Effect Of Ouster Clauses On The Right Of Access To Court

1.0 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.

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 . 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. 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]

1.2 Statement of the Problem

In contrast with total ouster clauses, courts in the United Kingdom have affirmed the validity of partial ouster clauses that specify a time period after which aggrieved persons can no longer apply to court for a remedy.
If an ouster clause achieves its desired effect in preventing the courts from exercising judicial review, it will serve as a clear signal to the decision-maker that it may operate without fear of intervention by the courts at a later stage. However, ouster clauses have traditionally been viewed with suspicion by the courts. According to the 19th-century laissez-faire theory championed by A. V. Dicey, which Carol Harlow and Richard Rawlings termed as the “red-light approach” in their 1984 book Law and Administration , there should be a deep-rooted suspicion of governmental power and a desire to minimize the encroachment of the state on the rights of the individuals. Therefore, the executive, which is envisaged as capable of arbitrary encroachment on the rights of individual citizens, is subjected to political control by Parliament and to legal control by the courts.

On the other end of the spectrum, there is the green-light approach derived from the utilitarian school of thought associated with legal philosophers such as Jeremy Bentham and John Stuart Mill. The green-light approach regards state involvement as an effective means to facilitate the delivery of communitarian goals. Hence, ouster clauses are regarded as useful devices to keep a conservatively inclined judiciary at bay. One such communitarian goal achieved by ouster clauses is that it results in consistency and finality in the implementation of policy considerations by encouraging specialist bodies to act as adjudicators in certain areas of administration.

1.3 Purpose of the Study

The main purpose of this study is to examine the effect of ouster clauses on the right of access to court in Nigeria.

1.4 Significance of the Study

This study will be great importance to the administrative bodies the surety and finality of their decisions thereby ‘eliminating’ the possibility of the decision being challenged by another body.

It would also help to protects the integrity of administrative bodies from judicial interference or the tendency of courts undermining their decisions.

It will also help in providing and protecting the courts from superfluous or unnecessary litigation. This further reduces the number of cases in courts hence the capacity of the judiciary to handle cases is not overstretched.
It will provide resources that could have been used to determine the cases are saved. They include time and the cost of litigation.

1.5 Scope of the Study

This study investigates the effect of ouster clauses on the right of access to court in Nigeria. The will also look the following areas

1.6 Limitation of the Study

There is no study undertaken by a researcher that is perfect. The imperfection of any research is always due to some factors negatively affecting a researcher in the course of carrying out research. Therefore, time constraint has shown no mercy to the research. The limited time has to be shared among many alternative uses, which includes reading, attending lectures and writing of this research, also distance and its attendant costs of travelling to obtain information which may enhance the writing of this study was a major limitation.

1.7 Methodology

The approach of research taken into consideration will be based on explanatory method, thus textbook, journals, articles by law writers, publications, judicial pronouncement and opinion will be looked into. Decided cases will also be employed in this study to be able to understand more on the principles of law relating to the ouster clauses. The Court of Appeal of Nigeria and Court of Appeal of England and Waleswill also be of immense use to this work.