unilaglss.files.wordpress.com€¦ · Web viewJUSTICE OPUTA CHAMBERS NOTE SERIES. ADMINISTRATIVE LAW II. FROM THE ACADEMIC SECRETARIAT. The Justice Oputa Chambers is one of the

JUSTICE OPUTA CHAMBERS NOTE SERIES

ADMINISTRATIVE LAW II

1 COMPILED BY ACHILIKE CHIOMA, 300 LEVEL STUDENT OF THE FACULTY OF LAW, UNIVERSITY OF LAGOS

FROM THE ACADEMIC SECRETARIAT The Justice Oputa Chambers is one of the very few associations in the faculty that places premium importance on the academic welfare of its members. In line with our mandate, we are happy to introduce the Oputa Note Series which is designed to help achieve better understanding of the topics treated. We cannot pretend that this note is all encompassing and as such should be studied independently of other materials. This document is intended as an aide in studying for the exams, students should consult other academic materials. Many thanks to my good friend Achilike Chioma for her dedication and selflessness throughout the compilation of this work.

I am also grateful to my Assistant Academic Secretary, Ogalu Bolaji Jeffrey

In other news, Study Groups were created last semester. The importance of group study cannot be over emphasized. Study Groups are better Self Study because they are essential for effective learning, knowledge is shared. It allows for Comparative Learning. Furthermore, through their cooperative but also competitive nature, study groups promote critical thinking and creativity as there are new questions and explanations within discussion and debate. Finally, when you are alone, the temptation to procrastinate is incomparably higher than when in an interactive environment. Interested members should meet any of the executives.

APALARA RAHMAN

ACADEMIC SECRETARY

08175478796


TABLE OF CONTENTS1.1 ADMINISTRATIVE ADJUDICATION.............................................31.2 CONTROL OF ADMINISTRATIVE ADJUDICATION...........................61.3 JUSTIFICATION OF ADMINISTRATIVE ADJUDICATION...................71.4 CRITICISMS OF ADMINISTRATIVE ADJUDICATION........................81.5 CONSTITUTIONAL REQUIREMENT OF FAIR HEARING IN ADMINISTRATIVE ADJUDICATION....................................................92.0 EXHAUSTION AND RIPENESS..................................................112.1 EXHAUSTION..........................................................................112.2 RIPENESS..............................................................................123.0 LOCUS STANDI.......................................................................133.1 LOCUS STANDI AND ENFORCEMENT OF ADMINISTRATIVE REMEDIES...................................................................................164.0 PRE-ACTION NOTICE............................................................175.0 JUDICIAL REMEDIES FOR ADMINISTRATIVE ACTIONS.................195.1 PREROGATIVE ORDERS...........................................................205.2 CERTIORARI...........................................................................205.3 PROHIBITION.........................................................................225.4 MANDAMUS...........................................................................235.5 WRIT OF HABAES CORPUS......................................................245.6 INJUNCTION...........................................................................255.7 DECLARATION........................................................................266.0 COMMON LAW REMEDY- DAMAGES.........................................277.0 PUBLIC OFFICERS PROTECTION ACT........................................277.1 WHO IS A PUBLIC OFFICER......................................................287.2 PROTECTION UNDER THE ACT.................................................297.3 EXCEPTIONS TO PROTECTION UNDER THE ACT.........................307.4 HARDSHIP OF ACT AND NEED FOR REFORM.............................31


1.1 ADMINISTRATIVE ADJUDICATION

First and foremost, the doctrine of Separation of power should be kept in mind as being existent in Nigeria. However, in doing this, one ought to also bear in mind that in Nigeria, there is no rigid application of the doctrine in the constitutional framework. Thus, even though the constitution provides for a classification of powers into the Legislature, Executive and the Judiciary, there are still extended to several bodies in the government. Having said this, the judicial powers, in Nigeria, are traditional vested in the judicial arm of government i.e. the court, subject to section 6 of the 1999 CFRN. These powers are also extended, subject to section 36¸to bodies other than the regular courts to adjudicate on matters affecting the rights of citizens. On this note, it is safe to say that just as legislative powers are delegated to administrative bodies, which are known as delegated legislation, the extension of judicial powers to administrative bodies are known as Administrative Adjudication.

Administrative adjudication is the process by which administrative or executive bodies are involved in making determinations of the civil rights and liabilities of parties appearing before it. It also involves the process whereby administrative or executive bodies interpret laws e.g. issuing of licence. This powers are, however, not obtainable at large i.e. they are not absolute but subject to limitations. Administrative adjudication is subject to the judicial review which is an oversight function of the judicial arm of government.

Every administrative adjudicatory body owes their powers to particular statutes i.e. enabling statutes, specifically enacted for the body. This same law determines the body’s nature and scope of powers, as well as procedure and the substance of powers usable by these bodies. Subsequently, it can be said that the nature and scope of powers determine the classification in which a body will fall under. It should, however, be noted that there may be overlapping in the classification. Administrative adjudication can be broadly classified into five categories and they include: Investigative panels; Statutory tribunals; Military tribunals; Domestic or autonomous bodies and; Miscellaneous bodies.

INVESTIGATIVE PANEL: This panel is usually appointed by government pursuant to the Tribunals and Inquiries Act, or its equivalent laws in the State, or other specific statute enacted for that purpose. The president may, whenever he deems fit or desirable, constitute one or more persons by instrument under his hand, into a tribunal with authority to inquire into the conduct or affairs of any public officer or any matter in respect of which in his opinion an inquiry would be for the public interest. Though not the same as a court, it is headed by a judge. This body is set up to look into the occurrence of any event or occasion, determine the causes, the parties responsible for the occurrence and report to the appropriate authority. It can also be used to investigate suspected or alleged impropriety or negligence of public functionaries.


This class of administrative adjudicatory body includes the bodies which the word “inquiry” is used in setting up the panel. It should at this point be noted that, the powers of these bodies are restricted to fact finding and are not required to make determination upon facts, as seen in the case of Aiyetan v NIFOR, as well as Akintemi v Onwumenchile. It should also be noted, as was done in the case of Togun v Oputa, that the federal government is restricted to setting up of inquiry bodies in FCT.

STATUTORY TRIBUNALS: Statutory tribunals are those tribunals usually set up from time to time as the need arises, under relevant or specific statutes enacted for that purpose by the federal or state government. These bodies are set up to make findings or facts after listening to presentations by contesting parties. The function of this body is similar to that of a court of law because they are vested with judicial or quasi- judicial powers. It is common for statutory bodies or government owned agencies to be vested with statutory powers over their workers. For example, Section 17 of the University of Lagos Act empowers it to impose disciplinary measures on its workers. Statutory bodies are featured with the following:

a. Parties must appear before them;

b. There must be a subject matter that is in dispute;

c. The panel is expected to listen to presentations of the parties either orally or in writing;

d. They listen to arguments on point of law; and

e. They can make final determinations based on available evidence before it.

Statutory tribunals are established for specific purposes. For instance, the Rent Tribunals of Lagos State is established to look into matters concerning rent. It should be noted that a statutory tribunal must be set up pursuant to a particular law or statute and in the absence of any law providing for its procedure, they exercise broad discretionary powers to determine its own procedures. It is also noteworthy to state here that Statutory tribunals are expected to comply with the rules of natural justice; audi altarem partem and nemo judex in causa sua, as seen in the case of Olaoye v Chairman Medical and Dental Practitioners Disciplinary Committee as well as that of Olatunbosun v NISER. Examples of these tribunals are the Liquor licensing Board established under section 6 of the Liquor Act (Lagos), Armed Robbers and Firearms Tribunal, Election Tribunals etc.

MILITARY TRIBUNALS: Military tribunal is the name given to the boards of military officers set up during periods of military rule. It was expressed by an author, Onyebuchi Uwakah that a military tribunal generally has no origin than an order of the general, and has no definite code by which it must be governed. The observation of Sir James Fitzjames accurately describes military tribunals as merely committees formed for the purpose of carrying into execution the discretionary power assumed by the government. They are, however, creations of decrees and edicts. Military tribunal is a distinct classification because the decrees or edicts creating them, have clauses ousting the jurisdiction of the court. Thus the jurisdiction cannot be subjected to review by a court of law.


However, where the provision of the decree or edict is capable of two interpretations, the court will lean in favour of the provision allowing it to review such proceedings. Also, the tribunals are always comprised of military officers of the equivalent of colonel and above, and not made up of judges or lawyers. Furthermore, the procedure adopted does not fall within the rules of justice as the requirements cannot be said to be observed in any satisfactory manner. For example, the procedure includes the conduct of hearing in private and not public hearing as done in the courts of law. Finally, the issues of Fundamental Human Rights are not entertained in these tribunals. However, while the decrees of the Federal Military Government may over-ride other municipal laws, they cannot oust the jurisdiction of the court whenever properly called upon to do so in relation to matters pertaining to human rights under the African Charter on Human and People’s Rights, as seen in the case of Gani Fawehinmi v Abacha.

