8
JUDICIAL REVIEW OF LEGISLATION
By
Vivian C. Madu (Mrs)
Introduction
Legislation
Legislative power
is simply the law making powers of a
legislative body whose primary functions includes power to
make new laws, alter existing ones, guard and repeal laws. The
legislature has the constitutional prerogative to make laws and
that power is reposed exclusively in such body even though it
may be delegated to some agencies in the Executive department
for operational conveniences but the ultimate legislative
authority is vested on the legislature and within this context, it is
able to maintain its control over all delegated legislative
activities. Section 4 (1) allocates this power quite clearly in the
following terms: “The legislative powers of the Federal
Republic of Nigeria shall be vested in the National Assembly
for the Federation which shall consist of a Senate and a House
of Representatives”. The purposes of these powers where drawn
up in subsection 2 thus:
The National Assembly shall have power to make
laws for the peace, order and good governance of
the Federation or any part thereof with respect to
any matter included in the Exclusive Legislative
List set out in Part 1 of the Second Schedule to
this constitution.

Research Fellow, Nigerian Institute of Advanced Legal Studies Lagos.
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The next in authority is the primary legislation which
consists of pre-constitution statutes consistent with the
Constitution and the statute validly made by the legislatures
under the Constitution. Legislators are the authors of statutes
and the ordinances are issued by the heads of the Executive
under a specific constitutional power and subject to
constitutional limitations which are severe. But the author of
subordinate legislation and of executive action instructions,
orders or directions is the same, namely the Executive. The
subordinate legislation is reviewable like ordinary legislation
that is, on the grounds of ultra vires and unconstitutionality.1
A legislature that proceeds to pass a law, the contents and
purpose of which are in flagrant violation of the spirit and letter
of the Constitution is not acting within the ambit of the law
making powers granted it.2 The legislature in its law making
function is limited by procedural requirements for law making
as set out in the Constitution. The process involves two kinds of
legislative proposals otherwise called bills.3 There is also, in this
connection, the requirement that the legislature should work in
concert with the executive in the process of law making. This is
why there is a power in the executive to veto bills.4 However
experience has shown that many a time these powers are abused
as over nine- five per cent of bills are proposed by the
executive, these are called public bills the remaining five
percent of bill are sponsored by the legislature and these are
called private bills.It is therefore left to the judiciary to interpret
the constitution and the laws to discover the harmony or lack of
1.
2.
3.
4.
V.S Deshpande: Judicial Review of Legislation, Eastern Books Company, p.
25.
I. A Ayua: Nigeria Issues in The 1999 Constitution, NAILS Press (2000), p.
47.
D.A Guobadia: Current Themes in the 1999 Constitution, (2007) NIALS,
Press, p 176.
See section 58(5) with regards to money bills and section 58(4) for other bills.
Judicial Review of Legislation
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it. However the exclusiveness of this function could not be
allowed to turn into judicial supremacy.
Legislative drafting or the legislative process is, simply one that
focuses on those issues that are rooted in constitutional law
which anyone who is desirous of drafting a piece of legislation
must take into account for such an effort to withstand the
immediate and future constitutional challenges or queries that
may be raised by whoever thinks his interest has been or is
likely to be tampered with by the particular law or the process
adopted for its enactment. A proposed law may be desirable and
still be held unconstitutional and therefore null and void for the
simple reason that it is being initiated by the wrong body or
being introduced through a constitutionally inappropriate
procedure or both.
Particularly in a policy that is established on a written
supreme constitution where the document is generally
acclaimed to be the basis of all legitimate laws, the very idea of
legislation necessarily presupposes that the operative national
constitution would be followed to the letters in the course of
law-making if the basic normative characteristics of all modern
laws, namely legitimacy, validity and enforceability, are to be
assured. It follows therefore that there is a strong presumption
that all legislative activities under such a constitutional order are
as prescribed for under the operative Constitution for them to be
accepted as valid.
This juridical expectation is further heightened in societies
operating the federal system of government in which there are
several tiers of government with each tier constitutionally
authorised to legislate on matters that are conterminous or
consistent with their allotted governing competences or spheres
of operation (legislative lists) within the federated order. What
this entails is that beyond the question as to whether the
particular law was enacted in accordance with the law making
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procedures stipulated in the constitution5, there is still the
question as to which level of government is expected to exercise
that particular lawmaking power because the constitution has
jurisdictional boundaries clearly defined for the various tiers of
government in the federation beyond which they cannot
lawfully legislate.6
5.
6.
The 1999 Constitution by virtue of section 58 provides for the procedures
involved in the Legislative process. The section provides thus: “The power of
the National Assembly to make laws shall be exercised by bills passed by
both the Senate and the House of Representatives and, except as otherwise
provided by subsection (5) assented to by the President…..(2) a bill may
originate in either the Senate or the House of Representatives and shall not
become law unless it has been passed and, except as otherwise provided by
this section and section 59 of the Constitution, assented to in accordance with
the provisions of this section….(3) where a bill has been passed by the House
in which it originated, it shall be sent to the other House, and it shall be
presented to the President for assent when it has been passed by that other
House and agreement has been reached between the two Houses on an
amendment made on it….(4) where a bill is presented to the President for
assent, he shall within thirty days thereof signify that he assents or that he
withholds assent….(5) where the President withholds his assent and the bill is
again passed by each House by two –thirds majority, the bill shall become law
and the assent of the President shall not be required”.
