Judicial Review

• Pages: 1341-1376

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JUDICIAL REVIEW.

APPLICATION FOR JUDICIAL REVIEW.

Cases appropriate for application for judicial review. “What are the cases that are

appropriate for application for judicial review? The answer is in Order 47 rule 1 of the Federal

High Court (Civil Procedure) Rules 2000 (hereinafter called the High Court Rules or the

Rules), which provides as follows: (1) An application for ... (a) an order of mandamus,

prohibition or certiorari; or (b) 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 provision of this order. It is clear from the above provisions that the main

cases where a party can or may apply for judicial review are four, viz:- (a) Where he wants an

order for mandamus, (b) Prohibition, or (c) Certiorarior (d) An injunction restraining a person

from acting in anyoffice in which he is not entitled to act.The above are the primary cases

where an applicant may adopt the process of judicial review in initiating an action in the Court

of law - the High Court in particular. It should be noted that under the above rule, an application

for injunction by way of judicial review can only be made where it is intended to restrain a

person from acting in any office in which he is not entitled to act. It is therefore clear that an

injunction for any other purpose cannot stand on its own by way of judicial review since Order

47(1)(b) has limited strictly the scope or nature of an injunction that can be applied for by way

of judicial review to that which seeks to restrain a person from acting in an office in which he

is not entitled to act. It is an exception to the general rule that an injunction cannot be claimed

as a substantive claim in an action without tying same to a main claim, usually by way of

declaration, damages etc. The order of injunction talked about supra is in the nature of the

former order ofquo warranto.” – PerOnnoghen, J.S.C., in Ohakim v. Agbaso Suit No. S.C.

3/2010; (2010) 19 N.W.L.R. (Pt. 1226) 172 at 226.

Conditions precedent to application of judicial review. “Order 34 of the Federal High Court

Rules which provides thus: “1(1) An application for (a) An order of mandamus, prohibition or

certiorari; or 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

madeex parteto the Judge and shall be support by.” – Per Peter-Odili, J.S.C., in Yar’Adua v.

Yandoma Suit No. S.C. 4/2014; (2015) 4 N.W.L.R. (Pt. 1448) 123 at 196.

Duty on party seeking to set aside proceedings to bring same before the Court. (1) “In the

instant case, for the learned trial Judge to make a determination that the order ought not to have

been madeex-parte or that it was made based on a misrepresentation of facts, the record of

proceedings showing the said misrepresentation must be produced. What were the facts placed

before the Upper Area Court upon which it exercised its discretion to grant the orderex-parte?

Was the application oral or in writing? It is contended that the appellants were not served with

the substantive motion on notice after the order was made. The record of proceedings was not

produced to show what transpired on the subsequent adjourned date after the order was made.

It is in this regard that the decision of the Supreme Court in:Zamani Lekwot v. Judicial

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Tribunal (supra)at 35 E-F is apposite. In that case it was held perBelgore, J.S.C.: “No Court

in this country can set aside, nullify or quash any proceedings or decisions not before it. Courts

rely on concrete facts before them and not on guess work ....” It was held in:Ezenwav.Bestway

Electrical Manufacturing Co. Ltd.(1999) 8N.W.L.R. (Pt. 613) 61at 82-83 H-B that

particularly where the proceedings emanate from a native Court, the Courts are enjoined to

read the entire proceedings painstakingly and carefully.” –PerKekere-Ekun, J.C.A., in

Bamaiyi v. Bamaiyi Suit No. CA/K/269/01; (2005) 15 N.W.L.R. (Pt. 948) 334 at 359. (2) “In

the instant appeal, the failure of the appellants as applicants to produce the record of

proceedings before the High Court in respect of the application forcertiorariis fatal to their

application going by the decision of the Supreme Court of Nigeria inZamani

Lekwotv.Judicial Tribunal & Ors. (1997) 8 N.W.L.R. (Pt. 515) 22 relied upon by the learned

trial Judge in his ruling, the Supreme Court perBelgore, J.S.C., held, “No Court in this country

can set aside, nullify or quash any proceedings or decisions not before it. Courts rely on

concrete facts before them and not on guess work ...”– PerBa’aba, J.C.A., in Bamaiyi v.

Bamaiyi Suit No. CA/K/269/01; (2005) 15 N.W.L.R. (Pt. 948) 334 at 361. (3) “In the case of

Lekwot v. Judicial Tribunal on Civil and Communal Disturbance (supra),the apex Court Per

Belgore, J.S.C. at page 35 held thus: “...This application is so flawedabinitiothat I find it

completely unjust to call this Court to adjudicate on it.The judgment of the Tribunal

complained against allegedly delivered on 2nd February, 1992 and theproceedings of the

Tribunal of 4th December, 1992 are unfortunately mere guess-work as they are not exhibited

with this application before us... No Court in this country can set aside, nullify or quash any

proceedings or decisions not before it. Courts rely on concrete facts before them and not on

guess-work and to ask any Court to make a decision on guess-work and matters not exhibited

before it is unjust and can, depending on circumstance of the case, amount to abuse of Court

process...” – PerAbdullahi, J.C.A., in Towoju v. Gov., Kwara State Suit No. CA/IL/19/2004;

