Judicial Review

It applies to bodies exercising public functions: ministries, agencies, regulators, licensing authorities, universities, professional disciplinary bodies and local governments.

Typical Nigerian applications involve a licence refused or revoked without a hearing, a professional body striking somebody off without following its own procedure, a university expelling a student without an opportunity to answer, an appointment or promotion made in breach of the governing rules, or a regulator imposing a penalty outside its powers.

The remedies are the prerogative orders. Certiorari quashes a decision already made. Prohibition restrains a body from acting outside its powers. Mandamus compels a body to perform a public duty it has failed to perform. A declaration and an injunction may be sought alongside, and damages in some circumstances.

The process begins with an application for leave, supported by an affidavit and a statement of the grounds. Leave is a filter, and where it is granted the substantive application follows.

Two features catch applicants out.

The first is time. Applications for judicial review carry short periods under the rules of court, considerably shorter than ordinary limitation periods, and they run from the decision complained of. An applicant who spends four months writing letters of complaint may find the window closed. Where the respondent is also a public officer, the Public Officers Protection Act adds its own short period.

The second is standing. The applicant must have sufficient interest in the matter. Nigerian courts have taken a more generous view of standing in public interest matters than they once did, but a person with no connection to the decision may still be shut out.

There is also an overlap with fundamental rights proceedings. Where the substance of the complaint is the breach of a constitutional right, the Fundamental Rights Enforcement Procedure Rules provide a route with no limitation period. Where the complaint is that a public body exceeded its powers or failed to hear somebody, judicial review is the natural fit. Choosing the wrong route wastes time you may not have.

Enforcement is the familiar Nigerian problem. An order of mandamus against an agency that simply does not comply leaves the applicant with a further application rather than a result.

Three ways to challenge a decision, suited to different complaints.

An appeal challenges the merits. It goes to a higher court, argues that the decision was wrong, and is available only where a right of appeal exists.

Judicial review challenges the process and the power. It does not argue that the decision was wrong, only that the body was not entitled to reach it in that way, and the usual result is that the decision is quashed and retaken.

A fundamental rights action challenges a breach of a constitutional right. It has its own procedure, no limitation period, and can be brought on behalf of somebody else.

So a licence revoked without a hearing is judicial review. A detention without charge is a fundamental rights action. A judgment you think misapplied the law is an appeal. Cases sometimes sit across two of them, and the choice affects both the time limit and the remedy.

The court will not substitute its own decision. Success usually means the matter goes back to the same body to be decided again, and the body may reach the same conclusion lawfully the second time.

The irrationality threshold is high, so a decision that is merely poor is not reviewable.

Time limits are short and strictly applied, which defeats more applications than any substantive point.

Judicial review is also generally a remedy of last resort. Where an internal appeal or another statutory route exists, a court may decline to entertain an application until it has been exhausted.

And it does not compensate. Damages are available only in limited circumstances, so an applicant seeking money is often in the wrong forum.