THE LAW AND PRACTICE OF JUDICIAL REVIEW

BY

JUSTICE S. K. DATE-BAH*

I) STRUCTURE OF THE PRESENTATION

I will start this presentation with a definition of its scope, proceed to state the current
law on judicial review, as I see it, identifying, in the course of it, some grey areas
which need to be clarified by future case-law.

II) DEFINITION OF THE SCOPE OF THE PRESENTATION

In Gambian law, the expression “judicial review” has two main connotations, which
need to be separated out before we commence our consideration of the subject. In the
first instance, it refers to the means through which the courts control the exercise of
administrative power. This is the sense in which the expression tends to be
understood in the English jurisdiction and the case-law developed there tends to focus
on this connotation of judicial review. For instance, one English textbook summarises
the four principal objectives of judicial review in this sense as:

“(a) that Acts of Parliament have been correctly interpreted;

(b) that discretion conferred by statute has been lawfully exercised;
(c) that the decision maker has acted fairly;
(d) that the exercise of power by a public body does not violate human
rights.” 1

*
LL.B, LL.M., Ph.D, FGA, Justice of the Supreme Court of Ghana and of The Gambia.

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Judicial review, in this sense, is currently exercised in the Gambia by the High Court,
pursuant to section 3 of the Courts Act 1964 (Cap. 6:01). As is well-known, section
3(1) of the Courts Act, 1964 provides that:

“The Supreme Court shall have the jurisdiction and powers provided
by the Constitution and all the jurisdiction, powers and authorities
which were vested in or capable of being exercised by Her Majesty’s
High Court of Justice in England immediately before the eighteenth
day of February, 1965.”

(The reference in 1964 to the Supreme Court is to be understood as a reference to the

present day High Court.) These powers and jurisdiction of the High Court in
England, of course, include the power of judicial review. These powers of the High
Court are confirmed in Article 133 of the 1997 Constitution which provides as
follows:

“The High Court shall have supervisory jurisdiction over all lower
courts and adjudicatory authorities in the Gambia, and, in the exercise
of the supervisory jurisdiction, shall have power to issue directions,
orders or writs, including writs of habeas corpus, orders of certiorari,
mandamus and prohibition as it may consider appropriate for the
purposes of enforcing its supervisory powers.”

Secondly, judicial review may refer to the courts’ enforcement of the doctrine of
supremacy of the constitution to invalidate legislation or any other acts in conflict
with the Constitution. This is the sense in which the expression tends to be
understood in the United States because of the assertion by the US Supreme Court,
ever since Marbury v Madison 2, of its jurisdiction to review the constitutionality of
Acts of Congress. The Gambian courts have the power to exercise judicial review in
both the connotations outlined above.

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III) A STATEMENT OF THE GAMBIAN LAW ON JUDICIAL REVIEW IN
THE FIRST SENSE

Introduction

Whilst discussing Ghanaian law, Dr. Twum JSC, made some remarks in his judgment
in Republic v High Court, Accra; Ex Parte Industrialization Fund for Developing
Countries [2003-2004] SCGLR 348 which throw light on the kind of jurisdiction that
the High Court both in Ghana and in the Gambia exercises. In that judgment, he
noted that the High Court had inherited the judicial review jurisdiction exercised by
the High Court of Justice in England.

This is what he said (at p.356 of the Report):

“Whereas the King’s Bench Division invented judicial review, our High Court
acquired the power of review as part of the received law. Since then, the
development of judicial review in this country has followed developments in
England.

Without putting too fine a gloss on it, our Supreme [High] Court (Civil
Procedure) Rules, 1954 were copied from the English rules and the substantive
law was English. An examination of our case law makes that abundantly
clear. After all, that is what the enabling 1876 Ordinance ordained of our
High Court. Therefore successive legislation have maintained that posture.
All this time, supervisory jurisdiction was conferred only on the High Court
just as that jurisdiction is exercised by the High Court in England.

Then in 1969, there was a change. The 1969 Constitution of Ghana

conferred supervisory jurisdiction also on the Supreme Court. This was
repeated verbatim in the 1979 Constitution. The current law is contained in
articles 132 and 161 of the 1992 Constitution.”

Justice Twum is here referring to an aspect of Ghanaian law that does not exist in the
Gambia, namely, Judicial Review of the Superior Courts. Accordingly, Ghanaian

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cases have to be treated with some circumspection in the Gambian jurisdiction.
Justice Twum noted in that same case that:

“This court (the Supreme Court) has, with all respect, not considered carefully
the circumstances under which it would exercise its supervisory jurisdiction
over the High Court. Its present stance has virtually reduced the High Court to
a lower court. Rules fashioned by the King’s Bench Division of the English
High Court to control inferior courts and tribunals have been applied
indiscriminately by this court to the High Court. Yet all the English
authorities make it nakedly clear that they were only intended to control the
judgments, decisions or orders of inferior courts, tribunals and adjudicating
authorities, including administrative agencies…”

In consequence of his diagnosis of the problem outlined above, Dr Twum JSC issued
a plea to the Ghanaian Supreme Court to restate the law governing the exercise of its
supervisory jurisdiction over the superior courts, in a manner that would take into
account the status of the High Court as a court of unlimited jurisdiction.

