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Judicial Review of Administrative Adjudication/Action



In this essay, we shall firstly consider those things that are to be taken into consideration before igniting the judicial review process against an administrative exercise of judicial power. That is to say, the considerations for igniting the judiciary review administrative actions. But, note that judicial review is a kind of inquest with a view to examining the legality or otherwise of the action of a particular agency of government with a view to determining its legality or declaring it null and void.

Requirements to be satisfied before an action for Judicial Review is Maintained

These requirements enable the court to have the jurisdictional competence or capacity to review the administrative action or adjudication. The requirements are examined herein below:

1.             The Issue of Locus Standi: A court of law cannot concern itself with the suit of a busy body or a meddlesome interloper. Before a person can competently invoke the jurisdiction of the court, he must have a legitimate grievance to ventilate not doing so on behalf of another person; he must have the standi to sue. This is a fundamental consideration. It is the right to sue. The issue of locus standi is inextricably interwoven with the issue of jurisdiction

2.            The Suit must not be Hypothetical, Academic, Speculative or Remote: This is because a court of law will not concern itself with such cases. An analogy could be drawn from America, where the „doctrine of ripenness applies. This doctrine  is  to  the  effect  that  a  suit  must  be  ripe  for  hearing,  not  merely academic or speculative. Accordingly, if the suit is not ripe, the implication is that  the  court  with  not  have  the  jurisdiction  to  hear  the  matter.  Thus,  as provided for in section 42 and 46 of the 1979 and 1999 Constitutions, respectively, if there is a present  infraction of your right, there will be no problem of jurisdiction as the court will hear the complainant/plaintiff. But if you complain of an action which is proposed to be taken, there is an anticipated breach or a breach which is imminent; the suit may not be entertained. Thus, the suit should not be one that poses hypothetical questions; it must be a life case; a complaint bordering on present or imminent injury.

3.            The Matter must be Justiciable: This is self explanatory. The provisions of Chapter II of the 1999 Constitution (as amended) is relevant in determining the justiciability of an administrative action.

4.            Statute of Limitation: The law here is this, namely that if a time is limited for the doing of something, any action commenced after the limitation period will be incompetent. For instance, the Public Officers Act, 2004 at section 228 stipulates that every action under that section must be commenced within three months, or else the action will be incompetent and unmaintainable.

Grounds  upon  which  Judicial  Review  of  Administrative  Action/Adjudication  may  be Predicated:

Broadly, there are two grounds upon which judicial review of administrative action may be predicated. They are:

1.             The ground of ultra vires, and
2.            The ground of breach of Natural Justice and Fair Hearing.

The ultra vires ground will be involved when you are complaining about administrative action performed by an administrative agency performing ministerial or administrative functions. However, where the administrative agency is performing a judicial function, example administrative adjudication the proper ground to challenge such action will be failure to observe the principle of fair hearing and natural justice. In other words, given that an administrative agency may perform legislative, executive (administrative) and judicial functions, and the administrative capacity can be divided into ministerial or pure administrative; the proper ground to challenge such an action will be want or absence of authority, which is ultra vires. Also, if the administrative agency is performing a legislative function or in its legislative capacity, the proper ground to challenge such an action will still be ultra vires, But, if the administrative agency is acting in its judicial capacity, the ground of challenge will be breach or absence of natural justice and fair hearing. The key distinguishing factor between administrative and judicial power is that whereas the former does not involve exercise of discretion; the latter involves exercise of discretion.

These grounds will now be briefly considered seriatim.

Ultra Vires as a ground for Judicial Review of Administrative Action

Literally, ultra vires means outside or beyond power or outside jurisdiction.
The determination of this gives rise to a critical examination of the relevant section of the statute. By the doctrine of ultra vires any power exercisable by anybody or person or authority must have legal basis to be competent. The legal basis may be the constitution, or a law passed by the National Assembly or any executive order or instrument. The power exercised must be traceable to an enabling power. Accordingly, it is expected that a repository of power must act within the confines and contemplation of the enabling power or instrument; failing which his action will be declared ultra vires and ipso facto unenforceable and ineffective.