See Attorney-General, Abia and ors v. Attorney-General of the Federation
(2006) where the Supreme Court of Nigeria discussed the relationship
between the legislative powers of the national government vis-à-vis those of
the state governments within a federal set-up. In particular, the reference by
Niki Tobi JSC, to the doctrine of covering the field as applicable to Nigeria
thus; “While the House of Assembly of a State is prohibited from exercising
legislative functions on matters in the Exclusive Legislative List, the House
can exercise legislative powers on matters contained in section 4(7) of the
Constitution. This is in respect of matters not included in the Exclusive
Legislative List set out in Part I of the Second Schedule to the Constitution
and any matter included in the Concurrent Legislative List set out in the first
column of Part II of the Second Schedule to the Constitution to the extent
prescribed in the second column opposite thereto. See sections 4(7)(a) and (b).
Section 4(7)(c) is the House of Assembly of a State counterpart of section
4(4)(b) of the National Assembly... “If any Law enacted by the House of
Assembly of a State is inconsistent with any law validly made by the National
Assembly, the law made by the National Assembly shall prevail, and that
other Law shall, to the extent of the inconsistency, be void.” As I indicated
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In such jurisdictions, the parameters for assessing the
validity of legislations are two-fold: one, the general conformity
with legislative procedures and, two, the necessity to observe
both the vertical separations of roles and competences amongst
the tiers of government as well as the horizontal obligations
amongst states, inter se, to observe the demands of comity in
relationship to the nature and scope of laws initiated by the
component states within the federation. Related to those issues
stated above is the fact that we operate a constitution that
establishes a government limited by laws and that means that all
legislative activities must have substantive vires for them to
qualify as laws, properly so-called.
Ordinarily, national legislatures are concerned more about
the procedures that are set out in the constitution for making
valid laws. This concern is further compounded in federal
jurisdictions where the legislative boundaries amongst the
various levels of government that are set out in the constitution
are far more important than the procedural requirements for
making laws. The idea that Parliament is capable of enacting
laws that could turn a man into a woman and vice versa may
have been true in some ancient jurisdictions, especially
England, but it is doubtful today if such could still be held to be
valid if we take into account the new and expanding regime of
earlier, this subsection provides for the common law doctrine of covering the
field. It vindicates the true practice of federalism. The operative valid
expressions in the subsection are "any Law validly made by the National
Assembly", and a law can only be validly made by the National Assembly if it
is made within the provisions of section 4 of the Constitution”.
There are two Legislative Lists in the 1999 Constitution. These are the
Exclusive Legislative List and the Concurrent Legislative List. The Exclusive
Legislative List in Part I, Schedule 2 to the Constitution contains 68 items. By
section 4(2), only the National Assembly can exercise legislative powers on
the 68 items”. It could be argued that there are actually three levels of
legislative competence in Nigeria if we take into account the fact that there is
a presumption of residual powers allotted to the states following analogous
position in the US which is that whatever is not allocated to the federal
government or made concurrent to both the federal and the states is reserved
to the People through the states.
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constitutionalism to which most modern societies, including the
post-EU England7, where general legislative practice, has more
or less, acquired the form and format of the contemporary
reality, namely, the dominance of the Rule of Law, legislative
standards and constitutionalism, as against the hitherto nebulous
claim to parliamentary sovereignty8. Modern constitutional
standards, or governance best practices, now control
governments’ action and in particular, the law-making process
almost globally.9
7.
Mark Elliot, UK Parliamentary Sovereignty Under Pressure in Int. J
Constitutional Law (2004) 2 (3): 545-627.
Over the years, Parliament has passed laws that limit the application of
parliamentary sovereignty. These laws reflect political developments both
within and outside the UK.
They include:




8.
9.
The devolution of power to bodies like the Scottish Parliament
and Welsh Assembly.
The Human Rights Act 1998.
The UK's entry to the European Union in 1972.
The decision to establish a UK Supreme Court in 2009, which
ends the House of Lords function as the UK's final court of
appeal.
Parliamentary sovereignty is a principle of the UK constitution. It makes
Parliament the supreme legal authority in the UK, which can create or end any
law. Generally, the courts cannot overrule its legislation and no Parliament
can pass laws that future Parliaments cannot change. Parliamentary
sovereignty is the most important part of the UK constitution.
See, for example, the Canadian guidelines on constitutional considerations in
lawmaking: section 2 of the Cabinet Directive on Law Making outlined that:
The Constitution is the most fundamental law. If another law is
inconsistent with the Constitution, it has no force. The second
groups of laws are called quasi-constitutional because they too
express fundamental values and they generally override other
inconsistent laws. However, they are not subject to the rules for
amending the Constitution since they can be amended by another
Act of Parliament.
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Textually, it could be argued that the constitution of Nigeria
complies with at least, some of the key elements of the global
best practices in state management in which the rule of law and
a constitutionally regulated social order is paramount.
Specifically, the relationship between legislative process and the
Constitution in Nigeria is established in the very first section as
thus…10
This constitution is supreme and its provisions
shall have binding force on all authorities and
persons throughout the Federal Republic of
Nigeria… (3) If any other law is inconsistent with
the provisions of this Constitution, this
constitution shall prevail, and that other law shall
to the extent of the inconsistency be void”.
This constitutional declaration as to the relationship
between the “constitution and any other law” in which
superiority is accorded the constitution is the foundation of our
treatment of the nexus between law-making process and the
controlling constitution. Allied to the constitution are other
issues such as the political philosophy which the constitution
establishes and/or promotes11; certain declared values and
interests that are contained in the body of the constitution12;
some fundamental principles of state policies and other concepts
that are regarded as part of the basic structure of the
10. Section 1(2) 1999 Constitution of the Federal Republic of Nigeria.
11. For example the Fundamental Objectives and Directive Principles contained
in the Nigerian constitution sufficiently outlines the philosophical orientation
of the Nigerian state which no government can validly negate in its operation
of the constitution.
12. The principles of Federalism and Republicanism are fully adopted by the
Nigerian constitution and are therefore well beyond the reach of the national
legislature without doing violence to the character of the Nigerian state as a
whole.