Again, it is helpful to quote the terms of the learned judge’s plea. He said (at p. 361
of the Report):

“Let me hasten to say that I am not suggesting that the High Court is not
amenable to judicial review. What I am proposing is that the grounds for
review, which were worked out by the English courts to govern inferior courts,
are inappropriate when dealing with the High Court and the Supreme Court
must work out new rules – bearing in mind the status of the High Court.

What I have proposed above is an invitation to this court for a re-

statement of the law governing the exercise of its supervisory jurisdiction over
the superior courts of judicature.”

It was this invitation to which the Ghanaian Supreme Court responded unanimously in
Republic v High Court, Accra; Ex Parte CHRAJ (Addo Interested Party)[2003-2004]

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SCGLR 312. In the judgment of the Court, which I had the privilege of delivering, it
said (at pp. 345-346):

“The restatement of the law may be summarised as follows: where the High
Court (or for that matter the Court of Appeal) makes a non-jurisdictional error
of law which is not patent on the face of the record (within the meaning
already discussed), the avenue for redress open to an aggrieved party is an
appeal, not judicial review. In this regard, an error of law made by the High
Court or the Court of Appeal is not to be regarded as taking the judge outside
the court’s jurisdiction, unless the court has acted ultra vires the Constitution
or an express statutory restriction validly imposed on it. To the extent that this
restatement of the law is inconsistent with any previous decision of this
Supreme Court, this Court should be regarded as departing from its previous
decision or decisions concerned, pursuant to Article 129(3) of the 1992
Constitution. Any previous decisions of other courts inconsistent with this
restatement are overruled.”

This restatement was formulated pursuant to power conferred on the Supreme Court
by article 129(3) of the 1992 Constitution, which provides as follows:

“The Supreme Court may, while treating its own previous decisions as
normally binding, depart from a previous decision when it appears to it right
to do so; and all other courts shall be bound to follow the decisions of the
Supreme Court on questions of law.”

It needs to be stressed, right from the outset, that this restatement applies exclusively
to the exercise of the supervisory jurisdiction of the Ghanaian Supreme Court and not
to that of the High Court. When the High Court is exercising its supervisory
jurisdiction, the case-law developed in England remains highly persuasive to guide it
in reaching decisions on the Ghanaian law. It is because the Gambian High Court’s
power of judicial review is the only one on offer in the Gambian jurisdiction that I
have said that Ghanaian cases decided by the Supreme Court will need to be treated
with caution.

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An Overview of the Law

A non-jurisdictional error of law which is not patent on the face of the record

The restatement makes it clear that in Ghana the supervisory jurisdiction of the
Supreme Court cannot be invoked in respect of a non-jurisdictional error of law which
is not patent on the face of the record. This implies not following the famous English
case of Anisminic v Foreign Compensation Commission [1969] 2 A.C.147 on this
issue. This is an important retreat from the direction of English law and represents a
recognition of the stature of the High Court and the Court of Appeal and the need not
to treat them like inferior courts. This consideration does not apply in relation to the
Gambian jurisdiction and therefore there is no reason not to follow the Anisminic
case.

The facts of the Anisminic case are well-known: the Foreign Compensation
Commission had jurisdiction, under the Foreign Compensation (Egypt)
(Determination and Registration of Claims) Order 1962, to determine entitlement to
participate in the Egyptian Compensation Fund. It made a determination that the
plaintiffs in the case, whose property had been sequestrated by the Egyptian
Government, had failed to establish a claim under the Order. The plaintiffs then
brought an action against the Commission and its legal adviser for a declaration that
the determination was invalid or a nullity, on the ground that the Commission had
misconstrued the Order. The defendants contended that the High Court had no
jurisdiction to entertain the proceedings. The High Court accepted jurisdiction and
held the determination to be a nullity. This decision was reversed on appeal to the
Court of Appeal and on a further appeal to the House of Lords, the Court of Appeal
was reversed. In the House of Lords, Lord Reid had this to say:

“It has sometimes been said that it is only where a tribunal acts without
jurisdiction that its decision is a nullity. But in such cases the word
“jurisdiction” has been used in a very wide sense, and I have come to the
conclusion that it is better not to use the term except in the narrow and original
sense of the tribunal being entitled to enter on the inquiry in question. But
there are many cases where, although the tribunal had jurisdiction to enter on

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 the inquiry, it has done or failed to do something in the course of the inquiry
which is of such nature that its decision is a nullity. It may have given its
decision in bad faith. It may have made a decision which it had no power to
make. It may have failed in the course of the inquiry to comply with the
requirements of natural justice. It may in perfect good faith have
misconstrued the provisions giving it power to act so that it failed to deal with
the question remitted to it and decided some question which was not remitted
to it. It may have refused to take into account something which it was
required to take into account. Or it may have based its decision on some
matter which, under the provisions setting it up, it had no right to take into
account. I do not intend this list to be exhaustive. But if it decides a question
remitted to it for decision without committing any of these errors it is as much
entitled to decide that question wrongly as it is to decide it rightly. I
understand that some confusion has been caused by my having said in Reg. v
Governor of Brixton Prison, Ex parte Armah [1968] A.C.192, 234 that if a
tribunal has jurisdiction to go right it has jurisdiction to go wrong. So it has, if
one uses “jurisdiction” in the narrow original sense. If it is entitled to enter on
the inquiry and does not do any of those things which I have mentioned in the
course of the proceedings, then its decision is equally valid whether it is right
or wrong subject only to the power of the court in certain circumstances to
correct an error of law.”

