Judicial Review in Nigeria: A Practical Guide for General Counsels

For General Counsels overseeing subsidiaries in West Africa or managing multi-jurisdictional risk, understanding the mechanics of judicial review in Nigeria is essential. When a federal agency, state regulator, or government official issues a directive that disrupts business operations, knowing how to challenge the legality of that act rather than its merits can be critical in protecting corporate interests.

What Does Judicial Review Mean in Nigeria?

The principles of judicial review in Nigeria are largely derived from the United Kingdom, while being shaped by Nigeria’s own constitutional framework. At its core, judicial review is a specialized judicial process in which a court examines the lawfulness of decisions or actions taken by public authorities. In essence, judicial review challenges how a decision was made, not the substantive correctness of its outcome. Courts are not concerned with whether the regulator’s decision was the best commercial choice or the “right” policy, but whether the decision-maker had the legal authority to act and followed the proper procedures.

Nigerian courts have distinguished judicial review from a standard appeal. As the Supreme Court explained in ACB v. Nwaigwe (2011):

“An appeal is defined as an invitation to a higher Court to review the decision of a lower Court to find out whether on the proper consideration of the facts… that Court arrived at a correct decision. On the other hand, judicial review in Nigeria is the supervisory jurisdiction of the High Court exercised in the review of the proceedings, decisions and acts of inferior courts and tribunals and acts of governmental bodies.” — Per Onnoghen, JSC.

Constitutional Foundation: Sections 6(6)(b) and 4(8)

The power of Nigerian courts to review administrative actions is enshrined in the 1999 Constitution (as amended). Section 6(6)(b) grants courts the authority to adjudicate matters affecting the civil rights and obligations of any person, including corporate entities, while Section 4(8) prohibits the government from passing laws that attempt to oust the courts’ power of review. For General Counsels, these provisions provide a constitutional safeguard as it ensures that Nigerian courts can act as an effective check on executive overreach.

Grounds for Judicial Review

Nigerian courts follow traditional common law grounds for judicial review, which remain highly persuasive in litigation. A claim may be based on illegality, where a public body acts beyond the powers granted to it by law; irrationality, where a decision is so unreasonable or disproportionate that no reasonable authority could have made it; or procedural impropriety, where a public body fails to observe the rules of natural justice or statutory procedural requirements. Section 36 of the Constitution guarantees the right to a fair hearing, which forms a critical part of procedural fairness in administrative decision-making.

Procedural Requirements

Judicial review in Nigeria is time-sensitive and procedurally strict. Claims generally must be filed promptly and, in any event, within three months from the date the grounds for the application first arose. The process generally involves two stages. At the Leave Stage, the applicant applies ex parte for permission to bring the claim, allowing the court to filter out frivolous or unmeritorious cases. Once leave is granted, the Substantive Stage follows, during which the High Court conducts a full hearing. Remedies that may be granted include mandamus, to compel a public body to perform a legal duty; certiorari, to quash an illegal decision; prohibition, to prevent ongoing or future unlawful actions; and declaratory relief, to formally declare the legal position regarding a public authority’s act.

Practical Implications for General Counsels

Judicial review focuses on whether the decision-maker had the power to act and followed proper procedures, not on whether the decision was substantively correct. Acting quickly is critical, as delay can result in dismissal of the application regardless of its merits. Claims should be grounded carefully, clearly articulating the legal bases for review and supported by contemporaneous evidence. Understanding the constitutional and procedural framework allows General Counsels to challenge unlawful administrative actions effectively while mitigating business disruption.

Conclusion

For corporations operating in Nigeria, judicial review is a vital tool to ensure that public authorities act within the scope of their powers. By understanding the distinction between legality and merits, the constitutional underpinnings of judicial review, and the procedural requirements for bringing a claim, General Counsels can protect their organizations against unlawful regulatory interventions while navigating the complexities of the Nigerian legal system.