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constitution13 which cannot be altered without fundamentally
challenging legitimacy of the state itself.14
The Legislative Process
Before itemizing the constitutional considerations in legislative
process, it may be necessary for us to get acquainted with the
general constitutional requirements for valid legislation in
Nigeria because the actual drafting of laws is largely the clerical
aspect of law-making. Before a piece of legislation is put up for
drafting it must have been conceived of in terms of its goal,
scope and applicability. All these series of actions from
conception to enactment and final publication constitute the
legislative process. The phrase ‘legislative process’ itself is
another way of expressing, in practical terms, the concept of
legislative powers which is a juristic sine qua non for legislation
in a constitutional society.
13. The basic structure doctrine is the judge-made principle that certain features
of the Constitution of India are beyond the limit of the powers of amendment
of the Indian parliament [1]. The doctrine, which was first expressed by the
Indian Supreme Court in Kesavananda Bharati v. State of Kerala (1973),
reflects judicial concern at the perceived threat to the liberal constitutional
order posed by the Indian National Congress' majority in central and state
legislatures, in particular under Indira Gandhi. The basic structure doctrine
applies only to the constitutionality of amendments and not to ordinary Acts
of Parliament, which must conform to the entirety of the Constitution and not
just to its basic structure. On April 24, 1973, the Supreme Court ruled in
Kesavananda that although the Twenty-fifth Amendment of 1971 was valid,
the court still reserved for itself the discretion to reject any constitutional
amendments passed by Parliament The basic structure doctrine is the judgemade principle that certain features of the Constitution of India are beyond the
limit of the powers of amendment of the Indian parliament[1]. The doctrine,
which was first expressed by the Indian Supreme Court in Kesavananda
Bharati v. State of Kerala (1973), reflects judicial concern at the perceived
threat to the liberal constitutional order posed by the Indian National
Congress' majority in central and state legislatures, in particular under Indira
Gandhi. See H M Seervai, 'Constitutional Law of India' for a detailed
discussion of the theme of basic structure of the India constitution.
14. For a comprehensive treatment of this subject, see generally, Mike Ikhariale,
The Legislative powers of the State under the Constitution, JUSTICE, and
(1991) vol2 No 6. Pp. 29-39.
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165
Judicial Review
Judicial review can be defined as the examination by a
country’s court of the action of the legislative15, executive16, and
administrative branches of government to ensure that those
actions conform to the provision of the constitution. Judicial
review is an example of separation of powers in modern
governmental system.
Judicial review in the United States refers to power of a
court to review the constitutionality of a statute or treaty, or to
review an administrative regulation for consistency with either a
statute, a treaty, or the Constitution itself. The United States
Constitution does not explicitly establish the power of judicial
review. Rather, the power of judicial review has been inferred
from the structure, provisions, and history of Constitution.17
In Marbury v. Madison (1803),18 the Supreme Court ruled that
the Federal courts have the duty to review the constitutionality
of acts of Congress and to declare them void when they are
contrary to the Constitution. Judicial review is now a well
settled doctrine. As of 2010 the United States Supreme Court
had held unconstitutional about 163 Acts of the U.S Congress.19
It is suggested that for Nigeria’s democracy to be
meaningful that we embrace this radicalism of judicial review to
checkmate the excesses of our legislators.
The term judicial review was originally against
administrative actions, however in modern times judicial review
can be of two kinds depending on the nature of the state against
which is directed. If it is against administrative action, then it is
directed against the executive organ of the state or the
15.
16.
17.
18.
19.
See Section 4 of the 1999 Constitution of the Federal Republic of Nigeria.
See Section 5 of the 1999 Constitution of the Federal Republic of Nigeria.
The establishment of Judicial Review.
Marbury v, Madison. 5 US (1 Cranch) 137 (1803).
See congressional Research Services: The Constitution of the United States,
Analysis and Interpretation, 2008 Supplement, pp. 163- 164. en. wikapedia.
Org/wiki/ Judicial review in the United States.
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administrative authorities of the state. In this case such process
would seek to review administrative action and is, therefore,
called judicial review of administrative action. If on the other
hand, it is directed against a statutes of legislature or
subordinate legislation made under a statute by administrative
authority in the nature of rules, regulations, bye-laws, etc then it
is directed not against the executive organ but against the law
making action of the legislature or of the executive. Since it
seeks to determine the validity of legislation, it is called judicial
review of legislation.20 Constitutionalism is the permanent quest
to control state power, of which the judicial review of
legislation is a prime example. However amongst various
jurisdiction it has been queried whether judicial review of
legislation is justified, especially when considering the doctrine
of separation of powers.
According to the strict separation of power doctrine,21 each
organ of government must have a separate area of action, the
20. V.S Deshpande: Judicial Review of Legislation; Eastern Book Company p.15
21. “States throughout history have developed concepts and methods of
separation of power. In England, parliament from its origins at least seven
centuries ago was central to a struggle for power between the original
executive (the monarch) and the councils of landowners, church leaders and
commons. Similarly judges, originally representing the executive, developed
increasing independence. Parliament was a significant force in an increasingly
mixed form of government by the time of the Tudors and soon afterwards was
directly challenging the doctrine of the divine right to power of the Stuart
monarchs. The English Civil War (1642-60) between parliament and
monarchy resulted in the monarchy continuing but under an arrangement
which established not only parliament’s legislative authority but also opened
the way to the development of cabinet government. In his Second Treatise of
Civil Government, English philosopher John Locke (1632-1704) noted the
temptations to corruption that exist where “... the same persons who have the
powers of making laws to have also in their hands the power to execute them
... “. Locke’s views were part of a growing English radical tradition, but it was
French philosopher, Baron de Montesquieu (1689-1755), who articulated the
fundamentals of the separation doctrine as a result of visiting England in
1729-31. In his The Spirit of Laws (1748), Montesquieu considered that
English liberty was preserved by its institutional arrangements. He saw not
Judicial Review of Legislation
167
other powers should not encroach on it. Defining the powers of
the legislature the American Committee for Economic
Development stated:
Congress (i.e the American Legislature) has two
primary responsibilities. One is to reconcile or
compromise divergent interest so that the
informed will of the people may find expression
in legislation. The other is to review program
execution and agency performance in order to
check tendencies towards improper exercise of
executive activity or perpetuation of obsolete
programs.22
Legislative power then ought never to be exercise
capricious, but with the greatest sense of the public good,
circumspection and responsibility.