DOMESTIC OR AUTONOMOUS: These are autonomous tribunals usually set up by chartered professional bodies, which are empowered by the statutes chartering them to establish such adjudicatory bodies to meet their domestic regulatory needs within such profession such as settling disputes among members and imposing disciplinary measures respectively, as seen in the case of LPDC v Gani Fawehinmi. The law specifically regulates some professional bodies and associations especially with regards to membership, discipline and control of members practicing such profession. Examples of this class of tribunals include medical and dentist disciplinary tribunal, Legal Practitioners Disciplinary committee, Registered Engineers Disciplinary Committee and so on. It should, however, be noted that domestic bodies also includes the bodies regulating issues such as exam, as seen in the case of Chinelo Mbamalu v WAEC. Such bodies must also conform with the principles of Natural justice, as seen in the case of LPDC v Gani Fawehinmi as well as the case of Medical and Dental Practitioners Disciplinary Committee v Olaoye.

MISCELLANEOUS/ OTHER BODIES: This category of adjudicatory bodies include all other administrative authorities which make policies, determinations or decisions which affect people one way or the other. Their functions may be mainly administrative or executive in nature, but they also exercise judicial or quasi-judicial powers in the discharge of their functions e.g. enforcing civil service rules i.e. issuing query, as seen in the case of Oyeyemi v Commissioner for Local Government, Kwara State.

In general, tribunals are not bound by the rules of evidence observed in courts and could not reach a decision simply and speedily if they were. However, minimum standards of evidence and proof must be observed by tribunals if justice is to be done. It is noteworthy to state at this point that problems facing these bodies remain over lack of standard rights, like right of appeal, and procedures. In many instances, they make important decisions affecting people’s livelihoods and quality of life, as seen in the case of FMG v Ken Saro-Wiwa.


1.2 CONTROL OF ADMINISTRATIVE ADJUDICATION.It is a known fact that power corrupts and unfettered power corrupts absolutely. In line with this, the power of administrative adjudication given to administrative bodies is limited to certain scope. Administrative adjudication can be controlled by the judiciary in a society.

Judicial control or review is the most common and familiar source of redress for aggrieved parties. According to Ese Malemi, judicial review is the power of a court to examine the acts of the other branches of government, lower courts, public or administrative authorities and uphold them or invalidate them as may be necessary. In judicial review, the court among other things, usually examines the decision and the procedure used in arriving at the decision. The issue of judicial review was examined by the Supreme Court in the case of Abdulkarim v INCAR ltd.

Most modern legal systems allow the courts to review administrative acts i.e. individual decisions of a public body. In Nigeria, high courts and other superior courts can control the activities of the administrative adjudicatory bodies by reviewing their findings and determinations, as confirmed in the case of Arubo v Aiyeleru. A court may intervene to review the decision of a tribunal in a number of grounds, which includes constitutional limitation, statutory limitation as well as criminal jurisdiction.

Constitutional limitation: One of the ways in which administrative adjudication can be controlled is by the provisions of the constitution. No administrative adjudication must violate the provisions of the constitution, which is grund norm in a society like Nigeria. In the event of any conflict, the constitution will always prevail, pursuant to the supremacy provision in section 1(3) of the 1999 CFRN. The constitution also provides for the rules to ensure the right of fair hearing and since the administrative bodies are empowered to decide matters which will affect the civil rights and obligation of the parties, they are enjoined to follow these rules laid down by the constitution. Furthermore, the statute establishing administrative adjudicatory bodies must not oust the jurisdiction of the courts of law to review such determinations made therein, as provided under section 4(8) of the 1999 CFRN.

Statutory limitation: It has already been stated that an administrative adjudicatory body is established by a statute, enabling statute, which provides the scope and nature of its powers. Be that as it may, an administrative adjudicatory body cannot then exceed the limit of powers granted to it by the statute, as this would amount to ultra vires. The doctrine of ultra vires applies as much to legislative powers as it does to judicial powers, and it could be procedural or substantive. Substantive ultra vires involves any act which is outside the powers conferred by the statute establishing such body. On the other hand, procedural ultra vires occurs where the administrative authority disregards the express procedural rules laid down by the enabling statute in effecting its duties, as seen in the case of Chairman of the Board of Inland Revenue v Rezcallah.

Criminal jurisdiction limitation: It is very important to note that the consequence of the wordings in the constitution under section 36(2); “that affects or may affect the civil rights and obligations of any person” is that an administrative body does not have jurisdiction to entertain any issue that involves allegation of a crime, as this aspect can only be tried by a court or a tribunal established by law and constituted in the manner prescribed under the constitution, as expressed in the case of Archibong Udo


v Cross River State Newspaper Corp. Also, Oputa JSC, in the well celebrated case of Garba v University of Maiduguri, expressed that it is justice when anyone is accused of a criminal offence, he should in his own interest and in the interest of truth and justice, be tried by the ordinary courts of the land. However, as the court stated in the case of University of Agriculture v Jack, the court did not lay an immutable rule in Garba’s case that once there is criminal allegation in the act of an employee, the employer will have no power to exercise disciplinary actions on him unless his guilt or otherwise is proved in a criminal court. Thus, where the accused has been found guilty of the crime by a competent court of law, other disciplinary measures may be taken against him by the administration. Another exception to this rule is that where the accused has admitted the commission of the crime, it will become unnecessary to prosecute him or her and administrative adjudication may be put in motion to examine the misconduct, as seen in the case of Dong v Civil Service.

1.3 JUSTIFICATION OF ADMINISTRATIVE ADJUDICATION

After having discussed the various classifications of administrative adjudicatory bodies, it is important to examine the reasons for the existence of these bodies.

Cheap – One of the rationales for administrative adjudication is that the process is cheaper, both from the litigant’s point of view and often from that of the government authority. In the case of the former, it is cheaper than the judicial procedure in court, since, unlike in a court proceeding, it does not require the litigant to pay for things like briefing a counsel.

Requirement of expertise – Matters arising for administrative determination often require expert or technical knowledge which the ordinary courts do not necessary possess. Thus, in administrative adjudication, it consists of both legal minds and otherwise, who have special or expert knowledge.

Speed – As opposed to the incessant delays and adjournments experienced in ordinary courts, cases arising for determination by administrative adjudicatory bodies are disposed of quickly and expeditiously. Lord Wilberforce once noted in a decided case that the foreign compensation commission was one of the many tribunals set up to deal with matters of a specialized character, in the interest of economy, speed and expertise.

Informality – Administrative adjudication process is informal as opposed to the technical nature of its counter part; court proceedings such as examination, cross examination as well as the strict rules of evidence. However, there is a certain minimum standard for the rules of evidence applicable in administrative adjudication. It must also observe the rules of fair hearing otherwise the hearing would be null and void. Government, by means of administrative adjudication, is able to implement and achieve certain social, economic and political ends which it is committed, without being fettered by the rules of precedent.

1.4 CRITICISMS OF ADMINISTRATIVE ADJUDICATION


Notwithstanding the appraisals given to administrative adjudication, it has also been argued against on several grounds.

Inadequate legal knowledge – One of the arguments against administrative adjudications that although the members of the bodies are experts in their respective fields, they often lack the requisite legal training for the adjudicatory functions they perform. Notwithstanding the fact that the chairman may be a judge, lawyer or someone learned in law, the other members are usually lay-men.

Lack of Independence – The members of these adjudicatory bodies are usually appointed by the administration or government and are often loyal to this administration setting them up. Thus, there is naturally lack of independence and tendency of partially in favour of the government, so as to secure their reappointment.

Flexibility – The same attribute of flexibility which has been adduced as a justification is also a ground for its criticism. It has been argued that the flexibility of the administrative adjudicatory process has created uncertainty in administrative legal development. The Supreme Court has, in several cases, frowned at the procedural irregularities that occur in judicial and quasi-judicial proceedings and determinations, such as in the case of FCSC v Laoye.

1.5 CONSTITUTIONAL REQUIREMENT OF FAIR HEARING IN ADMINISTRATIVE ADJUDICATION

It has been stated earlier that the constitution, pursuant to section 36, guarantees the right to fair hearing in the determination of a person’s rights and obligations. Commenting on the similar provisions of section 33(1) of the 1979 CFRN, the court in the case of Kotoye v CBN expressed that fair hearing in the context of this provision of the constitution, encompasses the plenitude of natural justice in the narrow technical sense of the two pillars of justice- audi altarem partem and nemo judex in causa sua, as well as what is not only right and fair to all concerned, but seems to be so. Furthermore, in the case of Ogundoyin v Adeyemi, the court noted, in analyzing this provision, that each party to a dispute before a court of law or any other tribunal must be given fair hearing not only to allow each to state his own case in court or before a tribunal but also to give each party notice of the date of hearing and place of hearing, which is the principle of audi altarem partem. Thus, there must be observation of the rules of natural justice in the determination of the civil rights and obligations of the citizen, as noted in the case of LPDC v Gani Fawehinmi. However, it should be noted that the constitutional provisions of fair hearing are far wider in scope than the doctrine of natural justice, although it encompasses this doctrine. Thus, as was noted in the case of Deduwa v Okorodudu, a fair hearing must of course be a hearing which does not contravene the principles of natural justice.

