Administrative Law II Joc Note Series (Second Semester) - 1-1

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DOCENS PRACTICUS DOGMATA LEGIS

…FROM THE ACADEMIC SECRETARIAT
ACKNOWLEDGEMENT
The Justice Oputa Chambers being the best Chamber in the Faculty of Law, University of Lagos, is
one of the very few associations in the faculty that places premium importance on the academic
welfare of its members.
We were tempted to make this material privy to only members of the Chamber, but we realized the
need for everyone to be his “brother’s keeper” for we are in competition with no one we hope we
all make it.
In line with our mandate, the Oputa Note Series is designed to help achieve better understanding of
the topics treated in class. This note should not be taken as all encompassing and as such should not
be studied independently of other materials; it is simply intended as an aid in studying for exams.
Students are advised to consult other academic materials.
It is hoped that students would avail themselves this note in fulfillment of their goal to attain distinction
in their academics.
ACADEMIC SECRETARY
08066002411
OPARA CHINEDU MIRACLE
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200LEVEL NOTES
PUL 222
ADMINISTRATIVE LAW II
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TABLE OF CONTENTS
1.1 ADMINISTRATIVE ADJUDICATION .......................................................................................................................... 5
1.2 CONTROL OF ADMINISTRATIVE ADJUDICATION ............................................................................................... 7
1.3 JUSTIFICATION OF ADMINISTRATIVE ADJUDICATION.................................................................................... 9
1.4 CRITICISMS OF ADMINISTRATIVE ADJUDICATION ........................................................................................... 9
1.5 CONSTITUTIONAL REQUIREMENT OF FAIR HEARING IN ADMINISTRATIVE .................................. 10
ADJUDICATION ...................................................................................................................................................................... 10
2.0 EXHAUSTION AND RIPENESS.................................................................................................................................. 13
2.1 EXHAUSTION ................................................................................................................................................................... 13
2.2 RIPENESS .......................................................................................................................................................................... 14
3.0 LOCUS STANDI ................................................................................................................................................................ 14
3.1 LOCUS STANDI AND ENFORCEMENT OF ADMINISTRATIVE REMEDIES .............................................. 17
4.0 PRE-ACTION NOTICE ................................................................................................................................................ 18
5.0 JUDICIAL REMEDIES FOR ADMINISTRATIVE ACTIONS ................................................................................ 20
5.1 PREROGATIVE ORDERS .............................................................................................................................................. 21
5.2 CERTIORARI..................................................................................................................................................................... 21
5.3 PROHIBITION .................................................................................................................................................................. 23
5.4 MANDAMUS ..................................................................................................................................................................... 24
5.5 WRIT OF HABAES CORPUS ........................................................................................................................................ 25
5.6 INJUNCTION ..................................................................................................................................................................... 26
5.7 DECLARATION ................................................................................................................................................................ 27
6.0 COMMON LAW REMEDY- DAMAGES.................................................................................................................... 28
7.0 PUBLIC OFFICERS PROTECTION ACT ................................................................................................................... 28
7.1 WHO IS A PUBLIC OFFICER ....................................................................................................................................... 29
7.2 PROTECTION UNDER THE ACT ............................................................................................................................... 30
7.3 EXCEPTIONS TO PROTECTION UNDER THE ACT ............................................................................................ 31
7.4 HARDSHIP OF ACT AND NEED FOR REFORM.................................................................................................... 32
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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.
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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
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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 quasijudicial
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 SaroWiwa.
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
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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.
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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
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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
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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
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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
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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 RIPENESS

The 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 EXHAUSTION
Often 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
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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 RIPENESS
This 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 STANDI

It 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.
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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
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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
16
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
17
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.
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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
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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
noncompliance 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 ACTIONS

In 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.
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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.
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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
22
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;
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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; and
4. 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
24
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.
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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;
26
6. The applicant must make an undertaking as to damages to indemnify or compensate if the substantive suit
proves to be vexatious; and
7. 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.
27
6.0 COMMON LAW REMEDY- DAMAGES
According 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 ACT

The 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
28
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 OFFICER

The 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
29
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 ACT

It 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;
and
b) 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
30
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 ACT

i. 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
31
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 land
v. 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 REFORM
It 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
32
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.
33

Administrative Law II Joc Note Series (Second Semester) - 1-1

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Administrative Law II Joc Note Series (Second Semester) - 1-1

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1

DOCENS PRACTICUS DOGMATA LEGIS

OPARA CHINEDU MIRACLE

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

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

1.2 CONTROL OF ADMINISTRATIVE ADJUDICATION

Constitutional limitation: One of the ways in which administrative adjudication can be

1.3 JUSTIFICATION OF ADMINISTRATIVE ADJUDICATION

After having discussed the various classifications of administrative adjudicatory bodies, it is

Requirement of expertise – Matters arising for administrative determination often require

Speed – As opposed to the incessant delays and adjournments experienced in ordinary

Informality – Administrative adjudication process is informal as opposed to the technical

Inadequate legal knowledge – One of the arguments against administrative adjudications

1.5 CONSTITUTIONAL REQUIREMENT OF FAIR HEARING IN ADMINISTRATIVE

2.0 EXHAUSTION AND RIPENESS

3.0 LOCUS STANDI

3.1 LOCUS STANDI AND ENFORCEMENT OF ADMINISTRATIVE REMEDIES

4.0 PRE-ACTION NOTICE

- The cause of action;

5.0 JUDICIAL REMEDIES FOR ADMINISTRATIVE ACTIONS

1. The person or body to whom it is directed must be performing a public duty;

5.5 WRIT OF HABAES CORPUS

1. The plaintiff must show a strong prima facie case;

7.0 PUBLIC OFFICERS PROTECTION ACT

7.1 WHO IS A PUBLIC OFFICER

7.2 PROTECTION UNDER THE ACT

7.3 EXCEPTIONS TO PROTECTION UNDER THE ACT

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