ORDER 16.-APPLICATIONS FOR JUDICIAL REVIEW.
1. Cases appropriate for application for judicial review. (UK. 53/1)
(1) An application for an order in the nature of mandamus, prohibition, certiorari or quo warranto shall be made by way of an application for judicial review in accordance with this Order.
(2) An application for a declaration or an injunction may be made by way of an application for judicial review, and on such an application the Court may grant the declaration or injunction claimed if it considers that, having regard to -
(a) the nature of the matters in respect of which relief may be granted by way of an order of mandamus, prohibition or certiorari; and
(b) the nature of the persons and bodies against whom relief may be granted by way of such an order; and
(c) all the circumstances of the case,
it would be just and convenient for the declaration or injunction to be granted on an application for judicial review.
2. Joinder of claims for relief. (UK. 53/2)
On an application for judicial review any relief under Rule 1 may be claimed as an alternative or in addition to any other relief so mentioned if it arises out of or relates to or is connected with the same matter.
3. Grant of leave to apply for judicial review. (UK. 53/3)
(1) An application for judicial review shall not be made unless the leave of the Court has been obtained in accordance with this Rule.
(2) An application for leave must be made by originating summons ex parte to the Court, except in vacation when it may be made to a Judge in chambers, and must be supported -
(a) by a statement, setting out the name and description of the applicant, the relief sought and the grounds on which it is sought; and
(b) by affidavit, to be filed before the application is made, verifying the facts relied on.
(3) The applicant must give notice of the application to the Secretary for Justice not later than two days before the application is made and must at the same time lodge with the Secretary copies of the statement and every affidavit in support.
(4) Without prejudice to its powers under Order 8 Division 4, the Court hearing an application for leave may allow the applicants statement to be amended, whether by specifying different or additional grounds for relief or otherwise, on such terms (if any) as it thinks fit.
(5) The Court shall not grant leave unless it considers that the applicant has a sufficient interest in the matter to which the application relates.
(6) Where leave is sought to apply for an order of certiorari to remove for the purpose of its being quashed any judgement, order, conviction or other proceedings which is subject to appeal and a time is limited for the bringing of the appeal, the Court may adjourn the application for leave until the appeal is determined or the time for appealing has expired.
(7) If the Court grants leave, it may impose such terms as to costs and as to giving security as it thinks fit.
(8) Where leave to apply for judicial review is granted, then -
(a) if the relief sought is an order of prohibition or certiorari and the Court so directs, the grant shall operate as a stay of the proceedings to which the application relates until the determination of the application or until the Court otherwise orders; and
(b) if any other relief is sought, the Court may at any time grant in the proceedings such interim relief as could be granted in an action begun by writ.
4. Delay in applying for relief. (UK. 53/4)
(1) Subject to this Rule, where in any case the Court considers that there has been undue delay in making an application for judicial review or, in a case to which Sub-rule (2) applies, the application for leave under Rule 3 is made after the relevant period has expired, the Court may refuse to grant-
(a) leave for the making of the application; or
(b) any relief sought on the application,
if, in the opinion of the Court, the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.
(2) In the case of an application for an order of certiorari to remove any judgement, order, conviction or other proceeding for the purpose of quashing it, the relevant period for the purpose of Sub-rule (1) is four months after the date of the proceeding.
(3) Sub-rule (1) is without prejudice to any statutory provision which has the effect of limiting the time within which an application for judicial review may be made.
5. Mode of applying for judicial review. (UK. 53/5)
(1) Subject to Sub-rule (2), when leave has been granted to make an application for judicial review, the application shall be made by Notice of Motion to the Court.
(2) The Notice of Motion must be served on all persons directly affected and where it relates to any proceedings in or before a court and the object of the application is either to compel the court or an officer of the court to do any act in relation to the proceedings or to quash them or any order made in them, the Notice of Motion must also be served on the clerk or Registrar of the court and, where any objection to the conduct of the Judge is to be made, on the Judge.