Generally, according to Iluyomade and Eka, natural justice connotes the right in man to have a fair and just treatment at the hands of the rules or their agents. Natural justice means do unto others what you


want them to do to you, as expressed by Ese Malemi. The constitutional importance of fair hearing in administrative adjudication can be seen in a number of cases such as that of Lakanmi v AG of Western State as well as Jackson v Gowon. It was expressed in the case of Legal Practitioners Disciplinary Committee v Fawehinmi that once a body of persons by whatever name called, are invested with authority to hear and determine particular issues or disputes, either by the consent of the disputants, or by an order of the court, or by the provisions of a statute, such a body will be required to carry out its function with that fairness and impartiality which the rules of natural justice dictates.

Over the years, certain principles which are not and cannot be exhaustive have been developed in the course of the application of the concept of natural justice. In relation to civil rights and obligations, some of these rules include fair hearing stricto sensu, rule against bias, rule for trial within reasonable time and a number of them which would be discussed below.

The precise content of fair hearing cannot be predetermined. Certain requirements are, however, basic as will be seen. This aspect shines light on the common law maxim; audi altarem partem, which means hear the other side. Each party must be given equal opportunities to present their cases and must not be denied of a right to be heard and also, justice must be manifestly and undoubtedly seen to be done. This right to a fair hearing includes a number of issues, one of which is the right to be given notice of a hearing at which parties will have opportunity to present their case before a decision is made. Such notice must also be adequate and sufficient, as seen in Owolabi v Permanent Secretary Ministry of Education.

Another principle under fair hearing is that the type of hearing must ensure fair hearing. The choice of oral or written type of hearing is dependent on the enabling law or statute which sets up the administrative adjudicatory body. In the absence of any law, the administrative authority has the discretion to determine the type of hearing to be adopted. The oral type of hearing is similar to the proceedings in a court of law and it generally involves making statements, arguments as well as cross examinations. On the other hand, the written type of hearing involves the presentation of allegation in writing as well as other supportive documents. The rule of natural justice does not guarantee a right to oral hearing. It merely demands that parties to a case should be placed on the same footing, so that if one of the parties is given an oral hearing, the other party must also be given the opportunity to state his case orally and same goes where the hearing is written. Thus, equal opportunities should be given to the parties i.e. the accused and the person accusing, to exchange allegations and defences, as seen in the case of Adedeji v Police Service Commission. Another case that can be seen in this respect is that of R v Director of Audit (Western Region) and Another Ex parte Oputa and others. It should be noted at this point that irrespective of the fact that the authorities may have the freedom to determine its own proceedings, where such proceedings are statutorily prescribed, the authorities must comply with the statutory provisions, as seen in the case of Ayetan v NIFOR.

Another consideration under the right to fair hearing in administrative adjudication is the right to confrontation and cross examination. The right of confrontation applies to all types of hearing, be it oral or written. It also extends to every piece of evidence to be relied upon by the administrative tribunal. The need for the parties to any case to be given the opportunity to confront and cross-examine each


other can be seen in the case of Denloye v Medical and Dental Practitioners Disciplinary Committee, as being for need of ensuring that justice is done.

Furthermore, the right to fair hearing in administrative adjudication includes the right to legal representation. Due to progressive trends in law, the courts have discarded the view that counsels have no right of audience before such a tribunal, which was earlier established in the case of Maclean v The Worker’s Union. The right to legal representation is constitutionally guaranteed under section 36 of the 1999 CFRN. It is, however, the circumstances of each case which would enable the court to construe whether this right to legal representation has been violated, as seen in the case of Odukale v University of Ife. However, it has been raised in the court in the case of Enderby Town Football club ltd v The Football Association Ltd that proceedings before domestic tribunals such as football associations should be conducted informally without legal representations as no points of law are likely to arise.

It was earlier stated that the doctrine of natural justice is made up of two important latin maxims; audi altarem partem and nemo judex in causa sua, the earlier explained constitutes the first maxim. After having discussed that, another principle under the broad umbrella of fair hearing is the rule against bias which falls under the maxim nemo judex in causa sua. In relation to the rule against bias, the constitution under section 36(1), provides that the court or tribunal must be “constituted in such manner as to secure its independence and impartiality”. Though not express on the rule against bias, it can be construed to encompass the rule. At common law, bias is the opinion or feeling in favour of one side in a dispute or argument, resulting in the likelihood that the judge so influenced will be unable to uphold an even scale. Under English modern law, a judge is disqualified from hearing any case in which he has a pecuniary interest or any other interest likely to be a real cause of bias. In the case of University of Calabar v Esiaga, it was held that bias could arise from three situations: firstly, a financial interest in the litigation, secondly, it could arise from a special or personal relationship between the judge and a party, such as marriage or friendship and lastly, a mere natural loathing or aversion to the facts of the case, which the judge is incapable of suppressing. It should, however, be noted that the test of biasness is not that of actual bias but the real likelihood of bias, as seen in the case of Abiola v FRN. Thus, the question is not whether the adjudicator was in fact bias, but that there was real likelihood of him being so, and this test is based on the point of view of a reasonable man, as expressed in the case of Archibong Udo v Cross River State Newspaper Corp. As regard administrative authorities, the effect is to make such a decision void, as noted by Wade.


2.0 EXHAUSTION AND RIPENESSThe doctrines of exhaustion and ripeness are closely linked to the doctrine of locus standi as they all operate as a practical limitation on the availability of judicial review on administrative actions, since they require that in order to be able to institute an action in court, certain conditions must be followed.

2.1 EXHAUSTIONOften times, administrative bodies provide for means of resolving issues and conflicts within itself without having recourse to the courts of law. Where internal administrative remedies or dispute resolution mechanism exists within a public or administrative authority or organization, and recourse has not been made to such internal remedy mechanism, a court may be reluctant to act and grant relief, until this option has been tried. This requirement is what is known as the doctrine of exhaustion. In the case of Obiegbu v University of Abuja, the court held that the action was premature for not exhausting the internal avenue for seeking redress pursuant to section 18(7) of the university’s Act which provided that no staff or student shall resort to a law court without exhausting the internal avenue for settling disputes, grievances or for seeking redress. Thus, it can be seen that where a statute provides for resort to an administrative remedy, the court cannot competently decide on any dispute arising there from until the admin remedy has been exhausted, as also seen in the case of Agienoji v Commissioner of Police. However, according to Ogundare JCA in the case of Oseyomon v Ojo, where a statute prescribes an internal procedure of settlement of disputes, an aggrieved party reserves the right to commence action in the High Court without exhausting the internal procedure, pursuant to sections 6(6) (b) and 236 of the 1979 CFRN.

This doctrine is justified on the ground that it helps people avoid rushing to court at the slightest provocation and thereby preventing congestion of the courts. It is also justified on the ground that it enables the administrative agency to have another look at the admin error and to provide appropriate remedy.

It should be noted here that this principle will only be applicable where the subject matter is within the competence of the administrative agency or that the administrative remedy is likely to be the same if the court is given the opportunity to handle the matter, as seen in the case of Ayeni v Obasa.


2.2 RIPENESSThis is a principle by which the intervention of the court is delayed until the issue in controversy is ripe for determination. A matter is ripe for determination if a right has been, is being or is likely to be contravened by any person or body. It has been expressed by Ese Malemi that a court must not bring itself to ridicule by trying speculative and imaginary issues. The rationale for this principle is to prevent the courts from becoming entangled in abstract disagreements over administrative policies and also to protect administrative agencies from judicial interference until a particular administrative decision has been finalized and its effect felt in a concrete way by the challenging parties, as seen in the case of Okoro v Governor of Imo.

The constitution, pursuant to section 46, recognizes the doctrine of ripeness where it provided that any person who alleges that any of the provisions of the chapter has been, is being or is likely to be contravened in any state in relation to him may apply to a High Court in that state for redress. This issue of ripeness was applied in the celebrated case of Okogie v AG Lagos state. However, pursuant to this same provision, it can be seen that a party whose right is likely to be contravened may seek redress, especially where if waited for the act to be done, irreparable damage would have been done, as seen in the case of Adewale v Jakande.


3.0 LOCUS STANDIIt has been expressed by Professor Ibadapo-Obe that there is a pattern of deliberate denial of citizens’ access to courts in Nigeria through various negative legal devices. Some of which include ouster clauses, statutes of limitation, doctrine of immunity, doctrine of ripeness as well as doctrine of locus standi.

Historically, the doctrine of locus standi was a dominant intention of the Romans to ensure the sanctity of their laws. Consequently, any individual with sufficient interest could go to court to have wrongs redressed, as expressed by A. Denning. Thus, the issuance of writs was limited to persons who had particular grievances of their own, over and above the rest of the populace. This line of thinking has been adopted in Nigeria, where the courts deny free access to the courts except where the litigant can show that the act complained of affects rights and obligations personal to him, as seen in the case of Abraham Adesanya v President of Nigeria.