The doctrine normally occurs in a variety of ways. These are substantive ultra vires otherwise known as want or excess of jurisdiction, procedural ultra vires otherwise known as defective  procedure,  use  of  power  for  an  improper  purpose  otherwise  known  as  abuse  of discretion or jurisdiction, unreasonableness and no evidence or absence of evidence, justification or reason.

These aspects of the doctrine of ultra vires will now be considered seriatim.

Substantive Ultra Vires (Want or Excess of Jurisdiction).

This aspect of the ultra vires doctrine mandates that an administrative agency or organ must act within the scope, ambit or contemplation of its authority. That is to say, within the province or parameters of his authority, failing which it will be said to have acted without authority or in want of competence or jurisdiction. The want of competence or authority may arise in either of the following ways; where there is no legal backing, when the action is taken by a wrong person or body, when the body authorized to act is improperly constituted or appointed, when action is taken in respect of a wrong person or subject matter and when a wrong order or penalty is imposed by the person or authority or body authorized to act. These will now be explained.

a.        Absence of Legal Backing

Here there is no legal backing based on the constitution or any other law to act. Such act is without power traceable to a particular instrument or enactment. There is a total lack or absence of capacity. There is absence of “warranto. This is a very grave case of ultra vires as is reflected by the following judicial authorities.
In Re Maclean Okoro Kubanja (1974) 1 All NLR 269, the plaintiff was a Chief Magistrate in the public service of mid-west state. He received a letter asking him to accept a transfer from the post to another post in the mid-west Ministry of Justice or consider himself to have been summarily removed from the public service of the state. The plaintiff then applied to the Benin High Court for an order of certiorari to quash the proceedings Public Service Commission. The matter finally went to the Supreme Court which held that certiorari would lie, as it was manifest that the relevant Public Service Commission of the state was acting contrary to the terms of its establishment or in excess of its jurisdiction in not complying with the provisions of the Civil Service Regulations.

Also, in Dr. Sofekun v. Akinyemi & Ors (1980) 5-7 SC 1, where a public servant was dismissed by the Public Service Commission, following in the result of an investigation panel, the Supreme Court found that the dismissal was not done in accordance with the proper law.

b.        Action taken by the wrong person or body

Here, if the enabling act authorizes a particular person to do an act; it is only that person that can delegate the power to do the thing in question unless there is a proper and legal sub- delegation of power. Consistent with this position is the case of Vine v. National Dock Labour Board (1959) AC 588, where disciplinary powers over dock workers were properly delegated by the National Board to a Local Board with the National Boards approval. The Local Board sub- delegated these powers to a disciplinary committee which purported to dismiss Vine. The House of Lords held that the dismissal was void, since the true meaning and intent of the scheme is that these duties shall only be carried out by the carefully balanced board to which they are directly entrusted under the scheme, the Local Board.

c.         When the body, authorized to act is improperly appointed or constituted

A tribunal is improperly constituted or appointed, if in setting it up, the principle of natural justice such as nemo judex in causa sua is contravened. The position is the same where the ground for appointment as stipulated in the enabling Act is not strictly followed.

Thus, in Head of the Federal Military Government v. Dr. Nwachukwu (1976) NMLR 151 an order nisi of prohibition was granted against the ad hoc investigating Committee/Disciplinary panel set up by the Council of the Petroleum Training Institute, to prevent any further consideration by the panel, because the principle of natural justice - nemo judex in causa sua - had been violated.

Here, the appellant had applied for an order of prohibition to prohibit the panel from sitting on the ground that, since the members of the panel were also members of the council, by which it was appointed, and to which it was to report, their appointment placed them in a position of being not only accusers but also judges in their own cause, contrary to the principles of natural Justice.

Also, in Lawson v. Local Authority (1944) 10 WACA 228 the applicant was charged with failing to pay income tax and was convicted. When the matter came to the West African Court of Appeal, his conviction was set aside on the ground that it was the same individual, who in his capacity as administrative officer prosecuted the case that also in his capacity as Magistrate tried the case.

d.        Action taken in respect of a wrong person or subject matter.