Unfortunately, in the last four years or so the National
Assembly has demonstrated an egregious propensity for pushing
for and effecting legislation, even constitutional amendments
for the evident purpose of giving electoral advantage to the
ruling party.23 One of such examples where the ruling party
manipulated legislation to effect an amendment to section
140(2) of the Electoral Act in the wake of the decisions of the
court reversing the election results in Edo, Ondo, Ekiti and
Osun States.24 The said amendment provided thus:
only separations of power between the three main branches of English
government, but within them, such as the decision-sharing power of judges
with juries; or the separation of the monarch and parliament within the
legislative process.” See Graham Spindler, Separation of Powers: Doctrine
and Practice, Year 11-12 Legal Studies (2000).
22. Quoted in Ferguson and McHenry: the American Federal Government, 13th
Ed. McGraw Hill Book Company, Chapter 6, p.207.
23. Y. Osinbajo. The Retreat of the Legal Process (2011), NIALS Press,p. 14.
24. Ibid. 9.
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Where an election tribunal or court nullifies an
election or court nullifies an election on the
ground that the person who obtained the
highest votes at the election was not qualified
to contest the election or that the election was
marred by substantial irregularities and noncompliance with the provisions of this Act, the
election tribunal or the court shall not declare
the person with the second highest votes or
any other person as elected, but shall order a
fresh election.
If therefore, legislation is the exclusive function of the
legislature, then it will be for the legislature alone to decide
whether its legislation is enacted with competence and accords
with the constitution. This cannot, however work satisfactorily,
as the legislature cannot see through its own incompetence,
hence there is therefore the need for an unbiased umpire
(judiciary) to be called upon to look into the validity of an
enactment.
Another school of thought yet proposed that the legislature,
executive, and the judiciary before whom the issue of
constitutionality of a statute first arises should be entitled to
decide it and its decision should be conclusive. This also could
not have worked satisfactorily, for the interpretation of the
constitution on the one hand and the statute concerned on the
other hand to determine that they accord fully and if not, the
extent to which they discord, involves the practice of a craft
which is essentially judicial. Only a professionally trained body
of lawyers and judges could be trusted with such a function. The
legislature and the executive could not be expected to perform
such function.
The Judiciary
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169
The legislature, the executive and the judiciary had to be kept
co-ordinate powers. The exercise of the legislative and the
judicial functions therefore, constantly interact upon each other.
If a statute is declared unconstitutional by the courts, the
legislature has a two fold power to remedy the situation. The
legislature in its constituent power may amend the constitution
or other legislature and statute to make it constitutional. The
amended statute and other legislation would again be subject to
judicial review and the effect of judicial decisions may again
lead the legislature to enact amendatory or fresh legislation.
This game of see-saw keeps the balance of powers in a running
system.25
In this process the courts are primarily construing statutes
under challenge in litigation before them using the constitution
as its point of reference. The subject of judicial review of
legislation has therefore, two aspects, one is like a foundational
curse of study of the subject, what may be called “the craft”. It
is entirely objective in approach and is concerned with the
exercise of the judicial function and its relationship with the
legislative function. The adjudication of the constitutionality of
a statute, the effects of unconstitutionality and the cure of the
vice of unconstitutionality and the related topics fall into this
ambit.
Briefly, the judges must interpret the constitution in
sympathy with felt necessities of the times. Whenever their
decisions differ from the consensus of the popular opinion the
difference must be justified on a progressive view of the
constitution itself.
Provided that the judges keep close to the spirit of the
constitution,26 their power to review legislation cannot be
25. Ibid 18.
26. Most modern constitutions contain clauses declaring the supremacy of the
constitution over all other laws in the jurisdiction. Starting from the US
Constitutional provision contained in Article IV, clause 2 which declares that:
This Constitution, and the Laws of the United States which
shall be made in pursuance thereof; and all treaties made, or
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attacked merely on the ground that the judges do not represent
the people as the legislatures do. This would be an over
simplification of the true constitutional position. In framing the
constitution, only certain functions were given to the legislature
such as to make laws.27 The constitution deliberately did not
give either the legislature or the executive the power of deciding
disputes.28 That power has been given to the judiciary following
considerable thought and experience. It is the essence of an
adjudicating body that it should be impartial. It must not,
therefore, owe its position to the favour either of the legislation
or of the executive, nor must it be vulnerable by either of them.
It was the intention of the constitution makers that judiciary
should not be elected and that it should be completely
independent and impartial.
One fact which is apt to be missed from a consideration of
this subject is that the courts wield a threefold power of judicial
review of legislation. A court may strike down such legislation
as it holds to be unconstitutional. On the other hand, it may
legitimize the legislation which is consistent with the
constitution. But it is often forgotten that the courts may refuse
to do either, as a constitutional question may be academic. It
may relate to a non-justiciable or non-mandatory part of the
constitution or it may be inexpedient for the courts to decide a
question as it is of a political nature. Just as the court must know
the extent of his jurisdiction to adjudicate, it has also to take
care to inform itself of the limitation beyond which it would not
which shall be made, under the authority of the United
States, shall be the supreme law of the land; and the judges
in every state shall be bound thereby, anything in the
constitution or laws of any state to the contrary
notwithstanding”, most constitutions, including that of
Nigeria (section 1) has similar provisions declaring the
overall supremacy of the constitution.