(3) Unless the court granting leave has otherwise directed, there must be at least 14 days between the service of the Notice of Motion and the day named in it for the hearing.
(4) Within 21 days after grant of leave the Notice of Motion shall be allocated a date of hearing by the Registrar after consultation with the parties.
(5) An affidavit giving the names and addresses of, and the places and dates of service on, all persons who have been served with the Notice of Motion must be filed before the Notice of Motion is entered for hearing and, if any person who ought to be served under this Rule has not been served, the affidavit must state that fact and the reason for it, and the affidavit shall be before the Court on the hearing of the Notice of Motion.
(6) If on the hearing of the Notice of Motion the Court is of opinion that any person who ought, whether under this Rule or otherwise, to have been served has not been served, the Court may adjourn the hearing on such terms (if any) as it may direct in order that the Notice of Motion may be served on that person.
6. Statements and affidavits. (UK. 53/6)
(1) Copies of the statement in support of an application for leave under Rule 3 must be served with the Notice of Motion and, subject to Sub-rule (2), no grounds shall be relied on or any relief sought at the hearing except the grounds and relief set out in the statement.
(2) The Court may on the hearing of the Notice of Motion allow the applicant to amend this statement, whether by specifying different or additional grounds for relief or otherwise, on such terms (if any) as it thinks fit and may allow further affidavits to be used if they deal with new matters arising out of an affidavit of any other party to the application.
(3) Where the applicant intends to ask to be allowed to amend his statement or to use further affidavits, he shall give notice of his intention and of any proposed amendment to every other party.
(4) Each party to the application must supply to every other party on demand and on payment of the proper charges copies of every affidavit which he proposes to use at the hearing, including, in the case of the applicant, the affidavit in support of the application for leave under Rule 3.
7. Claim for damages. (UK. 53/7)
(1) On an application for judicial review the Court may, subject to Sub-rule (2), award damages to the applicant if -
(a) he has included in the statement in support of his application for leave under Rule 3 a claim for damages arising from any matter to which the application relates; and
(b) the Court is satisfied that, if the claim had been made in an action begun by the applicant at the time of making his application, he could have been awarded damages.
(2) Order 8, Division 2, shall apply to a statement relating to a claim for damages as it applies to a pleading.
8. Application for discovery, interrogatories, cross-examination etc.
(UK. 53/8)
(1) Unless the Court otherwise directs, any interlocutory application in proceedings on an application for judicial review may be made to any Judge of the Court notwithstanding that the application for judicial review has been made and is to be heard by another Judge.
(2) In this sub-rule interlocutory application includes an application for an order under Order 9 Divisions 1 and 2, or Order 11 Division 3, or for an order dismissing the proceedings by consent of the parties.
(3) This Rule is without prejudice to any statutory provision or rule of law restricting the making of an order against the State.
9. Hearing of application for judicial review. (UK. 53/9)
(1) On the hearing of any Notice of Motion under Rule 5, any person who desires to be heard in opposition to the Notice of Motion, and appears to the Court to be a proper person to be heard, shall be heard, notwithstanding that he has not been served with the Notice of Motion.
(2) Where the relief sought is or includes an order of certiorari to remove any proceedings for the purpose of quashing them, the applicant may not question the validity of any order, warrant, commitment, conviction, inquisition or record unless before the hearing of the Notice of Motion he has lodged with the Secretary for Justice a copy verified by affidavit or accounts for his failure to do so to the satisfaction of the court hearing the summons.
(3) Where an order of certiorari is made in any case referred to in Sub-rule (2), the order shall, subject to Sub-rule (4), direct that the proceedings shall be quashed immediately on their removal to the Court.
(4) Where the relief sought is an order of certiorari and the Court is satisfied that there are grounds for quashing the decision to which the application relates, the Court may, in addition to quashing it, remit the matter to the court, tribunal or authority concerned with a direction to reconsider it and reach a decision in accordance with the findings of the Court.