This is well illustrated by the decision in White and Collins v. Minister of Health (1939) 2 KB 838, where a local authority with power under the Housing  Act, 1936, to  acquire land compulsorily for housing, provided that it was not part of any “park, garden or pleasure ground” gave an order and the owner of land affected by the order succeeded in invalidating it in the High Court by showing that the land was in fact park land although the land had been confirmed by the Minister of Health after a public inquiry.

Also, in Sule Katagun & Ors. v. Roberts, the Supreme Court affirmed the decision of the Lagos High Court granting a declaration that the plaintiffs retirement by the commission was ultra vires and void because the power the commission purported to have exercised belonged not to it, but to the Minister, who was empowered by section 9(1) of the Pensions Act to retire public servants compulsorily after they had attained the age of forty-five years. Thus, the action must be taken or directed against the person which the law stipulates should be concerned or else, the action will be ultra vires. And when the subject matter is expressly stipulated, the same rule applies.

e.        When a wrong order or penalty is imposed  by the person or authority or body authorized to act

This is in tandem with the case of J. Allen & Co Ltd. v. Provincial Police Officer (1972) 2 ECSLR  (Pt.  18)  390  where  the  court  in  construing  the  Abandoned  Property  (Control  the Management) Law, 1968, came to the conclusion that the legislative or the Military Governor of Benue – Plateau state never intended that the committee should exercise the power of sale over the abandoned property. Consequently, the purported exercise of power was declared ultra vires.

Again, in R. v. Minister of Transport Ex. Parte Upminister Services Ltd. (1934) 1 KB 277, the Minister of Transport was authorized to hear appeals from applications to traffic commissioners for licenses, but was not entitled to deal with revocations of licenses, and when on appeal he purported to direct the future revocation of a license, the courts quashed his decision on the ground that it was ultra vires.

Defective Procedure or Procedural Ultra Vires

This occurs where there is non-compliance with procedure laid down by law in the exercise of the power. It is therefore imperative that the donee of power must scrupulously observe the procedure laid down for the exercise of the power, failing which the power so exercised may be vitiated through the instrumentality of the doctrine of ultra vires. However, for a particular procedural non-compliance to be ipso facto material for procedural ultra vires, such a procedure must be mandatory and imperative.

In some cases, where the requirements are in the nature of conditions precedent to the assumption or exercise of jurisdiction, failure to comply would render all subsequent proceedings ultra vires and void. The courts will also quash the decision of a tribunal for non-compliance with any statutory requirement requiring notice to be given to the parties. Thus, in Rayner v. Stopney Corporation (1911) 2 Ch. 312, a local authoritys failure to comply with a regulation requiring the  service  of  a  notice  before  making  closing  order  in  respect  of  an  ‘unfit  house,  giving particulars of right of appeal was held to render its proceedings void. Finally, the courts will intervene and set aside any decision or order given in violation of a procedural requirement; particularly if its failure to intervene would leave uncorrected a gross injustice or miscarriage of justice.

Use of Power for Improper Purpose or Motive

This arises where power has been exercised in bad faith so as to achieve a purpose other than the one for which the power was conferred: Roberts v. Hopwood (1925) AC 578. There it was held that an administrative action can certainly be challenged on the ground that it was made in bad faith. A case that aptly illustrates this ground of ultra vires is that of Sydney Municipal Council v. Compbell (1925) AC 338, where the council was empowered by statute to acquire land by compulsory purchase in order to make streets or to carryout improvement in or to remodel the city. The council made a compulsory purchase order to acquire land ripe for development not for any of these authorized purposes; but in order to realize later the increase profit in the lands value. The Privy Council held that an injunction should be granted against the council.

Lastly, want of good faith and intention to direct the exercise of the power towards the attainment of the competent goal can be established by showing that the authority deliberately admitted and acted on extraneous matters and irrelevant considerations, or that material and relevant matters and considerations were deliberately excluded or ignored.

Unreasonableness

It is well settled that a public body invested with statutory power must act in good faith and it must act reasonably – per Lord Macnaughten in Mayor of West Minister v. London and North-Western Railways (1905) AC 426. It was on the ground of unreasonableness that the House of Lords quashed the decision of the Borough Council to increase the minimum wage of its employees to an excessive level: Roberts v. Hopewood.

