The power of public authorities to change policy is constrained by the legal duty to be fair (and other constraints which the law imposes).

A change of policy which would otherwise be legally unexceptionable may be held unfair by reason of prior action, or inaction, by the authority. See Law LJ at Paragraph 50 R.( Bhatt Murphy) V.Independent Assessor(2008)EWCA.Civ 755. The case is also known as R (Niazi v Secretary of State for the Home Department)

INTRODUCION.

Before delving into the heart of this discussion, it is quite pertinent to consider the meanin of the concept of  Legitimate Expectaion and its Origin.

The doctrine of Legitimate Expectation is developed in the English Administrative Law to ensure procedural fairness; upholding the rule of law.

The concept of Legitimate Expectation demands that a public authority shall respect and apply its stated position or sustained practice in exercising its power on  members of the public Considering its nature, it has been argued  that the doctrine of Legitimate Expectation is not statutorily created  right but a principle of fairness in the exercise of public powers, which is recognised and applied by the court on the rationale that public authorities are bound by an impression they created which induced the public to act in certain way. The expectation arises when a representation is made by a public body it would follow a certain procedure before taking a  decission on the substantive merit of a particular case. See  ”Holding The Tax man to his Word: The Doctrine Of Legitimate Expectation and Tax Administration in Nigeria”  by  Dr Jerome Okoro, a PHD Energy Law & Senior Associate, AELEX Taxation Practice Group.

The doctrine of Legitimate Expectation initially emerged as a result of the rule of Natural Justice of the “right to have a fair hearing” (audi alterem partem) see the publication of the University Of London on Legitimate Expectation. It has been argued from some quarters that the Public Law doctrine of Legitimate Expectation could be contrasted with Private Law doctrine of estoppel.However, it has been held otherwise in the Nigerian case of Revenue v. Halliburton ( WA) Limited (2016)4N.W.L.R ( part 1501) 53. See also the case of Combe v. Combe(1951)2 KB 215 on Promissory Estoppel . Also the definition of Estopel in section 169 of the Evidence Act,2011 renders some help.

It is a well established concept of Administrative Law. See Wade & Forsyth, Administrative Law, at p.447.

Its nature was succinctly put forward by Lord Diplock in the celebrated case of Council of Civil Service Union V. Minister for the Civil Service(1985)AC 37@408-409. For Legitimate Expectation to arise, the decision of the administrative body must affect the person by depriving him of some benefit or advantage which either (1) he had in the past been permitted by the decision maker to enjoy and which he can legitimately permitted to continue to do until there has been communicated to him some rational grounds for withdrawing it and which he has been given an opportunity to comment or (2) he has received an assurance from the decision maker they will not be withdrawn without given him first an opportunity of advancing reasons for contending that they should not be withdrawn.

Also the Final Court of Appeal, Hong Kong Ng, Siu Tung & Ors V. Director Of Immigration(2002)1 HKLRD 561 held  Legitimate Expectation might arise as a result of a promise, representation, practice or policy made,adopted, announced by or on behalf of government or a public authority.

The Brief  Origin of the Concept.

The phrase “legitimate expectations” was first used in 1969 in the case of Schmidt v Secretary of State for Home Affairs [1969] 2 Ch 149, 170 (Lord Denning MR). See also  R v Liverpool Corporation, ex parte Liverpool Taxi Operators’ Association [1972] 2 QB 299, 308 (Lord Denning). Since then,the doctrine has been firmly established as the general principle of Administrative Law.It has been examined by court in the United Kingdom on numerous occasions. The doctrine is normally visited by court where allegedly unreasonable decisions of the executive are challenged. Legitimate Expectations has been categorized into Procedural and substantive.

Procedural legitimate expectation arises where an agency has provided an unequivocal assurance, whether by means of an express promise or an established practice, that it will hear or consult certain people before making a decision. While Substantive legitimate expectation arises  when the public authority has distinctly promised to preserve existing policy for a specific person or group who would be substantially affected by the change, then ordinarily it must keep its promise.see the case of R (Bhatt Murphy) v Independent Assessor supra. See also the South African case of  Administrator, Transvaal v Traub 1989 4 SA 731 (A) (hereafter Traub). In Traub the court found that a long-standing past practice of appointing all the doctors recommended for a particular post had created a legitimate expectation that doctors who had been refused appointment would in fact be appointed or at the very least that they would be given a hearing before being refused appointment (ie a hybrid expectation that was both substantive and procedural in nature). The court afforded this expectation procedural relief: they were entitled to be heard if the administrator wished to depart from its long-standing past practice.