For analytical purposes, let us review some of the elements in the formulation in the
Ex parte CHRAJ case.

i) Non-jurisdictional error of law

In English law, certiorari and prohibition now lie in respect of non-jurisdictional error
of law, whether patent on the face of the record or not. Thus, as Lord Browne-
Wilkinson said in R v Hull University Visitor, ex p. Page [1993] A.C. 682 at 701:

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 “In my judgment the decision in Anisminic Ltd. v Foreign Compensation
Commission [1969] 2 A.C. 147 rendered obsolete the distinction between
errors of law on the face of the record and other errors of law by extending the
doctrine of ultra vires. Thenceforward it was to be taken that Parliament had
only conferred the decision-making power on the basis that it was to be
exercised on the correct legal basis: a misdirection in law in making the
decision therefore rendered the decision ultra vires. Professor Wade considers
that the true effect of Anisminic is still in doubt: Administrative Law, 6th ed.,
pp. 299 et seq. But in my judgment the decision in O’Reilly v Mackman
[1983] 2 A.C. 237 establishes the law in the sense that I have stated.”

Thus any administrative tribunal, inferior court or public official who or which
commits an error of law in making a decision is regarded as having exceeded its
authority or jurisdiction, as the case may be. Judicial review is then available to
remedy that error of law. This I believe is the law in the Gambia as well.

This view of the law is, however, not appropriate in relation to the High Court and the
Court of Appeal in Ghana and therefore is changed in the restatement set out above.
The judges of these courts are presumed to know the law (or, as the saying goes “the
law is in their bosom”) and their courts have unlimited common law jurisdiction,
subject only to the limits set by the Constitution, and therefore they cannot be
legitimately viewed as exceeding their jurisdiction if they make an error of law
Thus, the Ex Parte CHRAJ case holds that the mere fact that a High Court judge has
made a mistake of law does take him outside his jurisdiction. Such error of law
cannot found the invocation of the supervisory jurisdiction of the Supreme Court,
unless the error is patent on the face of the record. This distinction is meaningless in
the Gambian jurisdiction and any error of law made by an inferior tribunal, authority
or official in arriving at a decision makes that decision subject to judicial review.

The restatement of the law on judicial review in the Ex Parte CHRAJ case is thus not
correctly reflective of Gambian law. What more represents Gambian law is the
famous summary of the law contained in Lord Diplock’s judgment in Council of Civil
Service Unions v Minister for the Civil Service [1985] AC 374, the so-called GCHQ
case. In accordance with it, the English courts now recognise three broad grounds of

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judicial review, namely illegality, irrationality and procedural impropriety. These
three grounds were expressed as follows by Lord Diplock in Council of Civil Service
Unions v Minister for the Civil Service [1985] AC 374 at p. 410:

“By illegality … I mean that the decision-maker must understand correctly the
law that regulates his decision-making power and give effect to it … By
‘irrationality’ I mean what can now be succinctly referred to as “Wednesbury
unreasonableness’ … It applies to a decision which is so outrageous in its
defiance of logic or of accepted moral standards that no sensible person who
had applied his mind to the question to be decided could have arrived at it …I
have described the third head as ‘procedural impropriety’ rather than the
failure to observe basic rules of natural justice or failure to act with procedural
fairness towards the person who will be affected by the decision. This is
because susceptibility to judicial review under this head covers also failure by
an administrative tribunal to observe procedural rules that are expressly laid
down in the legislative instrument by which its jurisdiction is conferred, even
where such failure does not involve any denial of natural justice.”

ii) Error patent on the face of the record

The broad ground of illegality thus subsumes the old learning on error on the face of
the record. Clearly, though error patent on the face of the record will make the
decision subject to judicial review, this is an unnecessary category in Gambian law.
Historically, this was a distinction that needed to be made in the course of the
evolution of judicial review in the English and other Commonwealth jurisdictions.
But it is no longer needed. An illustrative Ghanaian authority in this regard is
Republic v High Court Registrar, Kumasi and Anor; Ex parte Yiadom I [1984-86] 2
GLR 606. In this case, Adade JSC expressed the scope of certiorari thus (at p. 615):

“Certiorari lies, apart from jurisdictional situations, to correct errors of law apparent
on the face of the record.”

