The Obaseki Saga: A Case of a Lethargic Approach to Judicial Review

Preamble
Exactly a fortnight ago, Ikepo Braithwaite, the Editor of This Day Lawyer, in her weekly column published on 23rd June, 2020 and captioned “Party Screening: When Jurisdiction Trumps Justice” questioned the position taken by the Supreme Court in APC v Engr. Suleiman Aluyi Lere 2020 1 NWLR Part 1705, in which it was alluded that the remedy of a Party dissatisfied with the screening process while seeking to become a Political Party’s candidate at an election, was to leave the Party and seek their ambitions elsewhere. I am in total agreement with the Editor, that this appears to be contrary to Section 6(6)(b) of the Constitution which provides that the judicial powers:

“shall extend to all matters between persons, or between government or authority and to any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person”.
Apart from being contrary to the Constitution, the decision in Lere (supra) appears to oust one of the most significant developments of the Common Law in recent times, namely Judicial Review.

What is Judicial Review?
Judicial Review is a legal procedure whereby acts, decisions and omissions by bodies performing functions which affect principally the activities of individuals are challenged in court. It has been described by Lord Diplock in R. v Inland Revenue Commissioners ex p. National Federation of Self-Employed [1982] A. C. 617 at 641 as the greatest achievement of the English Courts, in living memory. The ranges of activities to which the principles of public law apply, are extensive. Any act by a public authority, such as a decision by a Federal, State or Local Government; a decision by the myriads of bodies exercising powers devolved upon them by Statute, and in some cases, Convention; is amenable to the remedy of Judicial Review. In the last forty years, there has been a dramatic expansion and modernisation of the principles of Judicial Review, in most Commonwealth jurisdictions. Curiously, this is far from the case here in Nigeria. There have been very few applications for Judicial Review in the last twenty years, despite a return to civil rule in 1999. To the best of my knowledge, all State High Court Civil Procedure Rules make extensive provision for Judicial Review, and Order 34 of the Federal High Court Civil Procedure Rules 2019 provides extensively for applications by way of Judicial Review in our Federal Courts.

A crucial question which must be considered in all cases, is whether the remedy of Judicial Review is available at all, or whether one must proceed in private law, if that is available. The importance of this question is such that, if one arrives at the wrong answer, the challenge may be out of time for either public or private law relief. The answer to this question has engaged the courts on numerous occasions in the recent past, although not necessarily here in Nigeria, where the development of Judicial Review has been somewhat stagnant. In order to bring a Judicial Review challenge to a decision, there has to be a “public law element” to the prospectively challenged body, and thus, its decision. In a number of cases, the answer is obvious. A government department or local authority, is plainly amenable to Judicial Review. A private corporation is not.

In the case of Godwin Obaseki and the APC, the question that springs to mind is whether a Political Party is a private or public body. I would argue that, in as much as our Constitution attempts to regulate Political Parties as provided for under Sections 221 -229 of the 1999 Constitution (as amended) alongside the Electoral Act 2010, it should come under the realm of public bodies. Another significant point is the fact that, in screening candidates for the position of President/Vice President, Governor/Deputy Governor, membership of the National Assembly, State House of Assembly or Local Government Council, a public function is being performed. Section 229 of the 1999 Constitution (as amended) buttresses this point, by providing inter alia:

“………Political Party includes any association whose activities include canvassing for votes in support of a candidate for election to the office of President, Vice President, Governor, Deputy Governor or membership of a legislative house or of a local government council”.
In other words, by screening candidates for election into the office of President, Vice-President, Governor, Deputy Governor or membership of a legislative house or local government council, a screening committee by ensuring that candidates conform with the provisions of the 1999 Constitution (as amended), are in effect, performing a public function.

The Public Interest test
The test for considering whether a decision should be subject to Judicial Review, is whether anyone was acting in the exercise of a public duty. Although, there are not many cases in our Jurisprudence here in Nigeria that help us out in this regard, the Common Law is awash with decisions on this point. One of the most important cases on the question of whether a decision has a sufficient public law element, is the English case of Council of Civil Service Unions v Minister for the Civil Service [1985] A. C. 374. (CCSU). In the CCSU case, the Applicants were a Civil Service trade union, and six members who sought Judicial Review of the then Prime Minister’s decision, who was also the Minister for the Civil Service to vary the terms and conditions of service of the staff employed at the Government Communications Headquarters, so as to no longer permit them to be members of trade unions.

