Judicial Review

Stephen Kola Balogun

Nigerian law is where it is today, because of our refusal/inability to properly embrace the concept of judicial review. Most common law jurisdictions have established a procedural dichotomy between public law actions and private law actions, meaning that you can’t use private law methods to institute a public law action and vice versa. Nigeria does not yet have such a practice direction in place and now, perhaps, is the best time to consider introducing such a practice direction. 

Judicial review is the conventional methodology, used to institute public law actions. You require leave of court to do so, and the test is whether you have sufficient interest in the matter. An application for judicial review also serves as a stay of proceedings. The court then reviews the decision of the public law maker, to ascertain whether there has been either a breach of fair hearing (fundamental rights), procedural wrongs and/or  illegality. In short, judicial review would have captured and embraced all the legal issues at stake in the Kano Emirates saga, without turning the law into a runaway road circus.  This is most unfortunate. 

Why don’t we embrace judicial review? The answer is quite simple. The Grandees who trained the modern Nigerian Lawyer like Rotimi Williams, GOK Ajayi, Kehinde Sofola etc rarely used this procedure. Why? Because they largely practiced under military governments, and it was impracticable to review the decisions of the military. 

However, in a democracy it’s essential, particularly in trying to keep to the principles of separation of powers. In short the Judiciary is not imposing its decision on the Executive and/ or the Legislature as the case may be. They are simply reviewing their decision, to ensure they have complied with existing and established laws.  This is precisely why a private law action is not the ideal way to institute a public law action. I therefore, call upon the National Judicial Council (NJC), the Nigerian Bar Association (NBA) and other relevant stakeholders, to consider having a procedural dichotomy practice rule on instituting public and private law actions without further delay.