Again, in Associated Provincial Picture Houses Ltd. v. Wednessbury Corporation (1948) 1 KB 223, Lord Greene MR stated that “a decision of a public authority can be off-set, if it is unreasonable in the sense that the courts consider it to be a decision which no reasonable authority would have taken; but not what the court considers to be reasonable ”. The facts were that the plaintiffs who were proprietors of a cinema theatre in Wednessbury, sought to obtain from the English Court of Appeal a declaration that a certain condition imposed by the defendant (the corporation of Wednessbury) on the grant of a license for Sunday performances in their cinema was ultra vires. Their counsel submitted that the imposition was unreasonable and that consequently it was void or ultra vires.

Also, in Adeyemi Durojaiye v. Commissioner, Ministry of Works, Attorney General Lagos State & Ors (1976) 6 CCHCJ, 1327, the plaintiff sought for a declaration that the letter withdrawing the approval of his building plan, while he had commenced building on the land, was null and void. He alleged that the third defendant was unduly influenced by a third party in withdrawing the approval, because the latter had interest in the land on which the plaintiff had already commenced building. It was held that such withdrawing of the building plan was ineffective for not being reasonably exercised.

Furthermore, in Ibadan City Council v. Odukale (1972) All NLR (Pt. 2) 319; (1973) 3 UILR 490, the respondent, who was the plaintiff in the lower court, complied with the relevant bye law, but was refused permit by the chairman of the defendant council. The reason for his refusal was that he wanted the respondent, who belonged to a different political party, to change to the Nigerian National Democratic Party, which was the party in control of the council. The court held that, in the absence of any evidence to the contrary, it would be unreasonable to infer that the conditions stipulated for the grant of permit by the council included becoming a member of or declaring for the political party in control of the council.

No Evidence

This ground is based on the authority of the dictum of Uwaifo JSC, in Igbe v. Governor of Bendel State and Anor, which relied on the opinion of Lord Denning in Ashbridge Investment Ltd. v. Minister of Housing and Local Government (1965) 1 WLR 1320, where no evidence was listed as a separate ground for challenging the Ministers decision that a certain building was a house, his Lordship stating that it seems that the court can interfere with the Ministers decisions if he has acted on no evidence or if he has come to a conclusion t o which on the evidence he could not reasonably come or if he has given a wrong interpretation to the words of the statute, or if his taken into account what he ought not to have taken into account or vice versal or has otherwise gone wrong in law.
Breach of the Doctrine of Natural Justice as a ground for Judicial Review of Administrative Action

The legal conception of natural justice presupposes that natural justice connotes two things; namely, the principle of audi altarem partem and nemo judex in causa sua. Whereas the former means that both parties must be heard, the latter means that a person should not be a judge in his own case/cause. This principle is constitutionally recognized in section 36(1) of the 1999 CFRN which grants a citizen entitlement to fair hearing.  By that provision, natural justice summarily means fair hearing. The courts always insist on the application of the rule of natural justice only to acts and decisions classified by them to be judicial or quasi judicial as well as those which infringe upon peoples rights recognized by law; not to acts or decisions classified as administrative or which affects privileges or licenses.

Generally, provided the administrator strictly observes the terms of a power conferred on it by statute the courts cannot question or interfere with an exercise of that statutory power. But, since, the administrator is not legally trained and does not observe the rules of court; he is expected to act fairly by observing the rules of natural justice. That tribunals must act fairly in the performance of their functions is illustrated by the case of Board of Education v. Rice where Lord Melbourne opined that “the Board of Education must act in good faith in listening fairly to both sides … always giving a fair opportunity to those who are parties in the controversy to correct or contradict anything prejudicial to their view.