What needs to be proven before Legitimate expectation can be enforeced ?

what needs to be proven have provided in the South African case of Duncan v. Minister of Environmental  Affairs and Tourism and others ( 2010)6 SA 374(SCA). The court held at paragraph 15, set out what needs to be proven for legitimate expectation to be enforced, namely:The representation inducing the expectation must be clear, unambiguous and devoid of any relevant qualifications;

.The expectation must have been induced by the decision maker;

.The expectation must be reasonable; and

.The representation must be one which is competent and lawful for the decision maker  to make.

The court also held further at paragraph 84,that what must be shown is the legitimacy of the expectation of that expectation which led the person whose expectation was so raised to believe that it would receive a procedural benefit.

Does the Concept of Legitimate Expectations Apply Under the Nigerian Law?

The above question would be answered in the positive considering few cases in which the concept has been examined  by our court..The first Nigerian case to be considered under this discussion  Margret Chinyere Stitch V. Attorney General of the Federation & Ors(1986)LPELR- SC.88/1985 . In the above case, Margret Chinyere Stitch bought shipped a Mercedez Benz 280 Salon Car to Nigeria on 22nd February, 1982. She sought to obtain an import licence for the car having fulfilled the laid down conditions before that date. Based on a directive suspending the issuance of import licence for that period, her licence was delayed till 29th of April,1982. In the mean time,on the 20th of April, the then Economic Stabilisation( Temporary Provision)Custom Duties Order 1982 was released, which increased the rate duty payable on that type of car from 33, 1/3 % to 500%. Import Duty has been assessed at #1,449.22k based on the pre existing rate of 33,1/3% rate. After the import licence was issued to her on the 29th, April,1982, the Board of Custom re- assessed her import duty at 14,500.00k based on 500% rate introduced by the new Economic Stabilisaty Order 20th of April, 1982 under which era her licence was issued. The Supreme Court acknowledged the power of the Minister of Commerce had discretionary power under section 3(2) of the Finance Act, 1981 to refuse to grant a licence without stating a reason for such refusal. However, the Court noted that the Minister in exercising his discretionary power must act fairl, and not to the prejudice of the citizens. The Court further held that : an aggrieved person is entitled to invoke judicial review, if he shows that a decision of a public authority  affected him by depriving some beneficiary or advantage which in the past he had been permitted to enjoy and which he legitimately expected to be permitted to continue to enjoy, either until he was given reason for its withdrawal and the opportunity to comment was given that it would not be withdrawn before he had been given opportunity of making representation against the withdrawal.

Another Nigerian case in which the concept of Legitimate Expectation has been examined is Federal Board of Inland Revenue v. Halliburton ( WA) Limited (2016)4N.W.L.R ( part 1501) 53. This writer humbly posit that the fact of the case would not be discussed as the court held that the doctrine was frustrated by the relevant statue applied to the case. However, the court held in the above case that:” what the doctrine postulates is that where a public body or person acting in public authority has issued a promise or has been acting in given way, the members of the public who are to be affected by the scheme of conducting public affairs in the charted manner would by law require the promise or the practice to be honored or kept by the public body or person acting in public authority…”.

Conclusion.

There is a dearth of Nigerian decisions on this area of law as research did not yield enough result. However,it is humbly submitted that the concept of Legitimate Expectation is applicable under the Nigerian law,provided that the applicant can established the  ‘ingredients’ enumerated in the South African case of Duncan v. Minister of Environmental  Affairs and Tourism and others Supra. Although, this is not oblivious of the fact that Nigerian Courts are not bound by foreign decisions.

Timothy Olamide writes from, Faculty of Law, Ahmadu Bello university, Zaria. He can be reached via [email protected] or 08144856315.