27. In Nigeria this is contained in section 4 of the 1999 constitution.
28. See Section 6 of the same constitution.
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171
travel. For, when the court stays its hand and makes it clear that
it is staying its hand, it gives the indication that the political
process has to play his own role and the matter is not fit for
judicial adjudication. Professor Bickel in his book, “The least
dangerous branch”, calls this a passive virtue.
It is a profound truth and it becomes increasingly important
in these troubled times. The courts have to be wary of attempts
of suitors who raise essentially political questions for judicial
decisions. Unlike the American supreme court, we have not yet
developed any doctrine of “political questions’’ which the U.S.
supreme court has often but not always kept beyond its pale. It
is to be remembered that the protection given by the constitution
including the fundamental right is only the minimum. The
courts are not expected to stretch the provisions of the
constitution or of the fundamental rights to cover matters which
are clearly not suitable for judicial adjudication. An acute
observer of the American constitutional scene—Charles P.
Curtis—has this warning to utter:
There is nothing more seductive than what
people expect of you. Not, of course, the
litigants who appeal to the courts to redress
their own particular grievances – on the
wildest, leanest hope of success that counsel
will consent to ague.
Importance of Invalidity being only Partial
In the United States it has been recognized that in a majority of
cases only certain parts of the impugned statutes would be
found to be invalid by judicial decisions. In Cooley on
Constitution Limitations29 as also in Sutherland on Statutory
Construction and in Crawford on Statutory Construction, the
29. 3rd Edn, (1874), p. 176.
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entire discussion of the invalidity of a statute is devoted only to
partial invalidity of statutes of which certain part are found to be
unconstitutional by courts. It therefore follows that a court has
powers to invalidate any statute or certain provisions of a statute
that are incompatible with certain provisions of the constitution.
It is also a fundamental principle of law that it is only that part
of a statute which is inconsistent with any provision of the
Constitution that would be declared unconstitutional and in
effect null and void to the extent of its inconsistency with the
constitution.30 Significant results flow from this principle.
Firstly, the unconstitutionality of a statute or a part of it can
flow only from its inconsistency or partial inconsistency with
the Constitution. The legislation made by Parliament and State
Legislatures has thus to yield place only to the Constitution and
to nothing else. The role of the judiciary is, on the one hand, to
construe the Constitution and on the other hand, to construe the
impugned statute and to decide whether and to what extent the
latter is invalidated by its repugnancy with the former. The
judicial decision is thus the measuring rod of the extent of the
invalidity of the statute. It is not an instrument which itself
invalidates a statute. The courts thus have no inherent power to
invalidate a statute. Thus the process of judicial review is more
of a discharge of function than exercise of a power.31
Where a court pronounces a statutes void, it makes that
statutes unenforceable and of no legal effect. The decision does
not have the effect of physically wiping them out or destroying
them. For, such transactions may have to be still considered for
collateral purposes. They cannot be totally ignored as if they
had never existed. When the judicial decision makes a statute
either partly or wholly void, it really makes it unenforceable or
unworkable. The voidness of the statute is a result of the judicial
30. V.S Deshpande: Judicial Review of Legislation, Eastern Book Company. p.
115
31. Ibid 12.
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173
decision which simply means that the court refuses to give
effect to the provisions of a void statute in litigation between
parties.
Neither the American precedent nor the India provisions go
to the extent of declaring that the whole of a statute is void
when any part of the statute is declared void by a judicial
decision.
A statute may be partly void in two senses, either a part of the
statute may be void against every person or the whole of the
statute may be void only against some persons but not against
others. The partial validity may, therefore, exist either in regard
to the provisions of the statute or in regard to its application to
persons. The significance of the fact that in the vast majority of
cases, a statute would be only partially invalid in either of these
two senses is this: Unless a statute is wholly invalid or void,
question whether its invalid or void in law amounts to its
invalidity or voidness in fact does not arise. A void statutes or
partially void statutes cannot be resurrected it remains dead until
amended by legislation.32
What is Prohibition
Prohibition developed along side certiorari as part of the system
of control imposed by the court of the king’s Bench.33 Order of
prohibition lies to restrain a tribunal or “inferior court” which
assumes or threatens to assume jurisdiction which it does not
have, so long as there is something in the proceeding left to be
prohibited. In what might be called the jurisdictional warfare of
the 17th century it was an important weapon of the king’s Bench
when that court struck down the pretensions of the competing
jurisdiction such as those of the court of Admiralty and the
32. Section 9 1999 Constitution.
33. Formerly prohibition was commonly awarded on the direct application of the
party rather than at the instance of the crown: London Corporation v. Cox
(1867), L.R 2 HL 239 at 279.
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ecclesiastical courts.34 In present times in Nigeria, the writ of
prohibition can be used to cub executive assesses especially in
the present political dispensation, were agents of government
like the Economic and Financial Crimes Commission’s have left
the scope of their mandate to witch hurt and indict politicians
without giving them opportunity of fair hearing.
Unlike certiorari which lies on acts already done or
executed, prohibition lies to prevent a thing from being done by
an administrative tribunal/body. As a means of judicial control,
prohibition and certiorari cover broadly the same ground. The
main difference is that certiorari quashes an order or decision
already given and prohibition prevents an order or decision
being made which if made would be subject to certiorari. In
R.V. electricity Commissioners exp.35 Atkin LJ said:
Certiorari and Prohibition, except that the
lather may be invoked at an earlier stage, if
the proceedings establish that the body
complained of exceeding its jurisdiction by
entertaining matters which would result in its
final decision being subject to be quashed on
certiorari, I think that prohibition will lie to
restrain it from so exceeding its jurisdiction.
