EFFECT OF OUSTER CLAUSES ON THE RIGHT OF ACCESS TO COURT IN NIGERIA

CHAPTER ONE

INTRODUCTION

1.1    BACKGROUND OF THE STUDY

          An ouster clause or privative clause is, in countries with common law legal systems, a clause or provision included in a piece of legislation by a legislative body to exclude judicial review of acts and decisions of the executive by stripping the courts of their supervisory judicial function. According to the doctrine of the separation of powers, one of the important functions of the judiciary is to keep the executive in check by ensuring that its acts comply with the law, including, where applicable, the constitution. Ouster clauses prevent courts from carrying out this function, but may be justified on the ground that they preserve the powers of the executive and promote the finality of its acts and decisions.

          Ouster clauses may be divided into two species – total ouster clauses and partial ouster clauses. In the United Kingdom, the effectiveness of total ouster clauses is fairly limited. In the case of Anisminic Ltd. v. Foreign Compensation Committee (1968), the House of Lords held that ouster clauses cannot prevent the courts from examining an executive decision that, due to an error of law, is a nullity. Subsequent cases held that Anisminic had abolished the distinction between jurisdictional and non-jurisdictional errors of law. Thus, although prior to Anisminic an ouster clause was effective in preventing judicial review where only a non-jurisdictional error of law was involved, following that case ouster clauses do not prevent courts from dealing with both jurisdictional and non-jurisdictional errors of law, except in a number of limited situations[1].

          The High Court of Australia has held that the Constitution of Australia restricts the ability of legislatures to insulate administrative tribunals from judicial review using privative clauses. Similarly, in India ouster clauses are almost always ineffective because judicial review is regarded as part of the basic structure of the Constitution that cannot be excluded. The position in Singapore is unclear. Two cases decided after Anisminic have maintained the distinction between jurisdictional and non-jurisdictional errors of law, and it is not yet known whether the courts will eventually adopt the legal position in the United Kingdom. The Chief Justice of Singapore, Chan Sek Keong, suggested in a 2010 lecture that ouster clauses may be inconsistent with Article 93 of the Constitution, which vests judicial power in the courts, and may thus be void. However, he emphasized that he was not expressing a concluded view on the matter.

          According to the Diceyan model of separation of powers, the executive of a state governs according to a framework of general rules in society established by the legislature, and the judiciary ensures that the executive acts within the confines of these rules through judicial review[2]. In general, under both constitutional and administrative law, the courts possess supervisory jurisdiction over the exercise of executive power. When carrying out judicial review of administrative action, the court scrutinizes the legality and not the substantive merits of an act or decision made by a public authority under the three broad headings of illegality, irrationality and procedural impropriety[3]. In jurisdictions which have a written constitution, the courts also assess the constitutionality of legislation, executive actions and governmental policy. Therefore, part of the role of the judiciary is to ensure that public authorities act lawfully and to serve as a check and balance on the government's power. However, the legislature may attempt to exclude the jurisdiction of the courts by the inclusion of ouster clauses in the statutes empowering public authorities to act and make decisions. These ouster clauses may be total or partial.[3]

[1] Wikipedia (2017). https://en.wikipedia.org/wiki/Ouster_clause

[2] Peter Leyland; Gordon Anthony (2009), "Introduction, Theory and History", Textbook on Administrative Law (6th ed.), Oxford; New York, N.Y.: Oxford University Press, pp. 1–16 at 5,

[3] Council of Civil Service Unions v. Minister for the Civil Service [1983] UKHL 6, [1985] A.C. 374 at 410, House of Lords (UK).

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