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This project is on Judicial review of executive and legislative actions in Nigeria; 1999 to 2012. The problem of power has been a constant source of anxiety in all contemporary societies which are committed to the principles of rule of law.1 It is the same anxiety that has induced such writers as John Locke2 and Montesquieu3 to conceive the idea that political liberty would be an illusion if powers were not demarcated and placed in different hands. Recent commentaries, interpretations, qualifications and critiques on the fatigued doctrine of the “separation of powers” are not hard to find.4 Even if the whole of governmental powers can neatly and practically be classified as, legislative, executive and judicial, few will deny that the administrative agencies today wield all those powers. They have powers of legislation through the making of rules, regulations, orders, and statutory instruments, etc which for all intents and purposes, are valid and capable of imposing sanctions as the Acts of the Legislature. They also conduct formal and informal adjudication on matters affecting the rights of individuals. They reign in their coveted field- administration and what is more, they possess certain coercive powers of investigation in the guise of inspection and supervision as well as powers of prosecution, discovery and subpoena which they reserve as secret weapons to be used when, in their absolute discretion, the occasion demands.
In some cases, wide powers have been conferred on Ministers to make such regulations as may be required from time to time for the carrying into effect of the provisions of the Act6 as pungently articulated in, “the Emergency powers Act of 1961 and Research Institute Act 1964, section 23 (1). In others, rulemaking is permitted only on certain subjects enumerated in the relevant statute.7 The Emergency Powers Act 1961, authorized the President-in-Council to make ‘such regulations as appears to him to be necessary and expedient for the purpose of maintaining and securing peace, order and good government in Nigeria or any part thereof. The expression, “peace, order and good government” arguably comprehends the full amplitude of the powers possessed by the parliament itself,8 yet such powers were granted to the Executive. The President-in-Council in a sense constituted a parliament. It would appear that this sort of power went beyond the permissible limits of delegation. However, the Supreme Court did uphold its validity in Williams v. Majekodunmi9 when it held that “under S.6 of the same Act, the President-in-Council; was empowered to amend, suspend or modify the law enacted by any legislature in the country. Moreover, any regulation made was to have effect not withstanding anything inconsistent therewith, any such regulation shall to the extent of such inconsistency have no effect so long as such regulation remains in force.”
However, in the Nigerian example, what might be called a safeguard against arbitrariness was that executive regulations and orders were to be laid before parliament and were to cease to have effect after four months unless approved by resolution of both Houses of the National Assembly10. With the usual ‘non prejudice’ clause and the doubt which has rightly been expressed as to whether there is anything like adequate parliamentary control of delegated legislation in Nigeria,11 the purported safeguard appears to be nothing but a sham.
Formal adjudication constitutes another important aspect of administrative powers. Although law-making is primarily the function of parliament, the complexity of modern government makes it inevitable that there should be a considerable amount of legislation by the administration. By the same token, even though judicial power is traditionally and constitutionally the preserve of the ordinary court12, the delegation of adjudicatory powers to the administration is likewise an unavoidable trend and argument which are usually advanced to justify the development of administrative justice in Britain which also apply to a great extent in Nigeria. It is not surprising therefore that there have come into existence a plethora of administrative tribunals, boards, commissions and other bodies which exercise judicial or quasi-judicial powers conferred upon them by various statute.13 In addition, there are professional or vocational bodies which exercise disciplinary and other forms of control over their members. Quite apart from these statutory bodies and tribunals, the administrators in the day-to-day performance of their duties adjudicate on matters involving the rights of individuals. In this process, they exercise wide discretionary powers and the 1question of safeguards against abuses and arbitrariness is one of the perennial problems of judicial control of administrative action14.
1.2. The meaning of Judicial Review:
Judicial review refers to that power which the courts have to declare null and void any action of the Executive or Legislature which is contrary to the provisions of the Constitution. It could also be said to be the power of a court to examine the acts of the branches of government; lower courts, public or administrative authorities and the ability to uphold or reject such acts where necessary. The essence of Judicial Review by Court is that the Court plays the role of unbiased umpire in any governmental arrangement. Judicial review in this direction therefore, could be rightly said to be the court’s control of the exercise of powers by government or public authorities. In achieving the rationale for judicial review, the court usually examines the decisions and procedures adopted in arriving at any decision.
As Nwabueze puts it:
Judicial Review is the power of the court in appropriate proceeding before it to declare a government measure either contrary to, or in accordance with the Constitution or rendering the measure invalid or void or vindicating its validity and so putting it beyond challenge in the future.
This simply means that the courts are conferred with certain powers by which they challenge the excessive acts of the executive and legislature. This exercise of their powers is unique in the sense that it is devoid of self-interest and bias which the Executive and Legislature may have in upholding their actions. The doctrine of judicial review originated from America where it was illustrated in the case of Marbury v. Madison17 which is considered to be the locus classicus on this point of law. In this case, Thomas Jefferson, a Republican defeated John Adams, a Federalist. Jefferson was to assume office on 4th of March, 1801. Adams, the defeated Federalist had on 20th of January, 1801 nominated John Marshall, his Secretary of state as the fourth Chief Justice of the United State of America. John Marshall assumed his position as Chief Justice and still retained his position as Secretary of State until the end of Adam’s regime. On March 3,1801, the Senate had settled with the confirmation of the various appointments made. It was signed by John Adams and sealed by the Secretary of State, Marshall. But some of the appointments were undelivered, including that of Williams Marbury when Thomas Jefferson assumed the office President of the United States of America the following day. The new President ordered his new Secretary of state to withhold the delivery of the appointment. Marbury and some others sought a writ of mandamus in the Supreme Court to compel Madison to deliver the ordered commissions. Madison was ordered by the court to show cause why the writ of mandamus should not be issued. As the case was still pending, the new Republican Congress, angry at Adam’s efforts entrenched a Federalist judiciary and at the Federalist courts’ order against a Republican cabinet officer moved to repeal the Circuit Act. The Federalist congressmen argued that repeal would be unconstitutional as violative of Article 111- assurance of judicial tenure “during good behavior” and the constitution’s plan for separation of powers assuring the independence of the Judiciary. This was the first time the power of the judiciary was greatly challenged. Before this, it had been the Republican who had sustained this power as a desirable curb on congressional aggression and encroachment on the rights of the stakeholders and they had been vociferous in their complaints and protests at the failure of the court to hold the American sedition laws unconstitutional. In 1802, in order to counteract and dispel the Federalist arguments that the Repeal Bill was unconstitutional and would be so held by the court, the Republicans advanced and canvassed the proposition that the court did not possess the power or jurisdiction to handle the matter.
In delivering the judgment of the Court, Chief Justice Marshall held that ‘no cause has been shown and, the present motion is for a mandamus’. The peculiar delicacy of this case, the novelty of some of its circumstances and the real difficulty attending the points which occur in it requires a complete exposition of the principle on which the opinion is to be given by the court:
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