Judicial Review of Administrative Action in Nigeria

High Courts have inherent jurisdiction to supervise the proceedings and decisions of inferior courts or tribunals or those of a person or body of persons charged with the performance of a public duty. This supervisory power is exercised by way of what is known as judicial review of administrative action.

In 1977, a uniform, flexible, and comprehensive code of procedure for the exercise of such power was introduced under Order 53, Rules of the Supreme Court of England. The Nigerian Federal High Court and many States High Court subsequently developed comprehensive codes of procedure which are substantially similar to those in Order 53, R.S.C (now Order 54 R.S.C).

Notably, Order 34(1) Federal High Court Rues 2009 and Order 40(1) High Court of Lagos State Civil Procedure Rules 2012 are in pari materia with Section 31 (1) and (2) of the Senior Courts Act, U.K., 1981 and Order 54 (2) and (3) R.S.C. England dealing with judicial review applications.

By this special procedure, a person seeking to challenge an administrative act or omission can apply to the High Court for any of the prerogative orders of mandamus, certiorari or prohibition or in an appropriate case may seek a declaration, injunction or damages.

It is important to note that complaints made under this procedure address only the decision making process and not the decision itself. Thus, the Court is called upon to review the correctness of the process leading to a decision and not the merits of the decision arrived at.

It is therefore not the purpose of judicial review to substitute the opinion of the court for that of the authority constituted by law to decide the matters in question. That will be a matter for appeal not permitted under this procedure. Rather, its sole purpose is to ensure that the individual is given a fair treatment by the authority to which he has been subjected (Governor of Oyo State v. Folayan [1995] 9 SCNJ 50; Chief Constable of North Wales Police v. Evans [1982] 1 WLR 1155).

Grounds for seeking Judicial Review:

The decision of an inferior court/tribunal or of a public authority may be quashed upon an application for judicial review in any of the following cases:

Where the inferior court/tribunal or public authority –

1. Acted without powers (lack of jurisdiction)
2. Went beyond its powers (exceeded jurisdiction)
3. Failed to comply with applicable rules of natural justice
4. According to the record, proceeded on a mistaken view of the law
   (error of law on the face of the record).
5. Arrived at a decision so unreasonable that no court, tribunal or public
   authority properly directing itself on the relevant law and acting
   reasonably could have reached it (Associated Provincial Picture Houses
   Limited v. Wednesbury Corporation [1948] 1 K.B 223)

Public or Private Law Interest? :

Since judicial review is the review of proceedings and decisions of inferior courts and public bodies charged with the performance of a public duty, this legal remedy is only concerned with the enforcement of public law.

Thus, notwithstanding that the complaint is against a public body, it is a prerequisite that the right sought to be enforced is a public law right rather than a private law right. In other words, that the decision infringed upon a right entitled to protection under public law.

Public Law has been described as “the system which enforces the proper performance by public bodies of the duties which they owe the public” (per Lord Woolf, 1986).  Private law, on the other hand, is concerned with enforcement of personal rights of individual such as those emanating under property, contract, duty of care under tort and mainly regulates relations between private persons.

To bring an action for judicial review, it is therefore required that the right sought to be protected is not a personal and individual right but a public one enjoyed by the public at large. An action that does not meet this requirement will be struck out by the Courts as it may only be commenced in the normal way of bringing actions.

Who may seek Judicial Review (Locus Standi)? :

The question of who is entitled to bring an application for judicial review is answered by the Rules requiring that an Applicant must show that he has ‘sufficient interest‘ in the matter to which his/her application relates (Order 34, Rule 3(4) Federal High Court Rules, Order 40, Rule 3(4) Lagos State High Court Rules).

The term ‘sufficient interest’ has been held not to create a class person popularly referred to as a ‘private attorney general’, who seek to champion public interests in which he is not himself directly or personally concerned under the guise of applying for judicial review.

Time for seeking Judicial Review:

An application for judicial review has to be brought promptly and not later than 3 months from the date when the grounds for the application first arose ( Order 34(4) Federal High Court Rules, Order 40(4) Lagos State High Court Rules, Order 54 (5) R.S.C).

Remedies available under Judicial Review:

Certiorari

An order of Certiorari brings up into the High Court a decision of an inferior court or tribunal
or that of a public authority for it to be quashed.

Prohibition

An order of Prohibition is used to restrain an inferior court, tribunal or public authority
from acting outside of its jurisdiction.

Mandamus

An order of Mandamus is used to compel an inferior court, tribunal or public authority to
carry out its judicial function or other public duty it is failing or refusing to perform.

Injunctions and Declarations

Subject to any other provision, an application for injunction to restrain a person
from acting in any office in which he is not entitled to act can only be brought by way of application
for judicial review (Order 34, Rule 1(b) FHC Rules, Order 40, Rule 1(b) of Lagos State High Court Rules, Order 54, Rule 2 R.S.C. and Section 31(1)(c), Senior Courts Act, 1981).

An application for any other injunction or declaration may be made by way of an application for judicial review and the Court may grant such declaration or injunction where it deems it just and convenient to do so by way of an application for judicial review, having regard to all the circumstances of the case (Order 34 Rule 1(2) FHC Rules, Order 40, Rule 1(2) Lagos State High Court Rules, Order 54, Rule 3 R.S.C. and Section 31(2), Senior Courts Act, 1981).

Damages

In an appropriate case, damages can be permitted as a consequential relief in a judicial review application. However, the Applicant must have included a claim for damages from the outset and the Judge must be satisfied that if the action had been begun in the normal way, the Applicant would have been entitled to an award of damages (Order 34(7) FHC Rules, Order 40(7) Lagos State High Court Rules).

Procedure in seeking Judicial Review

This involves 2 stages.

The first is in bringing an application without notice to the other side (an ex parte Motion) to seek leave of the Court to bring an application for judicial review. At this stage, among other things, the court will consider whether the motion raises any question of infringement of a public right and that the party seeking leave has a ‘sufficient interest’ in the matter to invoke the jurisdiction of the court.

It is only upon a successful application for leave that the application can proceed to the second stage at which point the judicial review application will be filed on notice to the other side and served on them (Order 34(3) FHC Rules, and Order 40(3) Lagos State High Court Rules).

If the relief sought is an order of prohibition or certiorari and the Judge so directs, the grant of leave shall operate as a stay of the proceedings to which the application relates until the determination of the application or until the Judge otherwise orders (Order 34 Rule 3(6)(a) FHC Rules and Order 40, Rule 3(6)(a) Lagos State High Court Rules).