(5) Where the relief sought is a declaration, an injunction or damages and the Court considers that it should not be granted on an application for judicial review but might have been granted if it had been sought in an action begun by writ by the applicant at the time of making his application, the Court may, instead of refusing the application, order the proceedings to continue as if they had been begun by writ.
10. Saving for person acting in obedience to mandamus. (UK. 53/10)
An action or proceeding shall not be begun or prosecuted against any person in respect of anything done in obedience to an order of mandamus.
11. Appeal.
An appeal by way of motion to the Supreme Court may be made to set aside or discharge any order of the Court or a Judge granting or refusing an application for leave under Rule 3 or an application for judicial review.
12. Service on the Secretary for Justice.
Service on the Secretary for Justice may be effected by leaving the document at his office in the Department of Justice, with the person apparently occupying the position of personal secretary to that Secretary.
13. Judicial Review (Amendment) Rules 2005.
Purpose.
The purpose of these Rules is to prescribe procedures for the conduct of judicial review cases in the National Court with the establishment of a separate Judicial Review List The conduct of this list will be administered by a judge assigned by the Chief Justice. These Rules replace previous practice directions and notes issued by the Registrar on the conduct of judicial review matters in the National Court. As from the date of coming into operation of this these Rules, all previous practice directions & notes on judicial review will cease to apply. These Rules are intended to improve the disposition of judicial review cases in the National Court in a quick, fair and cheap manner.
These Rules are intended to be read consistently with the judicial review procedure contained in Order 16 of the National Court Rules.
Judicial Review proceedings involve a review of the decision-making process of statutory tribunals or authorities. They involve applications in the nature of mandamus, prohibition, certiorari or quo warranto under the procedure set out in Order 16 of the National Court Rules and they include actions for: -
§ commanding or otherwise requiring a public body or a public officer to perform a public duty;
§ prohibiting or otherwise restraining a public body or public officer from performing or purporting to perform an act;
§ determining by declaration or otherwise any matter concerning the powers of a public body or public officer;
§ in appeals and applications to the Court in respect of decisions of quasi-judicial tribunal or a public body or a public officer, under any statute.
The grounds of review include those specified by statute and subject to the Constitution or any relevant statute, those grounds recognized by common law, including: -
§ Ultra vires-lack of jurisdiction.
§ Breach of procedures prescribed by statute or sub-ordinate legislation designed to ensure procedural fairness in decision-making.
§ Acting under dictation.
§ Real or apprehended bias.
§ Bad faith.
§ Inflexible application of a government policy.
§ Taking into account irrelevant considerations.
§ Failing to take into account relevant considerations.
§ Extraneous (improper) purpose.
§ Error of law on the face of the record.
§ Wednesbury principle of unreasonableness.
1. Judicial Review List.
The Registrar shall maintain a Judicial Review List which contains all judicial review cases pending determination in the National Court. The list shall be updated at the end of every circuit month.
2. File Reference.
Judicial review matters bearing the following file reference shall be listed in the Judicial Review List-
OS (JR) No. . . of . . . Application for judicial review commenced by Originating Summons.
3. Judge.
The Chief Justice may assign a judge(s) to conduct the Judicial Review List as determined in the Annual Circuit Calendar issued by the Chief Justice.
4. Clerk.
The Registrar shall assign a Clerk(s) to manage the Judicial Review List.
5. Directions to be issued at time of grant of leave.
Immediately after granting leave to apply for judicial review, the judge granting leave shall consider and issue directions as to, amongst other things, the following: -
(1) Filing of Notice of Motion and supporting affidavits under Order 16 rule 5 (1).
(2) Identification of all persons directly affected by the decision the subject of the review, who may be served with the Notice of Motion including the Clerk or Registrar of the Court or Tribunal which made the decision.