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What then is the meaning of an error patent on the face of the record. Annan JA
provides an explanation of the concept of the “record”, which he derived from English
law in Republic v Accra Special Circuit Court; ex parte Akosah [1978] GLR 212 at p.
216:

“As was pointed out to counsel for the appellant, in a certiorari application
where no issue as to jurisdiction is raised and where argument is limited to the
matter of error of law, it must be shown not only that the decision complained
of is erroneous but that the decision flows from an error of law apparent on the
record. And the record, for this purpose, cannot be the whole of the
proceedings up to the ruling attacked as erroneous. Counsel urged a contrary
view and sought, with some persistence, to make use of the evidence to make
out his case. The court thought it right to resist this effort for the point is not
without authority. In R v Northumberland Compensation Appeal Tribunal; ex
parte Shaw [1952] 1 All ER 122 at 130, C.A. Denning L.J (as he then was)
framed that issue in this way:

“It will have been seen throughout all the cases there is one governing
rule – certiorari is only available to quash a decision for error of law if
the error appears on the face of the record. What, then, is the record?”

And his answer at p. 131:

“I think the record must contain at least the document which initiates
the proceedings, the pleadings, if any, and the adjudication, but not the
evidence, nor the reasons, unless the tribunal chooses to incorporate
them. If the tribunal does state its reasons, and those reasons are
wrong in law, certiorari lies to quash the decision.” “

It should be stressed again that cases such as these are only of historical interest, since
in England and the Gambia currently it is not necessary to characterise an error as
being patent on the face of the record. All errors of law can found the invocation of
certiorari, in any case.

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 iii) Jurisdictional Error of law

Another subset within the category of illegality is jurisdictional error of law.

Currently, whether an error is jurisdictional or non-jurisdictional is only of historical
interest in the Gambian jurisdiction, since any error of law can found judicial review
anyway.

Grounds for the Invocation of the Supervisory Jurisdiction of the High Court

Let me now summarise the three grounds for judicial review by the High Court:
namely, illegality, irrationality (or unreasonableness) and procedural impropriety.

i) Illegality
Beyond errors of law, whether as to jurisdiction, or on the face of the record, that I
have touched upon above, I would like next to address, more generally, illegality as a
ground for judicial review. One of the leading English textbooks declares that 3:

“A decision is illegal if:

1) It contravenes or exceeds the terms of the power which authorises the
making of the decision; or
2) It pursues an objective other than that for which the power to make the
decision was conferred.”

When the High Court considers whether the making of a decision is illegal on this
ground, its task is to interpret the legal instrument conferring power on the entity
concerned in order to determine whether the decision taken is within the “four
corners” of the power. There is a massive amount of case law in England illustrating
this proposition. In the short presentation that I am making, it is not necessary to
enter into an examination of this extensive case law.

ii) Irrationality (or unreasonableness)

This ground is distinct from illegality, in that while illegality answers the question
whether the decision-maker has strayed from the “four corners” of his power, the

11
question under this head is whether the power conferred has been properly used.
Under this head, it is customary to refer to Lord Greene’s famous formulation in
Associated Provincial Picture Houses Ltd. v Wednesbury Corp. 4 that the courts will
interfere on this ground only if a decision “is so unreasonable that no reasonable
authority could ever come to it.”

iii) Procedural Impropriety (including Denial of Natural Justice)

Denial of natural justice or, as it is increasingly (and more modernly) referred to these
days, absence of procedural fairness, is a ground for the invocation of the supervisory
jurisdiction which is independent of the first two grounds already referred to. Indeed
in Republic v High Court, Denu; Ex Parte Agbesi Awusu II (No. 2) [2003-2004]
SCGLR 907, I had the opportunity to make this clear in the following passage from
my judgment there, where I was commenting on the restatement of the law regarding
error of law, pronounced by the Ghana Supreme Court in the Ex Parte CHRAJ case
(at p. 923):

“Of course, an allegation of bias or real likelihood of bias is not one of error of
law and thus does not really come within the ambit of the restatement set out
above. Bias or real likelihood of bias remains a valid ground for the exercise
of this Court’s supervisory jurisdiction. I have in my Ruling today in Republic
v The High Court, Denu; Ex Parte Torgbi Agbesi Awusu II (Suit No. CM
61/2003) already set out my understanding of the law on judicial
disqualification for bias or real likelihood of bias and I do not intend to repeat
it in this Ruling. I propose to apply that understanding to the facts of this case.

I wish, however, to make the following further explanatory remarks.

Whenever bias or real likelihood of bias affects a judgment or ruling, it should
be set aside, irrespective of whether an appeal is available in respect of it or
even if it has been delivered by the highest court in the land. Indeed in the
Pinochet case (R v Bow Street Metropolitan Stipendiary Magistrate, ex p.
Pinochet Ugarte (No.2) [2000] 1 AC 119), the decision of the House of Lords,
the final court of appeal in England, was set aside by a different panel, because
one of the judges on the panel which had decided the merits of the case

12
 regarding ex-President Pinochet’s extradition application was held to have had
an interest in the outcome of that case and therefore came within the automatic
disqualification rule. This vitiating quality of bias or real likelihood of bias is
insisted upon in order that in the famous words of Lord Hewart C.J. in R.v
Sussex Justices, Ex parte McCarthy [1924] 1 K.B.256 at p. 259: “…justice
should not only be done, but should manifestly and undoubtedly be seen to be
done.”

