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  Ultra Vires as a Ground for Judicial Review of Admin Action

Ultra Vires as a Ground for Judicial Review of Admin Action



Literally, ultra vires means outside power or outside jurisdiction. The determination of this gives rise to a critically examination of the relevant section of the statute. The doctrine of ultra vires normally occurs in a variety of ways. These include the following.

Constitutional Ultra Vires

This shows the supremacy of the constitution in countries having written constitution. It also shows the inconsistency rule. Under this aspect of the doctrine, it may also be held that the power conferred on an authority is too much or in excess of the constitutional pro visions. This was the case in Doherty v. Balewa – where the court held that the power conferred on the Prime Minister by Parliament through the Commission and Tribunals of Inquiry Act 1961 was in excess of the constitution, since the law permitted the setting up of an inquiry throughout the Federation when the contemplation of the constitution was the Federal Capital Territory, Lagos.

Also, the court may hold that the power was unlawfully given or unlawfully exercised. In Williams v. Majekodunmi  –  the  court  agreed  that  under  emergency the  administrator  was lawfully empowered  to  act  under  the  Emergency Power  Act  1961; the  order to  restrict  the plaintiff’s movement was declared ultra vires since there was no justification for it. This principle accords with the hierarchy of laws. Thus, power to be exercised must be within the contemplation of the constitution.

Substantive Ultra Vires

This occurs when an act performed or powers exercised by the administrative agent are in excess of the powers conferred by statute or violates a constitutional or statutory provision. It can also be expressed in terms of want or excess of jurisdiction (No legal backing, action taken by the wrong person or body, improper appointment or constitution of the body authorized to act, action taken in respect of a wrong person or subject-matter and imposition of a wrong order or penalty by the person or body authorized to act).

Take Notice that a municipal corporation possess and exercises the following powers:

(a)       Those granted in express words;
(b)       those necessary or fairly implied or incidental to  the powers   expressly  granted;  and   
(c)       those essential  to  the accomplishment of the declared objects and purposes of the corporation not simply convenient but indispensable.

Inconsistency with Statute

An administrative act is ultra vires here to the extent that it conflicts with or contradicts the parent statute or the constitution. In Powell v. Hay – it was held that a byelaw cannot permit what the statute expressly forbids and vice versal, though it can forbid what would otherwise be lawful at common law. Therefore, where the enabling statute requires a power to be exercise in a certain form, the neglect of that form renders that exercise of power ultra vires.

Thus, in Jackson Standfield & Sons v. Butterworth – the Court of Appeal held that oral permission from a borough surveyor to build in the excess of the amount specified in the license was invalid since a written license was contemplated by the Act.

Procedural Ultra Vires

The court will quash the decision of tribunals for non-compliance with statutory procedure that is mandatory. Failure to observe procedural requirements leads to objections and criticisms. In Agricultural Horticultural and Forestry Industrial Training Board v. Aylesbury Mushrooms Ltd., the Industrial Training Act, 1964, at section 1(4) required the Minister before making an order to consult any organization appearing to him to  be a representative of the substantial number of employees engaged in the activities concerned. Failure to consult the body representing the mushroom growers association made the order invalid.

Again, in Chairman Board of Inland Revenue v. Joseph Rezcallah & Sons Ltd. – it was held that the assessment under which the claim is brought where not made in accordance with the law, the claim therefore fails. In Rayner v. Stopney Corporation, a local authority’s failure to comply with a regulation requiring the service of notice before making an order in respect of an ‘unfit house’ was held a render its proceedings void.

Error of Law on the Face of the Record

This could manifest where the authority has refused a make use of some relevant material in reaching its decision or where the authority has taken cognizance of some important matters which influenced its decisions or where there has been a procedural error (such breach of natural justice & or unlawful delegation). Such error must be clear and obvious from the record of proceedings of the inferior agency.  It must be  readily  ascertainable  by  the  Superior  Court exercising supervisory powers. Unless the error is manifest on the face of the record or award, the decision cannot be challenged on proceedings for an order of certiorari. The record here includes the words used in giving oral decision and the formal order as well as all those documents which appear therefrom to be the basis of the decision. This review is for judicial acts and not administration or legislative acts.

Lastly, failure to give reasons will not itself justify the quashing of a decision; unless such failure can properly give rise to an inference that there has been an error of law. Thus, in Pad Field v. Minister of Agriculture, Fisheries and Food, it was held that the court was not prepared to infer that there were no reasons or bad reasons, just because none were stated by the local authority.

Failure to Perform a duty

This is a ground on which a writ of mandamus can be granted to an aggrieve party. In R. v. Greater London Council Ex parte Blackburn, the failure of the Commissioner of Police or his representatives to stop illegal gamming was held to be ultra vires. The agency cannot bind itself to exercise its discretion in a particular manner. Discretion must be exercised freely with no prior restraints imposed by the agency itself.

Abuse of Powers

The courts will intervene not only to prevent power being exceeded but to prevent their being abused. This is control of improper exercise of power. Exercise of power for an improper purpose is not allowed, even if the act is prima facie lawful. Exercise of power must take into account all the relevant considerations.

Improper Motive or Bad Faith

An exercise of power for an improper purpose is invalid. But, if the exercise fulfills the purpose, then extraneous motive is immaterial. In Sydney Municipal Council v. Campbell – Council was empowered by statute to acquire land by compulsory purchase in order to make streets or to carry out improvement in or to remodel the city. The council made a compulsory purchase order to acquire land  not  for any of the above purpose;  but  for the  realization of increased profit in the land’s value. The Privy Council held that an injunction should be granted against the council.

Lastly,  if  discretionary  power  is  conferred  without  reference  to  purpose,  it  must  be exercised in good faith and in accordance with such implied purpose as the court will attribute to the intendment of the legislature: R. v. Bansley Metro Borough Council Ex Parte Hook. Estoppel.

This is technically a rule whereby a party is precluded from denying the existence of some state of facts which he had previously asserted and on which the other party has relied to his detriment. It may be words, conduct, writing and made negligently, carelessly, fraudulently or innocently. If the statement is of an existing fact, the principle may be applied so as to prevent a public authority from exercising a discretion vested in them by statute or under the prerogative. The case of Robertson v. Minister of Pension is illustrative of the point.

Finality Clause


Declaration by statute that the decision of a tribunal is final does exclude judicial review by means of certiorari. The word final only means without appeal. It makes the decision final on the facts not law: Re Gilmore’s Application per Denning L.J.
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05:06:00  Administrative Adjudication, Administrative Law, Doherty v. Balewa, Judicial Review, Law Lecture Series, lectures, Ultra Vires, Williams v. Majekodunmi

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