TABLA 2: POBLACIÓN ECONÓMICAMENTE ACTIVA DE 5 AÑOS Y MÁS, SEGÚN RAMAS DE ACTIVIDAD
2.2. Características de las PYMES en el Ecuador.
a) It serves as a check on the exercise of the powers of the branches of government.
b) It curbs or reduces arbitrariness on the part of public officers, as they are made to comply with the law in the discharge of their official duties. This point is beautifully captured by Former President Shehu Shagari thus:
From the records, the Executive arm has been taken to court a number of times. The legislature arm has similarity has been dragged to court. In each case your lordships gave your verdict. I am glad to say before you that we, on whom these verdicts have been passed, have always respected your pronouncements … it is on record that even where we had cause to feel dissatisfied, we made sure that in exercising our right of appeal, we strictly adhered to the rules and procedures as laid down by law.1
c) It provides the avenue for remedying the wrong done to aggrieved persons by public officers.
d) It instills diligence in Judicial Officers in lower courts, as frequent certiorari orders against the decision of a particular judicial officer question the competence of the same.
3.8 Limitations to prerogative remedies
A court will not be able to exercise its prerogative powers, if there are limitations in entertaining the matter. These limitations include:
a) Lack of locus standi: Where a party who is applying for relief has no locus standi to sue on a matter, then the course of legal action will fail.
b) Absence of right of action: Where right of action is expressly ousted by statute with appropriate words, an aggrieved party may not be able to challenge the act in question. For instance Section 308 of the 1999 Constitution places a restriction on legal proceedings in a court with respect to impeachment proceedings initiated by the legislature.
c) Absence or limitation of right to appeal: where there is no right of appeal or it is limited under statute, such a party may have no recourse than to petition for clemency or pardon by the government in an exercise of the prerogative of mercy by the President or Governor as the case maybe
1 Cited in Fatayi‐Williams CJN, Faces, Cases and Places, p. 175
d) Failure to serve a pre-action notice: a failure by the plaintiff to serve a pre-action notice on the defendant where the law provides for it, usually bars the right to institute court action.
e) Regularity of an action done intra vires. Where an action is regular and has been done intra vires, which is within the powers of the public or administrative authority doing it, then of course, no cause of action will lie for relief.
4.0 Conclusion
From the foregoing it is certain that this rarely used group of remedies is historically important in understanding administrative law and is also important in relation to decisions for which there is no remedy. The student must bear in mind that a person who wants to challenge a government action by judicial review must be prepared to do so in a higher court. There are several problems facing anyone who considers such a step, including the relatively complicated legal work involved, the consequently high legal fees and the intimidating atmosphere of the courts, created by both the physical environment and the high level of legal argument.
The r e m e d i e s a v a i l a b l e are l i m i t e d i n e f f e c t i v e n e s s since t h e c o u r t s a r e concerned, in theory at least, only with the legality of the process rather than whether the decision under challenge was the correct one. Furthermore, all the remedies are discretionary. The court may take into account such factors as delay in seeking the remedy, the futility or usefulness of granting it, and the hardship caused to others by granting it.
5.0 Summary
In summary, you are to bear in mind that committal of an accused at a preliminary inquiry, in the absence of evidence on an essential ingredient in a charge, is a reviewable jurisdictional error. A discharge based on terse and uninformative reasons can successfully result in certiorari and corrective committal. To challenge a search warrant, Certiorari is used to quash a search warrant if the applicant can show a jurisdictional error was made. Human rights is highly premised on the exercise of the remedy of habeas corpus. Probably the most famous prerogative remedy, it brings a party before a Superior Court judge to enable a release order from unlawful imprisonment. It is a method of reviewing detention when there is no statutory method available.
By these remedies, the Superior Court commands an official or an inferior court to perform a
particular act or restore a right or privilege which it has taken away. It forces the performance of legal duties by inferior officials who have failed or refused to perform them. Finally you must bear in mind that the exercise of prerogative remedies are discretionary in nature.
6.0 Tutor Marked Assignment
Discuss each mentioned remedies and cite examples as to the situations where each will be applicable.
7.0 Further Readings/References
1. Bernard Schwartz, Administrative Law (Toronto: Little, Brown & Co., 1976).
2. David Scott & Alexandra Felix, Principles of Administrative Law (Great Britain:
Cavendish Publishing Ltd, 1997).
3. Foulke’s Administrative Law (London: Butterworths, 6th Edition, 1986).
4. H.W.R. Wade, Administrative Law (Oxford: Clarendon Press, 3rd Edition, 1971).
5. Kenneth Culp Davis, Administrative Law and Government (Minnesota: West Publishing Co., 2nd Edition, 1975).
6. Stephen G. Breyer & Richard B. Stewart, Administrative Law and Regulatory Policy (Toronto: Little, Brown and Company, 1979).
7. William Wade & Christopher Forsyth, Administrative Law (Oxford, UK: Clarendon Press, 1994).
MODULE 4