Audi Altarem Paterm

Section 36(2)(a) of 1999 CFRN provides for this arm of natural justice. The principle, involves a consideration of the following issues:

(a)       Notice

Notice must be adequate and reasonable. In Cooper v. Wardsworth Board of Works, the court in holding that the board ought to have given notice to the plaintiff before subjecting him to such a fantastic loss opined that, he who shall decide anything, without the other side having been heard, although he may have said what is right, will not have done what is right. Also in Ridge v. Baldwin Lord Ried opined that an officer cannot lawfully be dismissed without first telling him what is alleged against him and hearing his defence and explanation.
(b)       Time

In Local Government Board v. Alidge, the court opined inter alia, that when the duty of deciding an appeal is imposed, those whose duty it is to decide must act judicially and they must give to each of the parties the opportunity of adequately presenting the case made. Moreover, section 36(6)(b) of the 1999 Constitution provides that every person who is charged with a criminal offence shall be entitled to be given adequate time and facilities for the preparation of his defence. The reason for this may be found in section 36(5) of the same constitution which provides for the presumption of innocence.

(c)       Adjournment

Where necessary, adjournment is granted to enable a party to present his case adequately. But, tribunals cannot grant adjournments on frivolous grounds in order not to delay proceedings: Daniel  Aladabe  v.  Account Disciplinary Tribunal.  In R.  v. Medical  Appeal  Tribunal Midland Region, it was held that refusal to grant an adjournment to allow the production of a consultant doctors report was an error of law and contrary to natural justice.

(d)       Legal representation

This depends on the facts and circumstances of each case. In Pett v. Greyhound, Racing Association, the court held that a trainee who was under a serious charge of dragging a dog about to compete for a race, was entitled to be represented by counsel or solicitor when a tribunal was considering the matter relating to his reputation or livelihood since, if found guilty, he may be suspended or have his training license withdrawn. In R. v. Secretary and State House Dept Ex parte Tarrant, the court laid down the following considerations for the determination of the need for legal representation:

1)        the nature of the charge or complaint and the potential penalty;
2)        The capacity of the parties to present their cases;
3)        whether any point of law is likely to arise;
4)        procedural difficulties which parties may encounter that may affect the proper presentation of their cases such as the need for cross examination;
5)        the need for speed in taking decisions; and,
6)        the need for fairness as between the parties and authority.

(e)       The Nature of hearing

The rule does not guarantee oral hearing once the parties are placed on the same footing. In Local Government Board v. Arlidge – it was held that an opportunity to be heard need not be oral unless oral hearing is expressly prescribed. Also the rule does not mean that a person must have his right determined by the person who heard the evidence at first instance.  Lastly, on authority of Miller v. Minster of Housing and Local Government, Lord Denning opined that hearsay is clearly admissible before a tribunal; but in admitting it, the tribunal must observe the rules of national justice.

(f)       Cross Examination

This depends on the facts and circumstances of each case. In R.v. Commission for Racial Equality Ex-parte Quarte & Rotton, the court held that where the hearing is of a criminal nature as opposed to merely administrative, opportunity to cross-examine ought to be allowed.

Based on the foregoing, it can be said that natural justice is a doctrine of variable content. But, three features standout (a) the right to be heard by an unbiased tribunal (b) the right to have notice of charges of misconduct (c) the right to be heard in answer to those charges.

Take Notice that the court will always hold the strict compliance with audi altarem paterm rue in the following instances (1) where there is an existing dispute to be decided (2) when a persons livelihood is at stake (3) where the decision will deprive a person of office or status and (d) where property interests is at stake.

Criminal Element in Audi Altarem Paterm

The law is that where an allegation of crime is involved, it is the court set up under the constitution that has jurisdiction:  section 36(4) of the 1999 Constitution.  By  that  section whenever any person is charged with a criminal offence he shall unless the charge is withdrawn, be entitled to fair hearing in public within a reasonable time by a Court or tribunal. An attempt to equate administrative tribunal with that mentioned above is always rejected by the court.

In Adesoyi, Fagade v. Unife – it was canvassed that the student disciplinary board that recommended the dismissal of the applicant for assault and arson was a tribunal for the purpose of section 36(4) supra. The court rejected this argument and held that „tribunal for the purpose of the section can only mean a tribunal established by law for the purpose of trying a particular offence. Thus, where an administrative matter has a criminal content, such an administrative matter becomes a criminal matter only to be taken to court for resolution before the administrative can legally assume jurisdiction: Garba v. UNIMED.

