JUDICIAL REVIEW Flashcards
Section 80, Civil Procedure Act
gives the substantive right of review in certain circumstances.
While Order 45, Civil Procedure Rules provides the procedure:
* A party who is aggrieved by a judgment of a court may apply to the same court to review that decision where:
a. They have not preferred an appeal on that decision; or
b. Such a decree or order is not appealable (Order 45, Rule 1(1), CPR)
What is the meaning of FUNCTUS OFFICIO?
- The provisions relating to review constitute an exception to the general rule that once a judgment is signed and
pronounced by the court it becomes functus officio - That means the court ceases to have any control over the matter or any jurisdiction to alter it
WHO MAY APPLY FOR A REVIEW?
- Any person aggrieved by the decree or order from which an appeal is allowed but from which no appeal has been preferred, or by a decree or order from which no appeal is allowed, may apply for review of judgment to the court that passed the
decree or made an order - The ‘aggrieved party’ may be a party to the suit or any third party, but the third party must first establish that they are an aggrieved person
o An aggrieved party is a person who has suffered such legal grievance, or against whom a decision has been made,or a person who has been deprived of something or affected by the decision of the court
o In other words, a person who is not a party to the decree or order cannot apply for review because such a decree will usually not be binding on such a person and therefore cannot be said to have aggrieved them within the meaning of Order 45 and Section 80
The orders that can be obtained after a review are?
a) The judgment may be varied, i.e. you will cease having the same judgment that there was before
b) The judgment will be set aside, and once the court sets aside the judgment it will order a re-hearing of that matter.
This can only happen where there is new and compelling evidence; or where there is sufficient reason
What are the CONDITIONS FOR REVIEW?
(i) Discovery of new and important matters of evidence that the court did not have when making a decision
(ii) Where there is a mistake or error apparent on the face of the record
(iii) For any other sufficient reason, where ‘sufficient’ should be read as meaning sufficiently of a kind analogous to (a) and (b)above
On what grounds is review permissible?
if the applicant can show that there has been a discovery of new and important matter of evidence
* The applicant must also show that the discovery could not have been made earlier despite the exercise of due diligence on their part
* The applicant has to show the court, and usually with a supporting affidavit, that they were not aware of this evidence – i.e. it has just come to their attention
* The applicant would have to show the court that they exercised due diligence and did not find that information
* The evidence must be relevant and must be important – i.e. important enough that it is capable of altering the judgment
What is the SlIP RULE?
Section 999, Civil Procedure Act
the court, suo moto, can undertake to correct an error on the face of the judgment
What is the procedure for review at HEARING?
- An application for review commences ordinarily with an ex parte application by the aggrieved party. Upon such application being made, the court may reject it summarily if there is no sufficient ground, or it may issue a notice calling upon the opposing party to show cause why review should not be granted
- Where the application is admitted, the court shall order the party making the application to serve the same upon the other party and issue a Notice to Show Cause, which contains 3 things:
a) It will give an order to the Respondent of the application to file their reply (by way of a Replying Affidavit)
b) The amount of time within which the Respondent is supposed to file and serve their Replying Affidavit
c) The inter-parties date of hearing - The application for review shall be heard inter partes by the same court that posted the decree
- Upon hearing both parties, if the court find that there is no basis for review, it may reject the application
- However, if the court finds there is a basis, the rule will be made absolute, i.e., the application will be allowed and the court
will order the case to be re-heard - The matter will be heard on the merits, usually the court will hear it at once or may it will fix for a hearing for a later date
- The court will hear the matter in relation to the case, in relation to a mistake or to new evidence that has come into light * Upon completion of the hearing court will either confirm its original decree or vary it
- If any party feels aggrieved by the varied decision or the decision reinstated, they can appeal
- One should go on appeal on the right decision, hence the right to review
What does the SUPREME COURT ACT state in
Section 21(4)?
Within fourteen days of delivery of its Judgment, Ruling or Order, the Court may, on its own motion
or on application by any party with notice to the other or others, correct any oversight or clerical error
of computation or other error apparent on such Judgment, Ruling or Order and such correction shall
constitute part of the Judgment, Ruling or Order of the Court
Court may, upon application by a party, or on its own motion, review, any of its Judgments, Rulings or Orders, in exceptional circumstances, so as to meet the ends of justice. Such circumstances shall be limited to situations where….
(i) The Judgment, Ruling, or Order, is obtained, by fraud or deceit;
(ii) The Judgment, Ruling, or Order, is a nullity, such as, when the Court itself was not competent;
(iii) The Court was misled into giving Judgment, Ruling or Order, under a mistaken belief that the parties had
consented thereto;
(iv) The Judgment or Ruling, was rendered, on the basis of a repealed law, or as a result of, a deliberately concealed statutory provision