(3) Service of the order granting leave including directions issued hereunder and Notice of Motion and supporting affidavits and any other documents filed for purposes of the leave application, on persons identified under (2) and filing proof of service.
(4) Availability of decision and reasons for decision together with any other relevant documents or depositions of the tribunal or public authority which made the decision the subject of review.
(5) Fix a date for Directions Hearing to take place within fourteen (14) days there-from. This date shall be entered on the Notice of Directions Hearing issued by the Registrar under Rule 6 (1) here-under.
6. Directions Hearing.
(1) The Registrar shall give Notice of the Directions Hearing in the form in Schedule A.
(2) At the Directions Hearing, where parties are represented by a lawyer, the lawyer must be familiar the matter.
(3) A person who is served with the Notice of Motion is entitled to attend the Directions Hearing.
(4) At the Directions Hearing, the Judge may consider and determine and issue directions or orders for the prompt hearing of the application, amongst other things, the following:
a. Question of legal representation.
b. Identification of persons served or who ought to have been served with the Notice of Motion.
c. Joinder of persons served with the Notice of Motion as parties to the proceedings.
d. Filing and service of affidavits by the Respondents.
e. The grounds of review.
f. Amendment of grounds of review.
g. Identification of legal issues.
h. Statement of agreed and disputed facts.
i. Identification of factual issues and manner of proof of disputed facts.
j. Provision of records including decision and reasons for decision by the Clerk or Registrar of the Court or Tribunal or statutory authority which made the decision.
k. Issue of notices for discovery, notice to admit facts, exchange of interrogatories, notices under Evidence Act, etc.
l. Issue of witnesses summonses.
m. Filing of extract of submissions.
n. Compilation of a Review Book.
o. Fix a date for the Pre- hearing Conference to take place within seven (7) days there-from.
7. Review Book.
(1) The Applicant or his/her lawyer is responsible for compiling the Review Book.
(2) The Respondent or his/her lawyer is responsible for ensuring that the decision the subject of the review and other documents considered relevant for purpose of the review are included in the Review Book.
(3) The Clerk, Registrar or the officer responsible for keeping the records of the tribunal or public authority which made the decision shall certify the documents referred to.
The certification shall be as follows:
**I . . . , Clerk/Registrar of the . . . , hereby certify that I have examined these documents with the original and certify that they are true copies.
Dated this . . . day of . . . 2005.
. . . .\ Clerk/Registrar.**
(4) Where proceedings have been taken to challenge the decision of a public body or public official, because of the difficulties which at times arise in ascertaining the decision-making process and the reasons for the decision, the judge may at a directions hearing direct a body or person whose decision is under review to furnish to the applicant within a specified time, a statement in writing setting out the reasons for decision including:
(i) findings on material questions of fact referring to evidence or other material on which those findings were based;
(ii) the body or person's understanding of the applicable law and the reasoning process leading to the decision; or
(5) Where Rule (4) is not applicable, the judge may make orders for such matters to be ascertained by way of particulars, discovery or interrogatories. Subject to this Rule, orders for discovery or interrogatories will only be made in exceptional cases, and such orders will then be confined to particular issues.
(6)
(a) The Review Book shall contain the following: -
(i) Title page.
(ii) Index.
(iii) Originating Summons.
(iv) Statement in Support filed under Order 16 Rule 3(a).
(v) Any Amendment to the statement in support.
(vi) Affidavit Verifying Statement in Support filed under Order 16 Rule 3(b).
(vii) Order granting leave.
(viii) Notice of Motion filed under Order 16 Rule 5(1).
(ix) Affidavit of service of Notice of Motion filed under O. 16 R. 5(5).
(x) Extract of submissions for the Applicant.
(xi) Extract of submissions for the Respondent.
(xii) Certified copy of decision and other relevant documents of the decision-making tribunal or statutory authority.