From the foregoing therefore, Certiorari and Prohibition go
hand in hand, either remedy may however be sought separately
or together. In R V. Raddington Rent Tribunal ex parte,36 it was
held that it is convenient to seek both remedies in the same
proceedings. When a decision in excess of jurisdiction has
already been made and other similar decisions are yet to be
made. Also in the Nigerian case of Arzika v. Governor Northern
34. H.W.R Wade: Administrative Law, 5th ed. P.548.
35. (1924) 1K.B 171 at 206.
36. (1949) 1 K.B 666.
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175
Region,37 a similar position was taken. Occasionally however
prohibition would lie where certiorari will not e.g. to an
ecclesiastical court.38
An application for judicial review by way or an order of
Prohibition or Certiorari passes through two main procedure.
Firstly, the applicant shall bring his action through an exparte
order applying for leave to apply. Where his application is
granted then he proceeds to the second stage where the
application is either by motion on notice i.e. to court or by
originating summon i.e. to a judge in chambers e.g. during court
vacation. See the cases of Ojiako v. A.G. Anambra State,39 and
Oboroh v. Oghuvwe.40
What is the Principle of Democracy?
The answer to this appear very simple. At first one would think
it is settled by the definition “government by the people.” But
even a little consideration tells us that by that only quite a
superficial, purely formal definition is given, whilst nearly all
who use the word “democracy” today understand that it means
more than a mere form of government. Democracy can better be
defined as an absence of class government, as the indication of
social condition where a political privilege belongs to no one
class as opposed to the whole community. By that the
explanation is already given why a monopolist corporation is in
principle anti-democratic. This negative definition has, besides,
the advantage that it gives less room than the phrase
“government by the people” to the idea of the oppression of the
individual by the majority which is absolutely repugnant to the
modern mind. Today we find the oppression of the minority by
the majority as “undemocratic”, although it was originally held
37. (1961) All NLR 379.
38. Similarly a biased adjudication may be prohibited from acting: R v. Kent
Police Authority exp. Godden (1971) 2 Q.B 662.
39. (2000)1 NWLR (Pt 641) 375 at 384.
40. (2000) 3NWLR (Pt 647) 120 at 128.
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to be quite consistent with government by the people. The idea
of democracy includes, in the conception of the present day, a
notion of justice and equality of rights for all members of the
community, and in that principle the rule of the majority, to
which in every concrete case the rule of the people extends.
Judicial Method
An independent judiciary does not participate in the framing of
the programme to bring about social and economic justice. That
is done by the Legislature and the Executive. But the only way
to decide whether the socialist ideals conflict with democratic
principles of protecting the Fundamental Rights was to sturdy
the individual cases in which such a conflict may arise. An
aggrieved individual may take up his case to a court of law
asserting his Fundamental Rights and complaining that the
impuged legislative or administrative action infringes on his
Fundamental Rights. The considerations for deciding such a
dispute would include social, economic and political issues and
questions of policy which are ordinarily not submitted to
judicial decisions. But the Supreme Court and the High Court
who, under the Constitution exercise the power of judicial
review of legislation are not ordinary courts. Like the American
Supreme Court and the Federal Courts, though not to the same
degree our Supreme Court and High Courts have also to
consider social, political and economic questions with
repercussions going beyond the individual dispute which is
decided in a particular case. For legislation lays down general
rules of conduct for people at large. When the Judiciary decides
that the legislation is constitutional or not, the decision is bound
to affect the people at large and not just the parties to the
litigation.
Grounds of Judicial Review
Judicial Review of Legislation
177
What are the grounds on which legislation can be invalidated by
the Courts? A piece of legislation can be invalidated where such
legislation is repugnant to the constitution.41 This provision was
re affirmed by Justice Roberts of the U.S Supreme Court in the
case of United States v. Butler42 thus:
There should be no misunderstanding as to the function of this
Court in such a case. It is sometimes said that the Court assumes
a power to overrule or control the action of the people’s
representatives. This is a misconception. The Constitution is the
supreme law of the land ordained and established by the people.
All legislation must conform to the principles it lays down.
When an Act of Congress is appropriately challenged in the
Courts as not conforming to the mandate, the judicial branch of
the Government has only one duty, -to lay the article of the
Constitution which is invoked besides the statute which is
challenged and to decide whether the latter squares with the
former. All the Court does, or can do, is to announce its
considered judgement upon the question. The only power it has,
if such it may be called, is the power of judgement. This Court
neither approves nor condemns any legislative policy. Its
delicate and difficult office is to ascertain and declare whether
the legislation is in accordance with, or in contravention of, the
provisions of the Constitution; and, having done that, its duty
ends.
In the case of Resident Ibadan Province V. Lagunju,43 the
court issued certiorari to quash an Administrative Act on the
grounds that the governor did not follow the provisions of
section 2 Appointment and Deposition of Chief’s Ordinance in
making his appointment.
41. Marbury v. Madison (1803)5 U.S (1 Cranch) 137.
42. V.S Deshpande: Judicial Review of Legislation, Eastern Book Company. p.
81.
43. B.O Ihuyomade: Cases and Materials on Administrative Law in Nigeria,
(O.A.U) Press, 2nd ed. p. 328.
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178
The provisions of the constitution which would be
particularly relevant in judging whether a statute conflicts with
it or not are the following:
1. Part 1 of the Second Schedule to the Constitution in
respect of pre constitution laws.
2. ………………………..in respect of post constitution
laws.
3. In deciding whether Parliament or State Legislature
possessed the power to legislate on a certain subject,
section 4 of the constitution may have to be read with the
entries contained in the Legislative Lists set out in the
Second Schedule of the Constitution.