Natural justice, or procedural fairness, requires adherence to the principles

encapsulated in the well-known latin maxims of: nemo iudex causae suae and audi
alteram partem. I need hardly expatiate on these to an audience such as this and you
are also aware of the case-law on the two maxims.

A Grey Area regarding Judicial Review

There is a grey area which needs further exploration. In my own personal view, the
English precedents are worth following in relation to non-judicial entities. Thus
where certiorari is invoked in relation to officials and administrative bodies, there is
no reason why any error of law on their part should not attract supervisory
intervention by the High Court. There is more of a policy issue where the object of
the application is an inferior court. The view of the High Court of Australia is that
inferior courts should be given a treatment similar to what the Supreme Court of
Ghana formulated for the superior courts in the Ex Parte CHRAJ case. In a passage
that was approved by the Supreme Court in the Ex Parte CHRAJ case, the High Court
of Australia (comprising Brennan, Deane, Toohey, Gaudron and McHugh JJ) said in
Craig v The State of South Australia (supra),:

“It was submitted on behalf of the respondent State of South Australia that an
inferior court commits jurisdictional error whenever it addresses the wrong
issue or asks itself the wrong question. Particular reliance was placed, in
support of that submission, upon the well-known passage of Lord Reid’s
speech in Anisminic Limited v Foreign Compensation Commission:

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(the court then quotes the well-known passage of Lord Reid’s speech and
continues as follows)
…
In Anisminic, the respondent Commission was an administrative tribunal.
Read in context, the above comments should, in our view, be understood as
not intended to refer to a court of law. That was recognized by Lord Diplock
in In Re Racal Communications and affirmed by the English Divisional Court
in R v Surrey Coroner; Ex parte Campbell [1982] QB 661 at 675. It is true
that Lord Reid’s comments were subsequently suggested by Lord Diplock
(O’Reilly v Mackman [1983] 2 AC 237 at 278) and held by the Divisional
Court (R. v Greater Manchester Coroner Ex parte Tal [1985] QB 67 at 81-83)
to be also applicable to an inferior court with the result that the distinction
between jurisdictional error and error within jurisdiction has been effectively
abolished in England (Pearlman v Harrow School [1979] QB 56 at 69;
O’Reilly v Mackman [1983] 2 AC 237 at 278. But cf South East Asia Fire
Bricks Sdn Bhd v Non-Metallic Mineral Products Manufacturing Employees
Union [1981] AC 363.) That distinction has not, however, been discarded in
this country (See, in particular, Public Service Association (SA) v Federated
Clerks’ Union (1991) 173 CLR 132 at 141, 149, 165; R v Gray; Ex parte
Marsh (1985) 157 CLR 351 at 371-372. And see also Houssein v Under
Secretary of Industrial Relations and Technology (NSW) (1982) 148 CLR 88
at 93-95; Hockey v Yelland (1984) 157 CLR 124 at 130; R v Gray; Ex parte
Marsh (1985) 157 CLR 351 at 374-377) and, for the reasons which follow, we
consider that Lord Reid’s comments should not be accepted here as an
authoritative statement of what constitutes jurisdictional error by an inferior
court for the purposes of certiorari. In that regard, it is important to bear in
mind a critical distinction which exists between administrative tribunals and
courts of law.

At least in the absence of a contrary intent in the statute or other instrument

which established it, an administrative tribunal lacks authority either to
authoritatively determine questions of law or to make an order or decision
otherwise than in accordance with the law. That point was made by Lord
Diplock in In re Racal Communications Ltd.[1981]AC 374 at p.383:

14
 “Parliament can, of course, if it so desires, confer upon administrative
tribunals or authorities power to decide questions of law as well as
questions of fact or of administrative policy; but this requires clear
words, for the presumption is that where a decision-making power is
conferred on a tribunal or authority that is not a court of law,
Parliament did not intend to do so.”

The position is, of course, a fortiori in this country where constitutional

limitations arising from the doctrine of the separation of judicial and executive
powers may preclude legislative competence to confer judicial power upon an
administrative tribunal. If such an administrative tribunal falls into an error of
law which causes it to identify a wrong issue, to ask itself a wrong question, to
ignore relevant material, to rely on irrelevant material or, at least in some
circumstances, to make an erroneous finding or to reach a mistaken
conclusion, and the tribunal’s exercise or purported exercise of power is
thereby affected, it exceeds its authority or powers. Such an error of law is
jurisdictional error which will invalidate any order or decision of the tribunal
which reflects it.