(2005) 18 N.W.L.R. (Pt. 957) 324 at 350 - 351. (4) “It is now settled with a note of finality that

guess work has no place in the adjudicating process, hence where and whenever a party seeks

or set in motion the machinery of justice to quash, nullify or set aside any proceedings or

decisions (report inclusive) such a person is under a legal duty to produce or exhibit the report

or proceedings before the Court. See the case ofLekwotv.Judicial Tribunal on Civil and

Communal Disturbances in Kaduna State (supra). The appellants, in their supporting affidavit

deposed in paragraph 17 thus: “17. That the summary of the report of the consortium of

external auditors engaged by Kwara State Government to audit the account of Local

Governments is published at page 7 of Nigeria Herald of 10th March, 2004. Copy of relevant

page is attached herewith as exhibit C.” – PerAbdullahi, J.C.A., in Towoju v. Gov., Kwara

State Suit No. CA/IL/19/2004; (2005) 18 N.W.L.R. (Pt. 957) 324 at 350.

How application for judicial review can be made. “Under Order 43 rule 3(1) & (2) of the

Rules, an application for judicial review can only be made by leave of Court obtained upon an

ex-parte application.” – Per Kekere-Ekun, J.C.A., in Ejorkele v. Nwafor Suit No.

CA/PH/184/2005; (2008) 15 N.W.L.R. (Pt. 1110) 418 at 436 - 437.

Implication and treatment of claim for mandatory injunction in an application for

judicial review without claim for mandamus. “A claim for an order of mandatory injunction

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in an application for judicial review in which there is no claim formandamus amounts, in law,

to a claim for an order of mandamus and must comply with all the pre-conditions necessary for

the invocation of the jurisdiction of the Court for the order ofmandamus including a prior

request for the performance of the duty sought to be enforced by the order ofmandamus or

mandatory injunction, and that failure to do so will render the initiation of the proceeding and

the competence of the Court to entertain same, fundamentally defective.” –PerOnnoghen,

J.S.C., in Ohakim v. Agbaso Suit No. S.C. 3/2010; (2010) 19 N.W.L.R. (Pt. 1226) 172 at 230.

Meaning, foundation and mechanism of judicial review. “Judicial review or call it, judicial

control primarily and practically means review and it is founded on a fundamental principle

inherent throughout the legal system, that powers can be validly exercised only within their

true limits. Indeed, it is a fundamental mechanism for keeping public authorities within due

bounds and for upholding the rule of law. Instead of substituting its own decision for that of

some other body, as happens when on appeal the Court on “review” is concerned only with the

question whether the act or order under attack should be allowed to stand or not. The Obio

Customary Court, an inferior Court for that matter had completed its judicial function. The

High Court, a superior Courtof record having a duty of supervising the work of inferior Courts,

was invited here to review the judgment of the inferior Courts. Given that all the proper

procedure has been followed, as in the instant case, a superior Court which the High Court is,

has no discretion in the matter; it must perform its duty.” – PerAderemi, J.C.A., in Amadi v.

Acho Suit No. CA/PH/144/1994; (2005) 12 N.W.L.R. (Pt. 939) 386 at 402.

Nature of application for judicial review. (1) “An application for judicial review, being a

special procedure, is only available against a public body in a public law matter and the body

against whom the reliefs, whether principal or alternative can be sought, must be a public body

whose activities can be controlled by judicial review. That is not the case here, since the

alternative claims are the enforcement of perceived private law rights by the appellants against

the 2nd respondent which is a private entity. Therefore, the appellants have not established a

legal right upon which the orders sought may be granted. The cases ofChukwumah v. Shell

Petroleum Development Corporation(1993) 4N.W.L.R. (Pt. 289) 512;Judicial Service

Committee v. Omo(1990) 6N.W.L.R. (Pt. 157) 407.” – PerPeter-Odili, J.S.C., in Ayida v.

Town Planning AuthoritySuit No. S.C. 110/2004; (2013) 10 N.W.L.R. (Pt. 1362) 226 at 273.

(2) “Order 37 of the High Court Rules, Cap. 66., Laws of Anambra State, 1988 provides for

“Application for Judicial Review.” The main feature of this procedure is that a person

aggrieved by any administrative act or omission, judicial or quasi-judicial proceedings of an

inferior Court or Tribunal and wants to challenge it in Court may apply to the High Court for

any of the prerogative orders, including, orders ofcertiorari. The application could only be

validly brought six months after the date of the judgment, order, conviction or other

proceedings sought to be quashed– (Italics mine).” – Per Tsamiya, J.C.A., in Anaekwa v.

Umeano Suit No. CA/E/243/2006; (2009) 5 N.W.L.R. (Pt. 1135) 419 at 427 - 428. (3) “Order

43 of the High Court Rules provides for “Application for Judicial Review”, which is a

procedure where a person aggrieved by any administrative act or omission or judicial or quasi-

judicial proceedings of an inferior Court or Tribunal may apply to theHigh Court for any of

the prerogative orders of mandamus, prohibition or certiorarior a declaration, or an injunction