Generally, locus standi is the right of an individual to be heard by a competent court of law or any other proceedings. It was defined in the case of Adesanya v President of Nigeria as the right of a party to appear and be heard on the question before the court or tribunal. It has also been defined by an author, O. Bowen, as the legal right to seek judicial intervention in a controversy and to invoke judicial determination of the rights and obligations of the parties to the dispute. In simple terms, the law is that before a person can institute an action against another party, he must show individual legal interest in the particular case.

This doctrine is often confused with both that of jurisdiction and justiciability. In relation to jurisdiction, many writers, such as B. A. Susu, have drawn a parallel between locus standi and the concept of jurisdiction. According to O. Bowen, whilst the court clearly lacks jurisdiction where a plaintiff has no locus standi, the question of locus standi is concerned with the nature and capacity of the prospective litigant whereas the issue of jurisdiction refers to the delimitation on the scope of judicial function. Thus, locus standi focuses on the party seeking to get redress and not on the issue arising for adjudication, as seen in the case of Fawehinmi v Akilu. On the other issue, justiciability, It may have been expressed in Adesanya’s case by Obaseki JSC that locus standi is an aspect of justiciability and is surrounded by the same complexities as justiciability. Also, Niki Tobi JCA also expressed that it does not appear that the concept of locus standi can have any real meaning outside the judicial powers of the courts in terms of justiciability. However, Mowoe noted that whilst non-justiciability of an issue necessarily means no standing, the two concepts are not interchangeable.

There are several constitutional provisions which have bearing on the doctrine of locus standi, one of which includes section 6(6) (b) which provides that the judicial powers vested in the courts shall extend to all matters between persons or between government or authority in Nigeria and all to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person. The courts in the


interpretation of this section have given it a narrow scope i.e. in the direction of the doctrine of locus standi. Niki Tobi, in a decided case, noted that section 6(6) (b) does not confer locus standi on a plaintiff who has none. It does not clothe locus standi on everyone under the sun to institute any type of action against anybody at any time, at will. In the same line, Nnamani JSC stated that the courts must operate within the perimeter of section 6(6) (b) and that they can only take cognizance of disputes in which parties have a sufficient interest. Another provision of the constitution is section 36 which provides for the right to fair hearing. Where the rights of an individual have been clearly breached or are likely to be breached, the courts have always given locus standi to the person aggrieved, as seen in the case of Olawoyin v AG of Northern Region. This position has, however, been criticized on the ground that a bad law is sufficient grievance so that the court should have proceeded to test the law and not shut out enquiry on grounds of lack of standing. Finally, section 46 of the 1999 CFRN also has bearing on locus standi. This section provides that any person who alleges that any of the provisions of the chapter has been, is being, or is likely to be contravened in relation to him, may apply to a High Court in that state for redress. The issue of standing in this respect remains on the insistence on peculiar damage and this restrictive interpretation has continued to constitute a barrier to free access to the courts in many deserving cases, as noted by Prof Ibidapo-Obe. Lord Denning has also expressed his displeasure with the doctrine of locus standi, as seen in the case of Gurret v UPW.

A person must be able to show that he is not a volunteer and that his interest in the subject matter is real, present and imminent. If the degree of interest demonstrated is legally insufficient, the court will not have jurisdiction to entertain the matter. The requirement or tests for the doctrine of locus standi to be applied are “special interest” and “personally aggrieved”. Thus, it can be said that there are two tests to proving locus standi; firstly, an interested party and a person asking for declaration must first show that he has an interest in the subject matter, as seen in the case of Olawoyin v AG Northern Region; another test is whether the party seeking redress or remedy will suffer some injury or hardship arising from the litigation, as seen in the case of Ovie-Whiskey v Olawoyin. With regards the first test i.e. special interest, Niki Tobi defined it as that quantum of interest which a person must have to clothe him with locus standi, such interest being a matter of mixed law and fact. The courts have wide discretion in determining what constitutes special interest. This test of special interest is applied in different situations ranging from political scenes to religious matters as well as chieftaincy matters and others included. With regards the other test, the party must show that he has suffered damage peculiar to him and not one suffered by an entire community. Thus, it must have been a private right and not a public one which is usually enjoyed as a collectivity, as in the case of a state commencing a suit against another state or against the federal government over resources, as seen in the case of AG Bendel v AG Federation.

Generally, an unconstitutional right will affect the generality of the populace and therefore take on the nature of public rights, as seen in the case of Adesanya v President of Nigeria, and it is only the Attorney General who has the prerogative of instituting an action. However, a dissenting view which comes as an encouraging and refreshing perspective came from Fatayi-Williams CJN when he described actions to enforce the constitution not as a public right but as a civil right. Also, in the case of Adefalu v Governor of Kwara State, the learned Justices were of the opinion that there should not be any restriction to litigants who come to court in line with the provisions of the constitution.


The Supreme Court appears to have opened the gates wider on locus standi in the area of criminal law, as seen in the case of Fawehinmi v Akilu, where it was expressed that the Criminal Code, the Criminal Procedure Law of Lagos state and other laws similar to it all over Nigeria, have made everyone their brother’s keeper in ensuring the prevention of crime in the society. This position is contrary to the restrictive approach as laid down in the case of Abraham Adesanya v President, FRN.

The rationale for having locus standi is not to allow a person who is a meddlesome interloper to come to the court for frivolous issues and to prevent the time of the court being wasted on frivolities. It is also meant to prevent the unprofessional litigant from delving into matters which does not affect their interest. In the case of Abraham Adesanya v President of Nigeria, it was stated by Bello JSC that there would be anarchy and not democracy if everyone were permitted to take up arms against those they consider to be transgressors of the constitution or if everyone were allowed to perambulate all over Nigeria, suing or prosecuting constitutional offenders. Also, for Niki Tobi, the justification for a special interest of a litigant is based on the need to prevent frivolous litigation; to protect the rights of the defendant not to be dragged into unnecessary litigation by a person who has no standing in the matter or who is a mere busybody parading the corridors of the court. Thus, declarations of the court would be withheld from a person who is a mere busybody who is interfering in things that do not concern him.

Although this concept has been justified on the ground that there is need to shield the governmental authorities from unnecessary litigation, the problem the court usually faces with applying the doctrine is the discouraging of certain people who bring forth intellectual arguments. The problem is the balancing of the desirability of encouraging individual to participate actively in the enforcement of the law and the undesirability of encouraging the unprofessional litigants i.e. the meddlesome interloper, to invoke the jurisdiction of the court.

Conclusively, notwithstanding the problems faced by the courts in applying this doctrine and the criticisms on the strict application of the doctrine, the doctrine is one important doctrine, without which we would experience clogging in our judicial machinery, the courts.

3.1 LOCUS STANDI AND ENFORCEMENT OF ADMINISTRATIVE REMEDIES The degree of interest which a plaintiff must show will often depend on the nature of remedy being sort for from the court.

In the case of certiorari, a certiorari is generally an order directing a lower court, public or administrative authority to forward its record of proceedings to a higher court for that court to inquire into the legality of its decision and review it as may be necessary. Where the application is made by the person aggrieved, it ought to be granted. However, where the interest is not sufficient, the court has discretion to determine whether to grant him standing to sue and subsequently the declaration. In the case of Farquharson v Morgan, Lord Halsbury stated that it was immaterial by what means and by whom the court is informed of an objection to the jurisdiction of an inferior court or tribunal.


A prohibition is an order of court restraining an inferior court, tribunal =, public or administrative authority from exercising its judicial or quasi-judicial powers, as expressed by Malemi. Like certiorari, the court demands for sufficient interest before the order of prohibition is granted. court makes a distinction as to whether the defect of jurisdiction by the administrative body is apparent or not. Where it is apparent, like in relation to jurisdictional defects, any person may ask for prohibition without showing any special interest or personal grief, as seen in the case of Olawoyin v AG of Northern Region.

Finally, a mandamus is an order of court, commanding a person or body to perform a public duty which lies on him, as seen in the case of Fawehinmi v Akilu. In the case of Ulegede v Commissioner for Agriculture, Benue State, it was stated that for an order of mandamus to issue, the law requires that there must be a legal right on the part of the applicant for mandamus, to the performance by a person or body of some duty of public nature and not merely of private character.

There are cases suggesting that the applicant must first of all show that he has a legal interest, just as in R v COP of Metropolis ex parte Blackburn, where it was stated that the party who applies for mandamus must show that he has sufficient interest to be protected and that there is equally no other convenient remedy; and there are also cases in which the court has adopted liberal attitude on granting the remedy of mandamus with respect to locus standi, as seen in the case of Fawehinmi v Akilu as well as that of Fawehinmi v IGP.


4.0 PRE -ACTION NOTICE Judicial review as a method of control on administrative adjudication and other administrative actions has been subjected to certain limitations of which most of them fall under failure to follow due process of the law. Generally, due process of law is the lawful way of doing a thing in any given area of law i.e. the observance of the law. Due process is to be observed by both the government or an administrative authority and the individual and where the government or administrative authority fails to follow due process of the law, it becomes a strong ground for successfully challenging and setting aside the acts of the authority, for instance, the situation in the case of Inakoju v Adeleke on the issue of impeachment. On the other hand, non observance of due process by a person is a ground for government to deny the person from claiming his right and remedy for any loss or injury suffered by him. One thing which would result to non compliance of due process by the individual is failure to issue pre-action notice.