In contrast, the ordinary jurisdiction of a court of law encompasses authority

to decide questions of law, as well as questions of fact, involved in matters
which it has jurisdiction to determine. The identification of relevant issues,
the formulation of relevant questions and the determination of what is and
what is not relevant evidence are all routine steps in the discharge of that
ordinary jurisdiction. Demonstrable mistake in the identification of such
issues or the formulation of such questions will commonly involve error of
law which may, if an appeal is available and is pursued, be corrected by an
appellate court and, depending on the circumstances, found an order setting
aside the order or decision of the inferior court. Such mistake on the part of an
inferior court entrusted with authority to identify, formulate and determine
such issues and questions will not, however, ordinarily constitute jurisdictional
error. Similarly, a failure by an inferior court to take into account some matter
which it was, as a matter of law, required to take into account in determining a

15
 question within jurisdiction or reliance by such court upon some irrelevant
matter upon which it was, as a matter of law, not entitled to rely in
determining such a question will not ordinarily involve jurisdictional error.”

This analysis by the High Court of Australia clearly provides food for thought in
relation to this grey area. My own personal extra-judicial view is that the Anisminic
logic should not apply to any court of law. A mistake of law, simpliciter, by any
court, inferior or superior, should not be regarded as taking it outside of its
jurisdiction. The remedy should be an appeal and not judicial review. For me, the
Anisminic logic makes sense only in relation to administrative bodies and officials.

IV) PRACTICE AND PROCEDURE FOR JUDICIAL REVIEW IN THE

FIRST SENSE

The High Court Rules set out in the Second Schedule to the Courts Act (Cap. 6:01) do
not appear to contain any explicit rules on judicial review. In the absence of such
explicit rules, the High Court of the Gambia has to apply the practice and procedure
of the English High Court as they existed on 18th February 1965. This is a
consequence of section 3(1) of the Courts Act (Cap. 6:01) which provides that:

“The Supreme Court (now known as the High Court under the 1997
Constitution) shall have the jurisdiction and powers provided by the
Constitution and all the jurisdiction, powers and authorities which were vested
in or capable of being exercised by Her Majesty’s High Court of Justice in
England immediately before the eighteenth day of February, 1965.”

This inherited jurisdiction is confirmed by article 133 of the 1997 Constitution which
reads as follows:

“The High Court shall have supervisory jurisdiction over all lower courts and
adjudicatory authorities in The Gambia, and, in the exercise of its supervisory
jurisdiction, shall have power to issue directions, orders or writs, including
writs of habeas corpus, orders of certiorari, mandamus and prohibition as it

16
 may consider appropriate for the purposes of enforcing its supervisory
powers.”

This provision is in pari materia with article 141 of the Ghana Constitution of 1992. I
have ventured, judicially, to construe the Ghanaian provision as not limiting the High
Court in Ghana to a jurisdiction less ample than that exercised by the English High
Court. This is what I said in Republic v Fast Track High Court, Accra, Ex parte
Commission on Human Rights and Administrative Justice, (Anane, Interested
Party)[2008] SCGLR :

“. In my view, the common law on the prerogative writs and orders continues
in force as existing law alongside that constitutional provision, which merely
endorses a part of that law and buttresses it constitutionally, without setting
aside the other parts with which it does not expressly deal. Article 141 of the
current 1992 Constitution is accordingly engrafted on to the preexisting
common law on the prerogative writs and orders, since they are not
inconsistent one with the other. In other words, there is no implied abolition
of the common law supervisory jurisdiction of the High Court, since article
141 is not incompatible with it. This was, in effect, the view taken
unanimously by the Supreme Court in Republic v High Court, Accra; Ex parte
CHRAJ [2003-2004] SCGLR 312. In dismissing CHRAJ’s argument that it
was neither a lower court nor a lower adjudicating authority and therefore not
subject to the power of judicial review of the High Court, I said, delivering the
unanimous judgment of the Court, that (at pp. 323 – 324):

“In any case, whether it is an adjudicating body or not is irrelevant to

the jurisdiction of the High Court to exercise judicial review over it. It
is not a precondition at common law to the deployment of the
prerogative writs and orders that the subject of these processes be an
adjudicating body. These orders are the mechanism whereby
administrative law principles are applied. Article 141 merely confirms
this pre-existing common law power.”

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 In short, my purposive interpretation of article 141 of the 1992 Constitution is
that it is not inconsistent with the continued existence of the common law
relating to the prerogative writs and orders. Accordingly, the body of English
administrative case law which has evolved around these orders is available to
the Ghanaian High Court as persuasive authorities, to be customised to our
circumstances as appropriate. The development of administrative law
through judicial review was one of the crowning achievements of the English
jurisdiction in the second half of the twentieth century and it would be
defeating one of the purposes sought by the Constitutional Commission which
proposed the establishment of the High Court under the 1969 Constitution, if
the Ghanaian jurisdiction were, through an interpretation by this Court, to be
deprived of the benefit of this common law advance in the protection of the
liberty of the citizen in his or her dealings with the administration. In sum,
article 141 of the 1992 Constitution is supplemented by the existing common
law on the prerogative orders.”