In dealing with these three categories of cases, courts have
generally considered the causes of the invalidity of statutes as
falling into two classes, namely:
(a) Want of legislative competence in the Legislature to
make the particular statute; and
(b) The repugnancy of the statute with the Constitution.
Strictly speaking, these categories exhaust the
constitutional grounds on which a statute could be held to
be invalid.
Extra-Constitutional Grounds
Allied to the constitution are other issues such as the political
philosophy which the constitution establishes and/or
promotes44; certain declared values and interests that are
contained in the body of the constitution45; some fundamental
44. For example the Fundamental Objectives and Directive Principles contained
in the Nigerian constitution sufficiently outlines the philosophical orientation
of the Nigerian state which no government can validly negate in its operation
of the constitution.
45. The principles of Federalism and Republicanism are fully adopted by the
Nigerian constitution and are therefore well beyond the reach of the national
Judicial Review of Legislation
179
principles of state policies and other concepts that are regarded
as part of the basic structure of the constitution46 which cannot
be altered without fundamentally challenging legitimacy of the
state itself47. In Indiathe Supreme Court has, however, been
influenced by their understanding of certain decisions of the U.S
Supreme Court where in they consider:
(1) Delegation of legislative power either to lay down the
essential legislative policy or without laying down guidelines by Parliament or State Legislature to the Executive
or to some other body; and
(2) The non-existence of a void statute excludes its revival.
legislature without doing violence to the character of the Nigerian state as a
whole.
46.
The basic structure doctrine is the judge-made principle that
certain features of the Constitution of India are beyond the limit of the powers
of amendment of the Indian parliament [1]. The doctrine, which was first
expressed by the Indian Supreme Court in Kesavananda Bharati v. State of
Kerala (1973), reflects judicial concern at the perceived threat to the liberal
constitutional order posed by the Indian National Congress' majority in central
and state legislatures, in particular under Indira Gandhi. The basic structure
doctrine applies only to the constitutionality of amendments and not to
ordinary Acts of Parliament, which must conform to the entirety of the
Constitution and not just to its basic structure. On April 24, 1973, the
Supreme Court ruled in Kesavananda that although the Twenty-fifth
Amendment of 1971 was valid, the court still reserved for itself the discretion
to reject any constitutional amendments passed by Parliament The basic
structure doctrine is the judge-made principle that certain features of the
Constitution of India are beyond the limit of the powers of amendment of the
Indian parliament[1]. The doctrine, which was first expressed by the Indian
Supreme Court in Kesavananda Bharati v. State of Kerala (1973), reflects
judicial concern at the perceived threat to the liberal constitutional order posed
by the Indian National Congress' majority in central and state legislatures, in
particular under Indira Gandhi. See H M Seervai, 'Constitutional Law of India'
for a detailed discussion of the theme of basic structure of the India
constitution.
47. For a comprehensive treatment of this subject, see generally, Mike Ikhariale,
The Legislative powers of the State under the Constitution, Justice, and (1991)
vol2 No 6. Pp. 29-39.
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Excessive Delegation
Regarding the delegation of power by Parliament to another
body, there are two distinct precedents either of which could be
followed in Nigeria. The precedent of the British Parliament is
that it may delegate its legislative power to any other body
validly. Once it does so, the legislative power could be
exercised in terms of the delegation by the delegate and no
question would arise as to whether the delegation was excessive
or whether Parliament did not lay down any standard or
guidelines which were to govern the exercise of the legislative
power by the delegate. In Municipal Corporation of Delhi v.
Birla Cotton Mills48it was held that the Legislature must lay
down guidelines before conferring legislative power on any
other body so that the delegate may not act arbitrarily. However
in Nigeria which follows the practice in the United States it
cannot delegate legislative power to any other organ or body as
the Constitution vest this power exclusively on the Congress
alone.49
In R V. Electricity Commissioner,50 Lord Justice Atkin
held that were a person acts in excess of jurisdiction/power he
shall be subject to the order of certiorari or prohibition or both.51
On the one hand, the decision of a court must be founded on
the facts of the particular case and the law applicable to them. It
is only in such matters which are justiciable that whenever
political and economic questions enter the dispute between
parties, courts will be required to form their views as to policy
matters in deciding such questions. On the other hand, it is not
quite true to say that economic and political matters are always
unjusticiable and must be decided only by the legislature and
the executive. Whenever legislative and executive action based
48.
49.
50.
51.
(1968) 3 SCR 251.
See sections 4, 5, and 6 of the 1999 Constitution Federal Republic of Nigeria.
(1924) 1 KB 171.
(1967) 1 KB 204.
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181
on political and economic policy is called into question in a
court of law, what that court does is not to decide abstract
questions of policy, but questions of reasonableness, degree and
moderation when the policies are applied against the aggrieved
individual. It is arguable therefore that the true distinction is not
between the kinds of subjects which are either justiciable or not
justiciable but rather between the level at which the subject is
dealt with. At a national level it is dealt with by the parliament
and the executive but at the individual level it can be dealt with
by a court of law or by tribunal. Individual interest can be
decided upon only on a consideration of balance of
convenience, reasonableness, the degree of harm which is
justified and so on. Our constitution therefore makes a broad
distinction between the issues which are completely
unjusticiable such as matters of foreign policy, defence, advice
tendered by the council of ministers to the president etc. and
questions which are justiciable even though they involve
political, social and economic considerations. For instance, the
expression “reasonable restriction’’ used in article 19 of the
constitution for the decision of such issues by the courts. As
distinguished from non-justiciable questions which are decided
in the wide discretion of the legislature and the executive, the
judicial discretion which decides constitutional question in
individual disputes is limited to the construction and the statutes
impugned.