The issuance of pre-action notice to the government before proceeding with a suit can be seen as special privileges given to government, its agencies and corporation. A pre-action was defined by the Supreme Court in the case of Ntiero v NPA as some form of legal notification or information required by law or imparted by operation of law, contained in an enactment, agreement or contract, which requires compliance by the person who is under legal duty to put on notice the person to be notified, before the commencement of legal action against such person. It was also defined by Ese Malemi as a notice of intended legal action which a statute requires to be given to a would-be defendant to enable him or it decide whether to make reparation to the plaintiff or let the matter go to court for determination. It should be stated here that a pre-action notice is not an ouster clause or a decree by the government to prohibit judicial review. It is intended that an applicant seeking redress is required to give a specified period of notice to such public authority before filing such action before the court, which is usually stipulated in legislation. Examples of provisions in legislations which contain conditions of pre-action notice include Section 289 (1) of the Investments and Securities Act, 2007; Section 12 (2) of the NNPC Act; Section 110(2) of the Nigerian Ports Authority Act.

One feature of a pre-action notice is that they are common in statutes establishing the statutory corporations and governmental bodies as may be seen in the above given examples. Another feature is that they are phrased in mandatory terms connoting strict adherence, failure of which renders the suit incompetent as it is a fundamental defect. Furthermore, the statutes which provide for the condition of pre-action notices before filling a suit usually prescribe a stipulated period for which this notice is to be issued and served, For instance, the Investments and Securities Act prescribe that an aggrieved person should give a 14days notice in writing of his intention to institute an action or appeal against its decision. Also, the NNPC Act prescribes a period of one month. One other feature is that some of the statutes which prescribe an issuance of pre-action notice usually specify the contents of such notice. For instance, the NNPC Act provides that the notice shall clearly and explicitly state:


- The cause of action;- The particulars of the claim;- The name and place of abode of the intending plaintiff; and- The relief which he claims.

It is highly noteworthy to state at this point that where the pre-action notice falls short of its prescribed period or is defective, it will be declared invalid, illegal, ineffectual, null and void. This subsequently affects the jurisdiction of the court to entertain such matter notwithstanding the urgency or the strength of the cause of action that has arisen. This is because a pre-action notice is not a mere acknowledgement to be brought to the notice of the defendant but a proper notice in accordance with the statutory provision establishing the government body or agency. Thus, in the case of Somolu Local Government Council v Agbede, the court confirmed the view that where the plaintiff erroneously institutes the action employing the wrong procedure, the matter will be struck out as the court will be incompetent to entertain the action since it is a nullity ad initio.

The rationale for this condition precedent is to enable the government body settle the matter amicably out of court or have adequate defence for the matter, where the case is eventually instituted against such body in a court of law. According to the court in the case of Nigercare Development Company Ltd v Adamawa State Water Board, the purpose of giving notice of a claim or a pre-action notice to a party is that it is not taken by surprise but so that it should have ample time to prepare to deal with the claim in its defence.

The effect of non-compliance of a requirement of issuance of a pre-action notice to a governmental body before an action is instituted in a court of law is fatal to the case. Where a plaintiff fails to serve a pre-action notice on the defendant, this renders the suit incompetent and outside the jurisdiction of the court for failure to follow due process, as seen in the case of Madukolu v Nkemdili. This failure would put the jurisdiction of the court in abeyance pending compliance with the condition. In the case of NNPC v Gani Fawehinmi, the requirements of a pre-action notice are not merely ornamental but go to the root of what will make the institution of such action in court valid and would enable the court to exercise jurisdiction so conferred on it.

There have been arguments that a statutory provision which gives privilege to a party over and above another in the same cause of action is totally inconsistent with the provision of Article 3 of African Charter on Human and People’s Right, which provides that every individual shall be equal before the law and that every individual shall be entitled to equal protection of the law. However, the court on several occasions have expressed that this notice does not extinguish the right of a complainant to a suit but only delays it until the precondition is met, as seen in the case of Gani Fawehinmi v NNPC. Another case which buttresses this point is that of Nigerian Cement Company Ltd v Nigerian Railway Corporation.

Conclusively, just as stated in the case of Texaco v Shell, the law is sacrosanct that where there is non-compliance with a stipulated precondition for setting a legal process in motion, any suit instituted in contravention of the condition is a nullity and a court of law is for that reason lacking in jurisdiction to entertain it.


5.0 JUDICIAL REMEDIES FOR ADMINISTRATIVE ACTIONSIn cases of maladministration, remedies for administrative actions come through several sources such as the legislature, executive, judiciary and other non-judicial remedial measures. In view of all these, the people commonly resort to the courts for relief instead of turning to the legislature or the executive. Indeed, judicial review of public or administrative acts is so common and well known, that it is often regarded as the only remedy for the acts of public or administrative authorities, as rightly noted by Malemi.

The general principle of law in this respect is ubi jus ibi remedium, which means where there is a wrong, there is a remedy. The law provides a large number of possible remedies: the prerogative order of prohibition, certiorari, mandamus and the writ of habeas corpus. It also provides for the equitable remedies of injunction and declaration, which are the principal ones.

5.1 PREROGATIVE ORDERS Initially, these orders were known as prerogative writ, as they were issued by the King or Queen, as the “fountain of justice”. This was so till the enactment of the Administration of Justice (Miscellaneous Provisions) Act, 1938, where the writs were abolished and orders of the same names were substituted therefore, with the exception of habeas corpus which retained its name as the writ of Habeas corpus. These orders were received into Nigeria by virtue of section 45 of the Interpretation Act which provides for received English laws: common law, doctrine of equity and statutes of general application. However, in Nigeria, the courts still erroneously refer to these orders as prerogative writs, for instance in the case of Layanju v Araoye.

It should be noted at this point that where administrative right is coupled with Fundamental Human right, this gives rise to enforcement under the FREP rules, as seen in the case of Garba v University of Maiduguri. Fundamental Right Enforcement Procedure rules are made pursuant to section 46 of the 1999 CFRN and they are special procedures that guarantee rights contained in Chapter IV of the CFRN. This would not arise where there is no breach of any fundamental right, e.g. termination of employment or issue of exam malpractice. It should be stated that there must not merely be a breach of the Human right as guaranteed in the constitution, but this breach must be the fundamental issue in contention and not merely subsidiary or ancillary to the administrative wrong.

Prerogative orders are issued by superior court as a form of supervisory jurisdiction on inferior court and from the case of R v Electricity Commissioners; an inferior tribunal can be inferred as meaning any body of person having legal authority to determine questions affecting the rights of a subject, and having the duty to act judicially, where having acted in excess of their legal authority, are subject to the controlling jurisdiction of a superior court. Simply put, an inferior tribunal is one which is not established as a court of record under the constitution, this is so


irrespective of the fact that it may be constituted by a judge of the High Court or even an appellate court, as seen in the case of Nigerian Breweries Ltd v Oyo state revenue court.

These orders are granted at the discretion of the courts but this grant is subject to certain special procedural rules such as locus standi; exhaustion, as seen in the case of Nwemechile v Akintemi; ripeness etc. It is noteworthy to state that these orders must be pleaded before a court, as the court would not aid the counsels even though it is obvious that a different remedy ought to be given in such case. The attitude of Nigerian courts in this respect does not show the same latitude of discretion as enjoyed in England, where the court can issue a different remedy if satisfied to that respect.

5.2 CERTIORARI This is now referred to as the quashing order. Literally, certiorari means “to be informed”. A certiorari is an order used to bring up record of proceedings to a High court to be investigated, so as to determine its legality. The underlying principle is that all inferior courts and authorities have only limited jurisdiction or powers, and must be kept within their legal bounds. Thus, where there is exercise of excess power or a defect in procedural rules, this order can be issued so as to determine the validity of such decision. Where these records of proceedings are sent to the superior court, after due investigation, it can either certify the decision or quash it.

Certiorari may be said to be close to an appeal. However, these two are different on certain grounds, one of which involves the fact that certiorari, unlike an appeal, is a discretionary order and the court is never bound to grant it, even where sufficient grounds for its issue are established. Secondly, the grant of an order of certiorari does not substitute the decision of the inferior court or tribunal with that of the superior court, but merely quashes the former’s decision, as seen in the case of Re Umolu village.

It should be stated that certiorari would only lie where a public officer in the discharge of his function is bound to act judicially. Thus, it is available against administrative adjudicatory bodies, generically known as tribunals or inferior tribunals which have been amply described above, as seen in the case of R v Electricity Commissioners. In other words, an order of certiorari will not be available against a high court, which is not an inferior court, as seen in the case of R v Criminal Court Justices ex parte London County Council, where a criminal court was held to be a superior court of record, of which certiorari cannot lie. It would also not lie to quash the decision of an administrative authority if that authority has no duty to act judicially but merely directed to exercise administrative or ministerial powers, as seen in the case of Fela Anikulapo Kuti v COP, Lagos state.