(xiii) Any other relevant documents filed in the National Court including affidavits, Notice of Motion and orders.
(b) All pages must be numbered.
(c) If both parties are not represented by a lawyer, subject to the Applicant meeting the cost, the Registrar may prepare the Review Book.
(d) A Review Book must be prepared, filed and served on the other party seven (7) days before the date fixed for the Pre-hearing Conference.
8. Pre - Hearing Conference.
(1) At the Pre-hearing Conference, the Judge may confirm compliance with directions issued at the directions hearing, under Rule 5 and Rule 6, and may determine or issue directions, amongst other things: -
a. Confirm correctness of the Review Book.
b. Summarily determine any proceedings which fail to comply with the directions or the requirements of Order 16 rule 5 of the National Court Rules.
c. Confirm grounds of review.
d. Confirm legal or factual issues, if any.
e. Filing of extract of submissions. e. Length of hearing time
f. Fix a date for the hearing.
(2) Upon fixture of a date for the hearing under (1) (f), the Registrar shall prepare and issue to both parties an Appointment for the Hearing.
(3) The judge may adjourn the Pre-hearing as may be necessary for the parties to fully comply with the directions issued at the Directions Hearing or Pre-hearing Conference.
9. Pre-Hearing Conference Form.
Upon completion of the Pre-Hearing Conference, the judge's Associate shall record a summary of the details of the pre-hearing conference in the form provided in Schedule B** and place it in the Court file.
10. Status Conference.
A status conference shall be conducted by the judge on the first day of the circuit month to confirm that all relevant directions and orders issued during directions and pre- hearing conference have been complied with and that the matter is ready for hearing.
11. The Hearing.
(1) The Hearing shall proceed on the date fixed by the Judge at the Pre-hearing Conference, unless otherwise ordered.
(2) An application shall not be adjourned generally; it must be adjourned to a specific date and time.
(3) The hearing shall be by affidavit evidence only. Cross-examination on the affidavit shall not be allowed except with leave of the Court.
(4) At the hearing, the judge may summarily determine any application which fails to comply with the procedures prescribed under Order 16 of the National Court Rules or directions issued under Rules 5, 6 and 8 hereof.
(5) After the application is heard and determined, the Registrar or Clerk shall forward a copy of the order together with a copy of the written decision to the Clerk or Registrar of the Court, Tribunal or statutory authority which made the decision. If there is no written judgment handed down, a copy of the oral judgment transcribed by the Court Reporting Service, shall be forwarded.
12. Adjournments.
Proceedings in a Directions Hearing, Pre-hearing Conference or Hearing will not be adjourned or stood over generally, even by consent. If parties require time to consider their position or negotiate a settlement, proceedings may, with the judge's approval, be adjourned to a comparatively lengthy period, but always to a fixed date with (if appropriate) liberty to restore the matter to the Directions Hearing or Pre-hearing Conference within that time.
13. Other matters.
(1) Motions.
All interlocutory applications shall be made by Notice of Motion. The practice and procedure shall be those prescribed by the National Court Rules from time to time.
(2) Summary disposal.
a. Any application for judicial review may be determined summarily for failing to comply with directions or orders issued under the Order 16 of the National Court Rules or under these Rules or on any other competency grounds.
b. The Court may summarily determine a matter:
(a) on application by a party; or
(b) on the Court's own initiative; or
(c) upon referral by the Registrar in accordance with the procedure set out in (3) below.
c. Where the Registrar refers a matter for summary determination, the following procedure shall apply:
i. A notice letter in the form in Schedule C is issued by the Registrar which gives notice to the Applicant of his intention to refer the matter to the judge for summary determination on the grounds stated in the letter. The letter also gives the Applicant thirty (30) days to respond and fixes a return date and time for the matter to come before the judge. A copy of the same letter is sent to the respondent. In appropriate cases, the notice letter may be published in the media.