This point about the jurisdiction of the High Court not being limited to “lower courts
and adjudicatory authorities in The Gambia” is an important one, since if judicial
review is thus limited, then public officials and bodies which are not adjudicatory
would escape the jurisdiction. Mandamus, for example, is usually directed at such
officials and bodies, rather than at lower courts and adjudicatory authorities.

My judicial remarks in the Ex parte CHRAJ case set out above are fully relevant to
the Gambian jurisdiction as well. In this jurisdiction, they are buttressed by section
16 the Law of England (Application) Act (Cap. 5 of the 1990 Revised Edition of the
Laws of the Gambia. It provides that in any case in which the High Court of Justice
in England was immediately before the eighteenth day of February, 1965, by virtue of
the provisions of section 7 of the Administration of Justice (Miscellaneous
Provisions) Act, 1938, empowered to make an order of mandamus, prohibition or
certiorari, the High Court shall have power to make a similar order. The provision
also lays down an obligation for Rules of Court to be made under subsection 55(1) of
the Courts Act:

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 “(a) prescribing the procedure and the fees payable on documents filed or
issued in cases where an order of mandamus, prohibition or certiorari
is sought;
(b) requiring, except in such cases as may be specified in the rules, that
leave shall be obtained before an application is made for any such
order;
(c) requiring that, where leave is obtained, no relief shall be granted and
no ground relied upon, except with the leave of the court, other than
the relief and grounds specified when the application for leave was
made.”

Action needs to be taken by the Gambian authorities to discharge this obligation.

Pending the promulgation of appropriate Gambian rules, the current law and practice
is to follow the law and practice of the English High Court. Under the English rules,
a claim for judicial review is a two-stage process. It begins with an application for
leave to move for judicial review, which is made ex parte. It is only after leave has
been granted that the applicant can proceed to make the substantive application for
judicial review. To obtain leave the applicant must establish:
1. That he has locus standi or standing, meaning he must have a sufficient
interest in the matter to which the application relates.
2. That he has a case which is sufficiently arguable to justify a full substantive
hearing.
3. That he has applied for leave promptly.

This account of the procedure for the initiation of judicial review applications in the
English High Court is derived from the provisions in sections 29, 31 and 43 of the
Supreme Court Act 1981 and Order 53. Until April 1999, Order 53 formed part of
the Rules of the Supreme Court. The Order now forms part of the new Civil
Procedure Rules, which re-enacted it with some changes in terminology, but not in
substance. 5

V) A STATEMENT OF THE LAW ON JUDICIAL REVIEW IN THE SECOND

SENSE

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Judicial review in the second sense flows from Article 4 of the Gambian Constitution
which states that:

“The Constitution is the supreme law of The Gambia and any other law found
to be inconsistent with any provision of this Constitution shall, to the extent of
the inconsistency be void.”

The authority to exercise judicial review pursuant to this concept of supremacy of the
Constitution is vested exclusively in the Supreme Court. Judicial review in the
second sense is thus the function of the Supreme Court. The Supreme Court is given
explicit jurisdiction in section 127 of the Constitution as follows:

“The Supreme Court shall have an exclusive original jurisdiction

(a) For the interpretation or enforcement of any provision of

this Constitution other than any provision of sections 18 to
33 or section 36 (5) (which relate to fundamental rights and
freedoms);
(b) On any question whether any law was made in excess of the
powers conferred by this Constitution or any other law
upon the National Assembly or any other person or
authority;
(c) On any question as to whether or not any person was
validly elected to the office of President or was validly
elected to, or vacated his or her seat in, ...”

My brother, Dotse JSC judicially summarised Gambian law on this issue pithily in
United Democratic Party v Attorney-General [2002-2008] GLR 331 at 347, as
follows:

“The Constitution of the Gambia is supreme. The supremacy is provided for

in section 4 of the Constitution. It occupies the first place in the Legal System
of the Gambia and its jurisprudence. It is the beginning and the end.”

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Judicial review in this second sense is invoked by Writ. Rule 45(1) of the Supreme
Court Rules, 1999 provides that:

“Except as otherwise provided in these Rules, an action brought to invoke the

original jurisdiction of the Court shall be commenced by writ in Form 27 set
out in Part III of the Schedule to these Rules which shall be signed by the
plaintiff or his counsel.”
The writ has to be either accompanied by a Statement of Case or else the Statement of
Case has to be filed within fourteen days of the filing of the writ. 6 The Statement of
Case is required by Rule 46(2) to state the facts and particulars upon which the
plaintiff seeks to rely, verified by an affidavit, and to indicate the number of
witnesses, if any, to be called. Also, it is to supply a list and copies of the decided
cases and of the statute law on which the plaintiff intends to rely.

There is a subtle difference between these requirements for a Statement of Case

relating to the invocation of the original jurisdiction of the Supreme Court and the
Statement of Case needed in connection with a civil appeal, which is provided for in
Rule 17(6). The latter Statement of Case must set out the full case and arguments to
be advanced by the party, including all relevant authorities and references to the
decided cases and statute law upon which the party intends to rely. The Statement of
Case for an appeal is thus intended to contain the full arguments of the parties, while
in contrast the Statement of Case for the invocation of the original jurisdiction is to set
out the facts relied on, verified by an affidavit, and a list of the decided cases and
statutes to be relied on and copies of them. The Rule thus does not seem to
contemplate the full legal arguments being set out. Nevertheless, in Ghana, which has
a rule in pari materia with this Rule, the practice of the Bar is to set out a full legal
argument anyway, and the Bench has tended to acquiesce in this.