There are several grounds for which certiorari would be available and these includes where the tribunal has failed to observe the principles of natural justice, where the tribunal exceeded its legal powers or where the inferior tribunal committed some error of law which is manifest on the face of the records.

In relation to non-observance of natural justice, section 36, provides that in the determination of a person’s civil rights and obligations, such person shall be entitled ot fair hearing within a reasonable time by a court or tribunal established by law and constituted in such manner as to secure its independence and impartiality. Flowing from this provision of the constitution, it can be seen that any body, by whatever name called, exercising judicial or quasi-judicial powers, are directed to exercise these powers pursuant to the rules of fair hearing and natural justice: audi


altarem partem and nemo judex in causa sua. Thus, where there is breach of this, as seen in the case of Garba v University of Maiduguri, an order for certiorari may be sought.

On the second ground i.e. where there is issue of ultra vires, certiorari may be granted in all ultra vires proceeding, which includes both procedural and substantive ultra vires.

Finally, it would lie in the issue of error or defect. It was expressed by Okany that where the defect of jurisdiction is manifest in the sense that the want of jurisdiction is apparent on the face of the proceedings, certiorari will lie and this is so, notwithstanding that a statute excludes any judicial review of the tribunal’s proceedings by means of prerogative orders, as seen in the case of R v Governor in Council, Western Region. The principle of incompetence will apply to all inferior tribunals, following the rules set down in the case of Madukolu v Nkemdili.

It should be noted here that the existence of an alternative remedy may operate to deny certiorari an applicant, if the alternative remedy is statutorily made exclusive or if it is more convenient and adequate. However, this existence of alternative remedy will not always deny the remedy to an applicant and in deciding whether or not to exercise its discretion in favor of the applicant, the court shall take into consideration the existence of such a remedy, its adequacy and convenience and the reasons of the applicant for not taking advantage of other available alternatives. Thus, an applicant for this remedy must first exhaust other available and more convenient remedies, before submitting his application.

5.3 PROHIBITION This is an order issued out of the King’s Bench or any other superior court directing the judge and the parties to a suit in an inferior court to cease from the proceeding or prosecution, on the ground that the case did not belong to that jurisdiction. According to Ese Malemi, it is an order of court restraining an inferior court, tribunal or public authority from exercising its judicial or quasi-judicial powers.

From this, it can be seen that the orders of certiorari and prohibition are often considered together because they issue according to the same principles i.e. it will apply when administrative bodies are exercising power that will affect rights and obligations of the parties or for the purpose of fairness. Thus, only where powers being exercised are judicial or quasi judicial as opposed to purely administrative actions, would a grant of prohibition lie, as seen in the case of R v Electricity Commissioners and also that of Board of Education v Rice. The difference being that, whereas certiorari applies to decisions already completed, prohibition applies to proceedings which have not been completed. It should, however, be noted that the two remedies may work hand in hand, although they may be sought separately, for instance where a quashing order is given, the court may go ahead to give a prohibition order to prevent any further irregularity. Also, the same points of jurisdiction may be raised for either of the two remedies.

It should be expressed that the person to be restrained by order of prohibition need not be a court stricto senso, it only needs to have a duty to act judicially or like a court or to make determinations that will affect the civil rights and obligations of a person, as seen in the case of Federal Military Government v Nwachukwu. The problem of determining whether an action is judicial or quasi-judicial, as opposed to purely administrative, was discussed in the case of Ridge v Baldwin.


It has also been observed that the order of prohibition is similar to the equitable remedy of injunction. However, there a number of differences between these two, one of which is the fact that the scope of prohibition is limited to persons or bodies enjoined to act judicially, as seen in the case of R v Electricity Commissioners, whereas the scope of injunction is much broader. Also, whereas a mandatory injunction; a type of injunction, may be issued to compel a person to undo what has already been done, the courts will not order a prohibition where the act has been accomplished.

The order of prohibition operates to prevent an inferior tribunal or court or other body exercising judicial or quasi-judicial powers from:

1. Exceeding its jurisdiction, pursuant to the rules laid down in Madukolu v Nkemdili, as seen in the case of Azikiwe v Fedeco;

2. breaching the requirement of natural justice, as seen in the case of Owolabi v Permanent Secretary, Ministry of Education as well as that of Fawehinmi v LPDC;

3. Acting contrary to law and public policy, as seen in the case of Shugaba v Minister of Internal Affairs. This includes acting contrary to the provisions of the constitution.

5.4 MANDAMUS The term “mandamus” means “we command”. It is one of the prerogative orders by means of which the high courts generally control inferior courts and tribunals as well as individuals and bodies having a legal duty to perform. Thus, unlike certiorari and prohibition which is limited to judicial or quasi-judicial action, this one extends to public duties generally.

Mandamus was defined in the case of Fawehinmi v IGP as an order issued form the High court which directs any person, corporation or inferior court, requiring it to do a particular thing which pertains to its public duty. It can also be described as an order generally sought by a private person to command the performance of some ascertainable public duty. Furthermore, it has been observed to be a remedy closely akin to mandatory injunction, as seen in the case of Shitta-bey v Police Service Commission. However, they are different on the ground that the injunction is an equitable remedy whereas mandamus is a common law which is used only in public law, as opposed to the former which is rarely found outside private law.

The grant of mandamus, like other prerogative orders, is a discretionary one and cannot be had for the asking, but proper course must be shown to the satisfaction of the court, as seen in Fawehinmi v IGP. Therefore, there are four basic conditions which must be satisfied before the order would be given and these are as follows:

1. The person or body to whom it is directed must be performing a public duty;2. The duty must be owed to the applicant;3. There must have been a demand by the applicant for the performance of the duty by the respondent; and4. It must be shown that the respondent has refused to discharge the duty.

PUBLIC DUTY: It can be inferred from the decision in the case of Shitta-bey v PSC that a public duty is one which the party requires public authority to perform which pertains to his or her office. The duty may be created


and vested in the person, body or tribunal by law, custom or contract. Thus, such duty must be recognised by law and not merely a moral or religious duty. In the case of Padfield v Ministry of Agriculture, the court held that the referring of complaints to a committee was a public duty. Also, as shown in the case of R v Minister of Land and Survey, the applicant must show that the duty is imperative or mandatory and not merely permissive. It should be stated that this duty includes a duty to exercise discretion, as seen in the case of R v Minister for Lagos Affairs, ex parte Cherubim and Seraphim Society.

DUTY OWED TO APPLICANT: The duty to be compelled must be owed to the applicant or a class to which the applicant belongs, as seen in the case of Fawehinmi v Akilu. It was also expressed in the case of Queen v Lords Commissioners of the Treasury that mandamus will not lie at the instance of a subject or ordinary citizen to compel a public official to perform a duty he owes to the state only, because a third party cannot compel a servant or agent to discharge his duty towards his master or principal. This issue was also applied in the case of Director, SSS v Agbakoba. This condition is different from the requirement of locus standi in the sense that locus standi is a threshold of an application which is an interest that could be affected, while this duty must be established after having established standing to sue.

REQUEST AND REFUSAL TO PERFORM: It is required that the applicant must have made a request i.e. a specific and distinct demand to the respondent, that he perform the duty imposed and the respondent must have unequivocally manifested his refusal to comply, as seen in the case of Fawehinmi v Akilu. Manifestation need not be a clear and express one, as it can be deduced from the conduct of the parties, as seen in the case of Shitta-bey v PSC.

5.5 WRIT OF HABAES CORPUS This is one of the original writs and the only writ still going by that name, as the others have in 1938, been reformed to prerogative orders. Habeas corpus is a prerogative process for securing the liberty of the subject by affording an effective means of his immediate release form an unlawful detention, whether in prison or in a private custody. A person subject to unlawful detention may apply for this writ and where he cannot apply himself, any other friends or strangers can apply on his behalf because the rule of locus standi has no application to the writ of habeas corpus.

There are several types of this writ at common law, the common ones which are habeas corpus subjiciendum and that of habeas corpus ad testificandum. The first one is appropriate for securing the release of a person held in illegal detention. It lies to command the person who has the custody of a prisoner, to produce him before the court and show cause for his detention, or why the prisoner should not be released immediately. On the other hand, the second one works to bring a prisoner to give evidence where the authorities appear to be putting some physical obstacles in the path of obtaining the benefit of legal process.

In Nigeria, legislation on the writ of habeas corpus includes not only the laws inherited from our colonial administrators but also several local legislations. The 1979 and 1999 CFRN guarantee the individual, the right to personal liberty and as such the courts have pronounced upon the effectiveness of this writ for securing freedom of


detained persons, even under military regimes, as seen in the case of Onu Obekpa v COP as well as Fawehinmi v Abacha.

