc. 31 at 34 and Sken Consult Nig. Ltd. v. Godwin Secondy Ukei (1981) 1 Sc. 6 at 18. The appeal Court will allow even the question of jurisdiction or in competency of the Court to be raised if the question to be raised involves substantial points of law (Substantive and procedural) and it is plain that no further evidence could have been adduced which would affect the decision on them. This will be allowed to prevent an obvious miscarriage of justice. See Akpene v. Barclays Bank Nig. Ltd. and anor. (1977).

1 Sc. 47 and Abinabina v. Enyinadu (1953) AC. 209 and 210.

One may ask as at this stage, for the time when a proceeding of a Court may be declared incompetent; and the answer is as follows:-

The question of when a Court. is competent to decide a case has been judicially considered and redefined in 'such cases like the Western Steel Works Ltd. v. Iron Steel Workers Union (1986) 3 NWLR (Pt. 30) 617 where OBASEKI JSC. said as follows:

A Court can only be competent if among other things, all the conditions to its having jurisdiction are fulfilled. A Court is competent when:

1. It is properly constituted as regards numbers and qualifications of the members of the Branch and no member is disqualified for one reason or another; and the subject matter of the case is within its jurisdiction and there is no feature of the case which prevents the Court from exercising its jurisdiction; and
2. The case comes before the Court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction". See also Kalio v. Daniel (19⁷9) 12 Sc.

Again certiorari proceedings can be maintained as said above, if the inferior tribunal contravenes the principles of Natural Justice. And for the understanding of the law, it may be pertinent to write on the  meaning and application of the words "Natural Justice" also.

CONCLUSION

In this discourse, you learnt about the constitutional provision of fundamental human right in chapter IV of the 1999 Constitution and the fundamental right enforcement procedure rules of 1979 and how application could be made for judicial review in the law court.

SUMMARY

In this unit, you have learnt about the definition and types of powers or procedure a litigant should employ to get a redress in the law court.   You have been able to distinguish between fundamental human right  and natural rights and the approach to judicial review in Nigeria.

TUTOR-MARKED ASSIGNMENT

1. Identify the Rights protected by chapter IV of the 1999 Nigeria Constitution.
2. What is judicial review?

REFERENCES/FURTHER READINGS

D.E. Smith (1977). Constitution and Administrative Law.

Nwabueze, B. (1973). Constitutionalism; Hurst & Co. London.

Sokefun, J. (2002). Issues in Constitutional Law and Practice in Nigeria, Olabisi Onabanjo University, Ago-Iwoye.

M.M. Mowoe (2002). Constitutional Law in Nigeria.

Ademola Yakubu & Toriola Oyewo (2001). Constitutional Law in Nigeria.