Nemo Judex in Causa-Sua

Literally, this means that, a person shall not be a judge in his own cause; in other words, anyone who is trying the interest of another party should be disinterested in such a matter. The rule of nemo judex in causa sua is to the effect that no man can be plaintiff or prosecutor in any action and at the same time sit in judgment to decide in that particular case: United Dairies v. Bath Justices, per Atkin J.

Thus, where a party has an interest in a matter in which he is to preside, he should refrain from taking part in the decision otherwise, he may be deemed to have been biased. The maxim applies in both administrative and judicial matters; it is the rule against interest and bias. Additionally, there are other aspects of interests or bias which depend upon the test of “a real likelihood of bias” as enunciated by Blackburn J. in R. v. Cambridge Justices, Ex. Parte Pearce (1955) 1 B 41, where he opined that “to disqualify a person from acting in a judicial or quasi-judicial capacity upon the ground of interest (other than pecuniary or proprietary) in a matter of the proceeding, a real likelihood of bias must be shown”.

Being, a party to a matter does not necessarily mean being a plaintiff or defendant, but one may be disqualified or held to be bias because of the role he played in ad judication. Example a person who acts as a prosecutor and also takes part in taking the decision will have the decision open to nullity. For instance, in Alakija v. Medical Disciplinary Committee (1959) 4 FSC 38 the inquiry was conducted in a manner contrary to principles of Natural Justice in that the Registrar, who was in fact the prosecutor, took part in the committees deliberations. This was also the case in Gani Fawehimi v. Legal Practitioners Disciplinary Committee (1982) 3 LR 319.

Furthermore, the most important thing to note when this doctrine is in issue is to bear in mind the statement of Lord Hewart in R. v. Sussex, Jusitces, Ex Parte McCARTHY, where he stated that “it is not enough to say that justice is done, it should manifestly and undoubtedly be seen to be done”.

Similarly, bribery and corruption and pecuniary or proprietary interest in the subject matter of controversy would disqualify a person. Personal relationship with the parties to the case will also nullify the decision. This relationship may be personal as with friendship, affinity or consanguinity, professional or vocational, employer/employee or even political. In all this the court presumes that there may be likelihoods of bias. Therefore such adjudicator ought to refrain from taking part in the adjudication.

The courts have tried to make distinction between domestic tribunal and those tribunal with judicial trapping in adjudication of natural justice rule. In the latter, the courts have insisted on strict application of the doctrine. Opinions are diverse on the former. However, there is the agreement that whether a tribunal is domestic or judicial, those who are to take decisions must act fairly. REID J. was in support of the dictum of Lord Elborne in Board of Education v. Rice supra, when he opined that Natural Justice requires that the procedure before any tribunal which is acting judicially shall be fair in all circumstances.

Again, it is not enough for a person to hold that he is not biased by virtue of his position, he can be disqualified if a third party or a reasonable man could view that by virtue of his position, he is likely to be biased: Kokoye v. CBN.
Exceptions to the nemo judex in causa sua principle

a.        Necessity: If by law a person is the only competent person to judge or decide a matter, he should  not  be  disqualified  nor  should  he  abandon  his  responsibility  for  the  fear  of offending against the rule of bias. For instance, it is popularly thought that if a lawyer, a member of the legal profession is tried and either convicted or acquitted by a judge of the High Court or other superior courts, such an acquittal or conviction should be set aside because  both  the  lawyer  and  the  judge  who  handled  his  case  belong  to  the  same profession, thus raising the issue of real likelihood of bias. This should not be so because in any case where a lawyer commits an indictable offence, he should be tried by a judge learned in law as a matter of necessity and the outcome of such trial should not be set aside on grounds of reasonable suspicion of bias;

b.        Statutory Exclusion of the Rule:  An act of the National Assembly can exclude the operation of the rule by authorizing a person to hear and determine a case in which he is held personally interested. In State v. Oba Ogunleye, it was held that the Nemo Judex rule can be overridden by statute and necessity.

c.         Waiver: A party in a suit might waive this fundamental right of natural justice in the course of proceedings either by consent or lashes and acquiescence.
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