It is, however, not only when the Supreme Court’s jurisdiction has been invoked in
this way that judicial review in the second sense may be exercised. The Supreme
Court may, suo motu, raise for determination an issue of constitutional interpretation
that comes to its attention in the course of an appeal. This is what happened in
Graham v Sowe , 7 where a plaintiff sued for a declaration that a judgment delivered
by the High Court was void on account of it not having been registered in accordance

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with section 12(1) of the Land (Registration of Deeds) Act (Cap. 57:01). In response,
the Supreme Court held that section 12(1) to the extent that it rendered a final
judgment of the High Court void was unconstitutional, in that it was inconsistent with
the provisions of section 120(2) of the 1997 Constitution which states that:

1) “The judicial power of The Gambia is vested in the courts and shall be
exercised by them according to the respective jurisdictions conferred
on them by law.”

Section 100(2)(c) also provides as follows:

“The National Assembly shall not pass a Bill

.......
c) to alter the decision or judgment of a Court in any proceedings to the
prejudice of any party to those proceedings, or deprive any person
retroactively of vested or acquired rights, but subject thereto, the
National Assembly may pass Bills designed to have retroactive effect.”
The Supreme Court held that s.12(1) of the Land (Registration of Deeds) Act was
unconstitutional and void to the extent that it declared a judgment of the High Court
void.

VI) CONCLUDING REMARKS

The exercise of judicial review in both senses is a vital tool for upholding
constitutionalism and the rule of law. I would like to end my remarks with a
quotation from a judgment I delivered in the Ghana Supreme Court, which sums up
the significance of this judicial role. It is from the case of Adofo v Attorney-General
& Cocobod : 8

“The doctrine of the supremacy of the Constitution should logically imply the

power of judicial review of the constitutionality of legislation in order to

enforce that supremacy. Thus, even if there had been no express power in the

Constitution for this Court to strike down offending legislation, we would

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have been willing to imply one. Such implication is, obviously, unnecessary

because of the explicit power conferred on this Court by Article 2(1) of the

Constitution, which has been repeatedly described in this Court as a special

jurisdiction. This special jurisdiction to strike down legislation is made an

exclusive one of this Court by Article 130 of the Constitution. The net effect

of Article 130(1) is that, where a Plaintiff seeks to obtain a declaration that a

statute or part of a statute is void as “made in excess of the powers conferred

on Parliament or any other authority or person by law or under this

Constitution”, the Supreme Court has exclusive original jurisdiction in the

matter.

The power of judicial review of the constitutionality of legislation, which is

explicitly conferred on this Court by Articles 2(1) and 130(1) of the

Constitution, is one that should be vigilantly deployed by this Court in

discharge of the obligation of this Court to uphold the Constitution of this

land. It is a power over whose legitimacy constitutional scholars in

constitutional democracies have often agonised. Because of the clarity of the

provisions which vest this Court with that jurisdiction, we do not think this

Court need agonise about the legitimacy of its power. The framers of the

Constitution wanted this Court to exercise this jurisdiction and that is, for us, a

sufficient basis for the legitimacy of the power. However, the reason why

some constitutional scholars agonise over the legitimacy of the power is that

judges are unelected and therefore are not electorally accountable. On the

other hand, this very lack of electoral accountability is probably one of the

justifications or rationales for judicial review. The Constitution expects

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 judges to protect individuals and minorities from the power of the majority.

The fundamental human rights and freedoms enshrined in Chapter 5 of the

Constitution are intended to facilitate the fulfilment by judges of this

expectation. The fact that judges are unelected in democracies such as ours

strengthens their capacity to protect individuals and minorities because their

tenure is not dependent on the short-term wishes of the majority of the

electorate. Marjoritarian institutions such as Parliament and the Executive are

less well-suited to the protection of the interests of individuals and minorities

because of the pressure applied on them by the will of the majority which they

represent.”

These remarks are as true for the Gambia as they are for Ghana. With them, I rest my

case.

1
See Hilaire Barnett, Constitutional and Administrative Law (Cavendish Publishing, London,
5th Ed., 2004) p. 709.
2
5 US (1 Cranch) 137 (1803)
3
See De Smith, Woolf & Jowell’s Principles of Judicial Review (Sweet & Maxwell, 1999)
151.
44
[1948] 1 K.B. 223 at 229-230
5
See De Smith, Woolf & Jowell’s op cit. 561.
6
See Rule 46(1) of the Rules of the Supreme Court, 1999.
7
Unreported judgment of the Supreme Court (Civil Appeal No. 4/2006), delivered on 20th
November, 2009.
8
[2005-2006] SCGLR 42 at 47-48.

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