They had been members of such unions since 1947. There had been no consultation either with the staff or their trade unions, about this change to their conditions. The principal issue in the case was whether or not executive action could be the subject of Judicial Review, because it was derived from the prerogative. Additionally the Minister contended that the decision was taken on the grounds of national security, and accordingly, the court should not intervene. At first instance, Glidewell J. allowed the application and made a declaration. His decision was overturned by the Court of Appeal, but the initial holding was confirmed by the House of Lords. It was held that, the prerogative was subject to Judicial Review.

On the principal issue, namely whether or not the exercise of the prerogative encapsulated in an Order in Council was reviewable, the House of Lords held that, the exercise of the prerogative through a statutory (or more accurately quasi statutory) medium was subject to Judicial Review:

“But whatever their source, powers which are defined, either by reference to their object or by reference to procedure for their exercise, or in some other way, and whether the definition is expressed or implied, are in my opinion, normally subject to judicial control to ensure that they are not exceeded”.
Lord Diplock said:
“to qualify as a subject for Judicial Review the decision must have consequences which affects some person (or a body of persons) other than the decision maker, although it may affect him too. It must affect such other person either:
(a) by altering the rights or obligations of that person which are enforceable by or against him in private law; or
(b) by depriving him of some benefit or advantage which either (i) he had in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do until there has been communicated to him some rational grounds for withdrawing it on which he has been given an opportunity to comment; or (ii) he has received assurance from the decision-maker that it will not be withdrawn without giving him first an opportunity of advancing reasons for contending that they should not be withdrawn… for a decision to be susceptible to Judicial Review, the decision-maker must be empowered by public law (and not merely, as in arbitration, by agreement between private parties) to make decisions that, if validly made will lead to administrative action or abstention from action by an authority empowered by law with executive powers, which have one or other of the consequences mentioned in the preceding paragraph. The ultimate source of the decision-making power is nearly always nowadays a statute or subordinate legislation made under the statute; but, in the absence of any statute regulating the subject-matter of the decision, the source of the decision-making power may still be the Common Law itself i.e. that part of the Common Law that is given by the Lawyers the label of ‘the prerogative’.”
Conclusion

Going by the above criteria, Judicial Review ought to have been the appropriate remedy in the matter of Governor Godwin Obaseki and the APC. Almost all the issues highlighted by Lord Diplock in the CCSU case, apply to Godwin Obaseki. How and why should our law be any different from the Common Law? Godwin Obaseki questioned the fact that he was not given a fair hearing, which of course is enforceable in private law. The mere fact that Political Parties are regulated by the 1999 Constitution (as amended) and the Electoral Act 2010, creates a public law element.

Godwin Obaseki also has a legitimate expectation because there was a benefit or advantage which in the past the decision-maker, namely the APC screening committee, had permitted him to enjoy in that they accepted and did not question the very same academic credentials that were given to them earlier. He had also reportedly received assurances from the decision-maker that this benefit or advantage will not be withdrawn, without being given the opportunity to argue why they should not be withdrawn. Finally, the power of a Political Party to screen candidates is regulated by the Electoral Act 2010. Section 87(9) of the Electoral Act 2010 provides that:

“an aspirant who complains that any of the provisions of this Act and guidelines of a Political Party has not been complied with in selection or nomination of a candidate of a Political Party for election, may apply to the Federal High Court or the High Court of a State or FCT for redress”.
Finally, Article 33 paragraph xiv of the APC Constitution defines aspirant as:
“any person who has picked the Party’s nomination forms, seeking to participate in either the primary or Party election”.

Thus, Judicial Review is available where (a) private rights are affected or (b) legitimate expectations are affected and (c) the decision making body is empowered by “public law”. Consequently, on this analysis, any decision affecting either an individual or a group is likely to be within the ambit of public law, and thereby, subject to Judicial Review. I have no doubt that, considering the arguments of the Editor of This Day Lawyer and those I have canvassed above in support of her contention, the case of Lere (supra) will be revisited by the Supreme Court sometime in the future. It is also inconceivable, that the Supreme Court were not aware of the above arguments.

The Supreme Court, in my opinion, are over-burdened, and are therefore, reluctant to deal with the myriad of screening cases of contestants in Political Parties, in addition to Election Petition cases. Perhaps, the time is now rife for us as a Country to ease their burden and consider having a full time Constitutional Court which seems essential, if our Constitution is to have specific and legally binding effects on citizens’ rights and political processes, such as elections and legislative procedures.