Habeas corpus is available against any person who is suspected of detaining another unlawfully and not merely against public officers whose duties normally include arrest and detention. However, it cannot be granted to a person who is serving a sentence passed by a court of competent jurisdiction, as seen in the case of R v Old Ham Justices. The passing of the Habeas Corpus Act can be seen as the beginning of the jurisprudence, the effect of which is that the courts will determine for themselves the existence of the facts which the executive cites as justification for its decision, as seen in the case of Shugaba v Minister of Internal Affairs. The Habeas Corpus Act prescribes fine by way of forfeiture against respondents who fail to make the necessary returns to a writ of habeas corpus.

The habeas corpus is the primary remedy available against the practice of detention of persons on mere suspicion on the grounds of awaiting trial.

EQUITABLE REMEDIES: These remedies which are granted by the equity courts for maladministration, as forms of judicial remedies for administrative actions. They include injunction and declaration and by section 45 of the interpretation Act, they are also received into the Nigerian Legal System.

5.6 INJUNCTION Injunction is an equitable remedy invented to correct some defects of a strict legal rule, as expressed by M. C. Okany. It is a judicial process, operating in personam by which, upon certain established principles of equity, a party is required to refrain from doing a particular thing. It may also be issued as an order to mandate an act which is considers as being in the interest of justice. It cannot, however, be granted to refrain subsequent prohibitions of trial.

It is available more in private law and the fundamental basis of its grant is that monetary damages will not suffice to right the wrong. The courts exercise discretionary powers in granting the relief of injunction. However, in exercising this discretion, it must be done in a manner that is judicial and judicious i.e. it must be consistent with reasonableness, fairness and good faith. In deciding whether to grant injunction, the court must balance the benefits to the plaintiff against the damages and inconvenience to the defendant, as seen in the case of AG Bendel v AG Federation.

An injunction may be temporary or permanent and the relief can be classified into interim, interlocutory and perpetual injunction, as seen in the case of Buhari v Abacha. It is an interim injunction where it is in temporary form which remains in force until the named day and date, as seen in the case of Ladunni v Kukoyi. An interlocutory injunction, just like the former, is a preservative measure taken either at the early stages of the proceedings or during the course of proceedings, to seek for an order, which is, however, pending the final determination of the suit and once this is given, neither party can lawfully take any action that will be adverse to the interest of the other party, as seen in the case of Governor of Lagos State v Ojukwu as well as Shugaba v


Minister of Internal Affairs. Finally, a perpetual or permanent injunction is one which is issued at the end of a proceeding, compelling or prohibiting a party to do an act for a specified or an indefinite length of time. Thus, this is granted after the rights of the parties have been established, as seen in the case of Globe fishing v Coker.

Before a grant of injunction can be made, certain conditions must be met and they include:

1. The plaintiff must show a strong prima facie case;2. The plaintiff must show he will suffer irreparable damage if the grant were not made;3. The balance of convenience must favour the grant of the relief;4. The applicant must establish a legal right to be protected and that he has an arguable case, as seen in the case of

Ladunni v Kukoyi;5. He must satisfy the court that the case is one of emergency or urgency; 6. The applicant must make an undertaking as to damages to indemnify or compensate if the substantive suit

proves to be vexatious; and7. The court will establish that damages will not provide adequate remedy for the plaintiff in the event of the case

being established at trial.

Where damages would be adequate remedy, the defendant is in a strong position to pay and there will be no reason to grant injunction.

5.7 DECLARATION Just like injunction, declaration is an equitable remedy. An action for a declaration asks for a declaration of right and where it succeeds, it will result to a declaratory judgement which merely states a court’s interpretation of a question of law or declares right, existing or future, of parties before it.

A number of things should be said about the remedy of declaration. Firstly, it may be brought in court even where no damages or other relief is claimed, although the action is often brought together with a claim for injunction or some other relief(s). Secondly, for an action for declaration to be sustained, there must be a justifiable issue involving a case and controversy, as the remedy cannot be brought to ask hypothetical questions. Finally, a declaratory judgement cannot be directly enforced, but it may be assumed that a public body will observe and enforce declaratory judgement of the High court, failing which an action will be instituted to enforce the declaratory judgement, as seen in the case of Shitta-bey v PSC. Also, in the case of Akunnia v AG Anambra, the court distinguished a declaratory judgement from an executory one.

An action for declaration may be brought in several cases, as it has a wide scope of application. The cases to which it may apply include:

1. Testing the validity of a legislation, as seen in the case of AG Lagos v AG Fed, where the validity of the Urban and Regional Planning Decree was in question; the case of INEC v Musa, where the validity of the Electoral Act was in dispute; AG Ondo v AG Fed, where the validity of the ICPC Act was in dispute, and other cases.


2. To challenge the validity of a decision of any other public authority with a view to having it invalidated, as seen in the case of AG Lagos v AG Fed, on the issue of holding back of local government allocation, as well as the case of Garba v University v Maiduguri.

3. To settle disputed points of law, as seen in the case of AG Lagos v AG Fed, on the issue of creation of local government councils, as well as the case of Shitta-bey v PSC.

4. To enable public authorities who are not sure of the extent of their powers or jurisdiction, to have recourse to the court for a declaration of the legal extent of their powers or jurisdiction, as seen in the case of AG Abia v AG Fed.

5. To check abuse and usurpation of powers by the authorities and to enforce existing rights, as seen in the cases of Stitch v AG Fed and Director SSS v Agbakoba.

6.0 COMMON LAW REMEDY- DAMAGESAccording to Hood Phillips, when an injury is done to a citizen’s person or property by a public authority acting ultra vires or in abuse of power, an action for damages may be brought in circumstances where an action would lie against a private individual, as in tort for trespass, false imprisonment negligence, nuisance and malicious use of power. Furthermore, if a public authority commits a breach of contract which it was within the powers of the authority to make, an action for damages will lie.

There are two types of damages; special and general. Whereas, special damages have to be specifically pleaded since they are not assumed by law, general damages are the ones which the law presumed will flow from the injury.

A public authority would be liable in strict liability for torts committed by it, following the rule in Ryland v Fletcher, as seen in the case of NEPA v Amusa. Also, it will be held liable for unlawful detention and assault, as seen in the case of Shugaba v Minister of Internal Affairs. Finally, it will be held liable for damages in a breach of statutory duty, as seen in the case of Nosiru Bello v AG Oyo and defamation, as seen in the case of New Nigeria Newspaper Ltd v Olu Abebekun.


7.0 PUBLIC OFFICERS PROTECTION ACTThe law which presently governs proceedings by and against the state in Nigeria is part of our inheritance from the colonial era. This Act has been in existence in Nigeria for a long time, and has protected public officers in the execution or intended execution of their duties.

To reduce the danger of exposure of ministries, departments and public authorities to litigations, the Public Authorities Protection Act was enacted in 1893, in England, to protect public authorities engaged in the discharge of responsibilities imposed upon them by Parliament. A limitation period of six months was laid down by the act for the bringing of an action against any public authority. Section 1 of the Act covers any action, prosecution, or other proceeding against any person for any act done in pursuance of execution, or intended execution of any Act of Parliament, or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Act, duty or authority. Later on in1939, the period under the Act of 1893 was extended to one year and in 1954, the legislation was eventually repealed.

The English statute of Public Authorities Protection of 1893 was received in Nigeria as a statute of general application. It was subsequently passed into Nigeria’s law in 1916. Section 2 of the Act provides that the action, prosecution, or proceeding, shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of a continuance of damage or injury, within three months next after the ceasing thereof; provided that if action, prosecution or proceeding be at the instance of any person for cause arising while such person was a convict prisoner, it may be commenced within three months after the discharge of such person from prison. However, the intendments of these Acts are different although they resemble each other in the sense that they both aim at protecting public authorities. The court, in the case of Alapiki v Governor of Rivers State, expressed that there is a vast difference between the Act applicable in Nigeria and the English Public Authorities Protection Act, 1893, in that the aims and objectives as well as purposes of these two Acts are different. Whereas the English Act was to protect public authorities engaged in the discharge of their duties i.e. in their official capacity, the Nigerian Act aimed at protecting public officers as individuals in the discharge of public duties i.e. in their individual capacity, as seen in the case of Momoh v Okewale. Secondly, there is a difference in the titles, where the Public Officers Protection Act is applicable in Nigeria; the Public Authorities Protection Act is applicable in England. Finally, there is clear difference in the limitation period for which an action can be instituted against a government official or public officer.


7.1 WHO IS A PUBLIC OFFICERThe Public Officers Protection Act of 1916 has been enacted for the protection of public officers. The question therefore facing the court is who a public officer is within the provisions of the Act. This issue of interpretation came before the Supreme Court in the case of Momoh v Okewale where the issue for legal determination was whether a bus driver for a Lagos City Council was a public officer within the Act and worthy of the protection under the Act. The court held that a bus driver was not a public officer and therefore not protected under the provisions of Section 2 of the Public Officers Protection Act.

A public officer was also defined under section 18 of the interpretation Act as a member of the public service of the Federation within the meaning of the Constitution of the Federation or the public service of a State. The provisions of the constitution in this respect, to consider include section 147 of the 1999 CFRN which provide for power of appointment to public service being vested in the Public service Commission of the Federation. Thus, a person must have been appointed thereto, wit certain exceptions, by the Public Service Commission of the Federation. This is similar with the case of the state. Another provision which has bearing with the interpretation act may be part II of the fifth schedule to the 1999 CFRN which provides for public officers for the purposes of the Code of Conduct.