Progressive Role
Even in this limited sphere, the judges have a vital function to
play. In the infinite variety of social problems, legal solutions
have often to be found. Differences which have not been
resolved even by democratic principles have ultimately to be
settled in litigation by the courts. The principles of
reconciliation and solution of conflicts laid down by the courts
from the substance of fraternal living in a democracy. They also
often guide social and economic thought. Dean Rostow in his
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book, the sovereign prerogative, says that “the justices are
inevitable teachers in a national seminar’’. Continuing the same
thought, Professor Bickel says:
Such a seminar can do a
great deal to keep our society from becoming so raven that no
court will be able to save it. Of course, we have never quite
been that society in which the spirit of moderation is so richly in
flower that no court need save it.
This gloomy and apocalyptic view is a triumph of logic
over life (hinting that it is a reversal of what Justice Holmes had
said) ….”The defence of civil rights by the courts is a force not
only for democratic values but for social order”.
The role of the judges would thus be much more modest but
it would not be less important as observed by professors Brian
Abel Smith and Robert Steven:
In the high Victorian period the judges seemed to occupy seats
at the pinnacle of power…In power terms their importance
declined steadily during the 20th century. But the decline in the
relative importance of the judiciary was matched by a
broadening of the public’s respect for the judges.
The present position may be summarized in the following words
of Abel Smith and Steven:52
“Rather than simply compare the judge’s view
with our own, it seems more useful to try to
assess whether the decisions of the judges are in
line with the consensus of public opinion where
such a consensus exists or with the intentions of
the legislature as the main channel for
expressing such consensus --- however
imperfectly it may operate in practice. In so far
as they are not. It may be valuable to ask
whether the judges have a justification for
52. V.S Deshpande: Judicial Review of Legislation, Eastern Book Company. p.
115.
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183
applying other criteria or developing
fundamental principles which may not
necessarily be shared by the bulk of the
population.
The claim that judicial decision –making is inherently
different from all other forms of decision-making or that it has
some absolute or unique claim to objectivity and impartiality
cannot be maintained.
Conclusion
Having considered all these pros and cons, we may conclude
that while the courts must be progressive in their outlook, they
have a definite function to perform in a democratic society. The
judiciary, as an institution, is indispensable in a democracy.
This function can be discharged only by it. We do not enjoy a
superabundance of institutions engaged in the rational pursuit of
truth and right. Students and judges are trained to turn up their
collars against windy sloganeering, no matter from which
direction it is blown.53 Can only discipline be more valuable
today than one that teacher us to look through the great
antinomies that present themselves like gladiators for our favors
– individualism and collectivism, liberty and authority,
secularism and clericalism – to look through them in order to
discover the precise issue in controversy, the precise
consequences of one decision or another, and the possibility of
an accommodation by deflating the isms and narrowing the
schisms? This is the task, and at its best, the accomplishment of
the law, and particularly of the judges in constitutional law. A
judge writing for the popular anthologies could readily compose
an essay on the side of liberty of speech or the side of public
53. V. S Deshpande: Judicial Review of Legislation, Eastern Book Company. p.
115.
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order; but a judge devoted to his mission will resist the
temptation. When he exposes the factor that trouble the
judgment, strives for as particularistic a decision as he can
make, and give a reasoned elaboration, he is providing a lesson
in the rational solution of human conflicts that is too precious to
be jeopardized through disrespect.
It is too precious, also, to be at the hazard of internal
pressures from the court’s work load that interfere with the
essential processes of reflection, consultation, collective
criticism, and careful exposition. If the court saw fit to adjusts
its procedures to these ends, the Bar and the public ought to
accept the practices with understanding, even though this might
involve the granting of fewer of positions petitions for review
and some longer waits for decisions.
The Bar has a threefold opportunity to serve the best
interest of the court; by adjusting itself to the procedures called
for by the court’s exceptional jurisdiction and unique
responsibilities; by providing advocacy, in briefs and oral
argument, as well-focussed and scholarly as might have been
provided by more distinct supreme court Bar, such as existed at
the beginning; and by interpreting the court fairly and
informatively to the general public. The law schools, on their
part, have been slow to assume a responsibility for providing the
reliable and disinterested interpretation of court decisions which
should be part of the process of popular education. Local law
schools and the local press could find ways to co-operate
usefully in this enterprise.
One can imagine the court asking simply, in the words of
Othello, ‘’nothing extenuate, nor set down aught in malice’’. Or,
with Hamlet, ‘’Report us and our cause aright to the
unsatisfied’’. But when one remembers that these were the
words of tragic heroes in their dying moments, as they were
about to succumb to wounds self-inflicted or self-invited, one
hesitates over the literary parallels. In the court’s crisis salvation
Judicial Review of Legislation
185
will come, as in other secular crisis, partly from within and
partly from without.
It must be acknowledged that if the law is to serve society
as a tool for social engineering, then, those who propose
legislations, those who draft them and those who pass them
through the legislative processes that are operational in the
floors of parliaments ought to factor into their actions certain
values and expectations that best advance on the ‘felicity
calculus’54 of their society, namely, in the best interest of
society as a whole as against ad homenien laws which target
narrow segments of the society either for ill or for good. A law
may be flawless as to the procedures for its enact yet falls short
of the requirements of the good law due to the goal it is set out
to achieve. The constitution as presently written is quite
adequate to guarantee for the nation the regular enactment of
good laws but sometimes motives may be less than noble and
that is why the mechanism of Judicial Review is one that we
must guard jealously because the Rule of Law may indeed be
violated through strict compliance with laws that are by design
and contents inimical to a robust practice of the rule of law.
That is additional reason why we must all be on our guard
whenever a law is being proposed because a law with a
beautiful title may end up with obnoxious content.
54. A method of determining the rightness of an action by balancing the probable
pleasures and pains that it would produce by Jeremy Bentham in his An
Introduction to the Principles of Morals and Legislation, London, 1789, chap.
4.