ii. If the Registrar receives a response, either in writing or verbal, he shall place on the file the response or note of the verbal response and advise the Applicant to appear in Court on the date and time fixed.
iii. Upon expiry of 30 days, the Registrar shall forward the file to the judge together with any response received.
iv. The judge may determine the application summarily based on the response received or report by the Registrar together with any explanation given by the Applicant and/or the respondent in court.
v. if the parties are unrepresented by a lawyer, the Registrar shall draft and settle the Court Order and forward sealed copies to the parties.
vi. The Registrar shall also forward a sealed copy of the Order together with a copy of the judgment, if any, to the Clerk of the Court or tribunal which made the decision.
vii. The file shall be closed and forwarded to Archives for storage.
14. Dispensation with requirements of these Rules.
The judge may dispense with any requirements of these Rules in an appropriate case.
15. Commencement of these Rules.
These Rules shall commence on the date they are signed by the Judges2.
Schedule "A"-Notice for Directions Hearing
SCHEDULE A
(Title)
NOTICE FOR DIRECTIONS HEARING
TO THE:\ Applicant:\ Respondents:
Take note that the substantive application for judicial review is fixed for Directions Hearing before a judge of the National Court at . . . (Courthouse) at . . . a.m. / p.m. on the . . . day of . . . 20____.
You are required to attend at the Directions Hearing. You must be prepared to assist the judge deal with the matters listed below.
At the Directions hearing, the Court will consider and determine or issue directions, amongst others, the following:
a. Question of legal representation.
b. Identification of other persons directly affected by the decision under review and who have been served or ought to have been served with the Notice of Motion.
c. Joinder of persons served or ought to have been served with Notice of Motion as parties to the proceedings.
d. Grounds of review.
e. Filing and service of affidavits.
f. Availability of records of the decision and reasons for decision of tribunal or public authority which made the decision.
g. Identification of legal issues.
h. Identification of factual issues if any and manner of proof.
i. Compilation of Review Book.
j. Filing of written submissions.
k. Fix a date for the Pre-hearing Conference to take place within seven (7) days there-from.
Dated this day of 20 . Issued by:
Registrar
Schedule "B"-Pre-hearing Conference Form
SCHEDULE B
PR-HEARING CONFERENCE FORM
(to be completed by Judge's Associate after Pre-hearing Conference)
Title of Proceedings:
1. Lawyer for the Applicant & Counsel:
2. Lawyer for the Respondent(s) & Counsel:
3. Grounds of review pursued:
4. Issues:
5. Number of affidavits for applicant:
6. Applicant's witnesses required for cross examination on their affidavits:
7. Number of Respondent's affidavits:
8. Respondent's witnesses required for cross examination on their affidavits: 10.Witnesses summonsed:
11. Review Book filed:
12. Duration of hearing:
13. Date & time of Hearing:
Dated this . . . .day of . . . , 20 . . . .\ (Judge's Associate's name & signature )
Schedule "C"-Notice to Show Cause
SCHEDULE C
(Notice letter for Summary Determination of Application for Judicial Review)
Date:
To: Messrs: . . .\ (Name of Applicant or Lawyer & address.
Copy to: . . .\ (Name of Respondent or Lawyer & address)
Title of proceedings:
RE: NOTICE TO SHOW CAUSE WHY YOUR APPLICATION FOR JUDICIAL REVIEW SHOULD NOT BE SUMMARILY DISMISSED.
I refer to the above matter and advise that this matter is listed for summary determination before the National Court at . . . (Courthouse) at . . . a.m./p.m. on the . . . day of . . . 20. . . .
The grounds or reasons are:
1.
2.
3.
You are required to attend Court on the date and time fixed above to show cause why your application should not be summarily dismissed for the reason(s) stated above.
If you wish to give an explanation before appearing in Court, you may do so by letter addressed to the Registrar within 30 days from the date of this letter.
Yours Sincerely,
. . .\ Registrar