There are two views as to the interpretation of a public officer in relation to the Act. One school of thought is of the view that the statutory provisions must be strictly construed so as to restrict the meaning of a public officer and the scope of the protection afforded to public officers by the Public Officer’s protection Act, as seen in the case of Onyia v The Governor-in-Council, Western Nigeria. The decisions backing up this view seek to confine the operation of the act to members of the public service on the ground that the Act protects “public officers” within the meaning of the Interpretation Act. This position was also followed in the case of Adegbite v College of Medicine of the University of Lagos. This view has been criticized by M. C. Okany on the grounds that the court in these cases relied on the short title of the Act which under section 3(2) of the Interpretation Act does not form part of the enactment and is intended for convenience of reference only.

On the other hand, this view holds that the provisions of the Act should be given a literal interpretation, in the sense that since apart from in the title of the act, the term “public officers” was not mentioned by any other portion of the Act, but uses the phrase “any person”. Thus, the aim of the law is clearly to protect not just public officers in the strict sense of the expression, but every person executing or intending to execute any law, public duty or authority, as seen in the case of Fasoro v Milbourne. In other words, the protection extends to employees of statutory corporations as much as it extends to members of federal or state public service, as also seen in the case of Obiefuna v Okoye as well as other cases as Lagos Municipal Transport Service v Ibechim and also Ekemode v Alausa.

It can be seen that the judicial attitude towards the interpretation of a public officer in relation to the Act tends positively towards the latter view as this is more logical and reasonable.


7.2 PROTECTION UNDER THE ACTIt has been expressed that the Public Officers Protection Act is one for the protection of public officers in their individual capacity. This Act protects public officers against any action, prosecution or other proceedings on two grounds:

a) For any act done in pursuance or execution or intended execution of any law, public duty or authority; andb) For any alleged neglect or default in the execution of any law, duty or authority.

This Act requires an injured party intending to seek redress to give prior notice of his intention to the public officer about to be sued and to commence the action within three months. The period of limitation normally begins to run from the date of the act, neglect or default which occasioned the injury or damage in respect of which any claim is made, as seen in the case of Fasoro v Milbourne and Onyeji. Where, however, the injury or damage is of continuous nature, the time starts to run from the end of the legal injury. That it, the period of limitation begins to run on seizing of such continual act which caused the injury and not from the end of the painful effect or injury resulting from the tortuous act or omission, as seen in the case of Obiefuna v Okoye as well as that of Ekeogu v Aliri. In both cases, the court held that the end of the hospital treatment did not mark the beginning of the period of limitation but after the incident itself. This situation was also seen in the case of Adigun v Ayinde.

As stated earlier, the protection of the Act is available to any person who commits an act or for an alleged omission or neglect in pursuance to the execution of a public duty, law or authority. In respect of the commission of an act, the protection of the Act is only available to a person when he commits an act in the process of executing or intended execution of public duty, law or authority. It also extends to omissions occurring in the course of discharging or exercising public duty, law or authority. It should be noted that a total failure by the public officer to discharge his duty or to exercise the authority or power is also within the scope of the protection. Summarily, the Act protects wrongs, whether acts or omissions, which are expressly or impliedly authorized by the authority imposed on the public officer as well as wrongs resulting from unauthorized but reasonable method of executing a law, public duty or authority, as seen in the case of Ekeogu v Aliri as well as Ekemode v Alausa.

7.3 EXCEPTIONS TO PROTECTION UNDER THE ACTi. One way in which a public officer would not be covered under the provisions of the Act is where the act which

causes injury is in continuance. This exception contemplates a situation where there is no probability of seizure of the act which is causing injury…

ii. The protection of the Act cannot also be claimed in respect of any wrong committed outside the scope of authority or duty of the defendant. Thus, for instance, an employee cannot go outside the expressly or impliedly authority given to him to execute a public duty, law or authority nor can he commit an act which is in no way associated with his method of executing a public duty, law or authority. In the case of Ekemode v Alausa, the


court held that the deliberate breaking up of the canoe after its removal cannot be regarded as either necessary or incidental to the duty imposed upon the defendant by his employer for the purpose of exercising its authority.

iii. The protection available under the act cannot avail a public officer who in the process of executing or intending to execute a public duty, law or authority, commits an act or omits a responsibility where this is done out of spite, malice, bad faith or acts which are criminal in nature. Therefore, to enjoy the protection of the Act, the defendant should have acted in good faith or in genuine desire to execute a law, duty or authority.

It should, however, be noted at this juncture that the courts do not consider whether or not a defendant is entitled to the protection of the act, unless he specifically claims to be protected, as seen in the case of Adams v Ibadan District Council. Where the defendant claims the protection of the Act, the onus is on him to prove that he was acting or omitting in pursuance to the execution or intended execution of public duty, law or authority. Subsequently, where the defendant has proved the above, the onus shifts to the plaintiff to prove the defendant was not in fact acting or intending to act in execution of public duty, law or authority but was using his pretended authority to achieve an improper purpose outside the contemplation of the law, as seen in the case of Nwankwere v Adewunmi. This principle of good faith was laid down in the English case of Scammel and Nephew Ltd v Hurley where the court stated that the Act is no defence where the acts complained of are not done in intended execution of a statute, but only in pretended execution thereof. This rule was also applied in the Nigerian case of Yabugbe v C.O.P. where the court held that it couldn’t have been the intention of the parliament to shield public officers from criminal prosecution for criminal offences committed by them in the guise of performing their official duties by limiting the time to initiate prosecution to only three months, for this would be absurd and ridiculous as expressed by Justice Uwais. Additionally, in the case of Nwankwere v Adewunmi the court expressed that the law is designed to protect the officer who acts in good faith and does not apply to acts done in abuse of office and with no semblance of legal justification.

iv. The act does not also apply to cases of recovery of landv. The protection under the Act does not cater for cases of breaches of contract, as seen in the case of Bureau of

public enterprises v ReInsurance acquisition…

7.4 HARDSHIP OF ACT AND NEED FOR REFORMIt is general knowledge to every lawyer that the purpose of any good legislation is to promote justice and fairness as well as to facilitate interaction of the entire citizenry within the State. In line with this, any law which is enacted with the aforementioned in mind, but which turns out to negate the entire rationale is liable to amendment or repeal. Following the judicial decisions on the provisions of the Act, it can be seen that the Act has done more harm than good in the society.

This Act unnecessarily shields the public officer from wrongs which he has committed. In the case of Obiefuna v Okoye where the court held that although the painful effect of the legal injury continued until eight months later, the actual injury did not continue beyond the date of the accident. This strict application can be said to have perpetuated unfairness. Although the decision is technically correct, it is manifestly unjust, having little or no bearing on the attitude of the people the law is meant to protect. Also, in the case of Ekeogu v Aliri, it was


expressed, although surprisingly, that the issue whether there was malice or not in his action would be irrelevant. This is however inconsistent with other decisions as Yabugbe v C.O.P. as well as Scammel and Nephew v Hurley.

The case which drew a lot of pitiable sentiments and was still given a strict interpretation was that of Adigun v Ayinde. There is no doubt that the Supreme Court was right in arriving at the decision given in this case, what is urged is that the law itself as it is applied works great hardship and injustice on people and is completely unsatisfactory. It was expressed by an author, Ezike Obimma, that if a court as high as the Supreme Court will make pronouncements on the harshness and injustice of the Act, what more evidence is needed to show that the Act is long overdue for repeal.

The main culprit in the aforementioned cases is not the court giving the pronouncement, for these decisions can be justified from certain angles, but the Act itself under which the decisions were based. For in these cases the plaintiff had to run around to get themselves treated from the injury only to come back to seek redress and be told that they would get no compensation because their action had been statute barred. What a pity.

Looking at England, from whom we originally received this Act, it can be seen that there was progressive deviation from this law in response to modernization; from the extension of limitation period from six months to one year in 1939, to finally repealing the Act in 1954. It is of the opinion of several people that if we had followed England in enacting the statute, we should follow suit in repealing the Act especially since the law is obviously doing more harm than good.

Several reasons were given for the need of an amendment or repeal by Prof Ilochi Okafor, one of which includes that the conditions and structures of our society undeniably makes the three month period too short. Secondly, the majority of the public are uninformed and illiterate and therefore unaware generally that their remedy will be completely lost if no immediate action is taken. Finally, the Act seems to presume that the State can do no wrong which is obviously a wrong presumption.

Conclusively, it may be said that the Nigerian law relating to private claims against the State is out of date and cries out loudly and persistently for a reform which would match it with the changing social and economic conditions of the country.


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unilaglss.files.wordpress.com€¦ · Web viewJUSTICE OPUTA CHAMBERS NOTE SERIES. ADMINISTRATIVE LAW II. FROM THE ACADEMIC SECRETARIAT. The Justice Oputa Chambers is one of the