All modern systems have this twin channeling: prohibition of challenges that are inconveniently early (inconvenient for court and administration, that is) or are inconveniently late: challenge comes when, and only when, it is convenient for courts and administration.[1]
The courts have treated as hypothetical, questions that come too early and are thus unripe, or which come too late and are therefore moot.
Ripeness has to do with whether a matter is well enough developed for the court to exercise review. In other words, ripeness is concerned with maturity—that is, whether a case is sufficiently mature to be heard by a court. Accordingly, agency investigations, hearings, and rules that are under consideration but not finalized may not be challenged through judicial review.
The requirement that a case must be “ripe for review” before a court may hear it means that agencies’ actions must first have an adverse effect, concreteness, and imminence. If rights or obligations have been determined by the agency action, or legal consequences will flow from it, then a court will hear the complaint.[2]
“Ripeness” implies what one would think it implies. When a contested agency determination is ripe, it is mature enough for judicial review. Just as apples need to ripen before they are edible, disputes with administrative agencies need to ripen before the courts will hear them. If the court perceives a controversy as green, it will regard the controversy as premature and deny review until it reaches maturity.
The ripeness principle serves a dual purpose. That is, the ripeness principle functions to protect the administrative process from undue interference by the courts as well as to protect the courts from having to hear controversies that the courts were not designed to decide.[3]
Ripeness under Ethiopian Administrative Procedure Proclamation
Article 51 of the proclamation states that a judicial review may only be sought against a final decision of an agency. The provision is a ripeness requirement for judicial review. Finality is not defined by the proclamation. It all depends on the nature of the decision and its impact on the right and interest of the party against whom decision is taken.
In some cases, specific statutes may require decisions to be ripe before they could be challenged in court. For instance, only final administrative decisions of the management board of the National Electoral Board may be appealed to the Federal High Court, and final decisions with regard to the electoral process and results may be appealed to the Federal Supreme Court.[4]
The ripeness doctrine typically comes into play when a party challenges a rule or other statement that an agency has made at a relatively early stage of the regulatory process, prior to actually seeking to enforce its policy against a given individual.[5]
In the United States, an administrative decision may be challenged only if it is ripe for review, the criterion being a “ concrete adverse effect.”[6]
Example
Suppose an agency issues a regulation prohibiting certain business practices. When and if the regulation is enforced, the defendant can challenge the validity of the regulation as a defense. But can it challenge the regulation as soon as it is promulgated? On the one hand, nothing has happened. The agency has not told it to do anything, it is subject to no sanction, we do not know whether the regulation will be enforced, we do not know how it will be interpreted if it is, and there is no concrete case in the context of which the legality of the regulation can be evaluated. For these reasons, the challenge may be seen as not yet “ripe.”[7]
In the landmark Abbott Laboratories case in US, Justice Harlan for the Court, explained that the ripeness doctrine was intended:[8]
[T]o prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties premature questions are not adjudicated
In CFN 214227 (unpublished)[9] notice was issued to respondents to return their title deed to correct errors on the certificate of title. The correction to be made by the applicant (Addis Ketema Sub-city Land Administration Office) will reduce the size of respondents’ immovable property. Respondents’ petitory action was found justifiable and injunction relief was given by the lower courts. However, the cassation bench revoked the decisions. The bench indicated that issuance of notice by applicant to make correction on errors that were not detected at the time of issuance of the title deed is a lawful exercise of power. Such exercise of power can not be challenged because it constitutes undue interference by the courts.
Despite the vagueness of the bench’s reasoning (because the basic issue was whether issuance of the notice subject to the threat of revocation of title deed was legal) there is some indirect reference to ripeness to justify its position. It stated for instance, if applicant revokes the title deed or commits acts contrary to law, he will be compelled to rectify its illegal measures and including being liable to payment of compensation. So, in short, what the cassation bench is saying is that issuance of notice for the return of certificate of title is not ripe to be challenged by petitory action in court. In other words, challenge in court will be available when a final decision on the correction is disclosed.
In the above case, exactly what corrections are to be made and its consequence on the ownership rights of respondents was not disclosed. That’s why the bench considered the notice not ripe to be challenged in court. If the measure is stated or could be inferred from the content of the notice, what is being challenged is not issuance of notice but the administrative action to be taken after expiry of notice period.
In CFN 209203 (unpublished)[10] applicant issued an order to respondents to demolish a building and vacate it. The reason for the notice as stated by applicant was absence of lawful building permit. The Cassation Bench unlike its position in CFN 214227 recognized the case was ripe and foind issuance of the notice illegal.
The bench reasoned:
It is an act of interference with property rights to issue a notice to an owner of a building to demolish the building and vacate it, without first proving the fulfillment of the preconditions and requirements set by the law.
In both common law and civil law legal systems an action for judicial review should be submitted within a definite period. Expiry of the time limit may result in the rejection of the application. Under French administrative law, any challenge to an administrative act must be brought before a French administrative court within two months after that “act” has been completed.[11] In the United States limitations periods vary with the legislation, though sixty days is common.[12] In Ethiopia, too sixty days is the average time to submit appeal to the ordinary courts.
Some examples of the various periods in some statutes is given below.
Sixty days
Proclamation No. 481/2005 Plant Breeders’ Right Proclamation
Article 30
A party who is aggrieved of a decision on the granting, refusal, revocation or restriction of a plant breeders’ right may lodge an appeal to the federal high court within sixty days from the date of receipt of the decision.
Plant Breeder’s Right Proclamation No. 1068/2017
Article 30. Court Action
Any person aggrieved by a decision of the Ministry on the granting, refusal, revocation, transfer, restriction, compulsory licensing or infringement of a plant breeder’s right may lodge an action in the regular court of law within 60 days from the date of receipt of the decision.[13]
Thirty days
Excise Tax Proclamation No. 1186/2020
Any party aggrieved by the decision of the Tax Appeal Commission may appeal to the Federal High Court on question of law within 30 days from the date of the decision.[14]
Article 29/4/ Urban Lands Lease Holding Proclamation No. 721/2011
A person dissatisfied with the decision of the Tribunal on the issue of compensation may appeal, within 30 days from receipt of the decision, to the relevant municipal appellate court or, in the absence of municipal appellate court, to the regular high court.
No time limit
Sometimes the law granting appeal right may not fix a time for appeal.
Electronic Signature Proclamation No. 1072/2018
Article 51/3/
Anybody who is not satisfied with the decisions of the Root Certificate Authority may appeal to the Federal High Court.
Proclamation No. 728/2011 Veterinary Drug and Feed Administration and Control Proclamation
Article 25
1/ Any person who is aggrieved of the denial, suspension or revocation of certificate of competence or professional license may lodge his complaint within 30 working days from the date of decision to the complaint handling body established by the appropriate organ
2/ The body that has received a complaint in accordance with sub-article (1) of this Article shall render its decision within 30 working days.
3/ When the petitioner has not get decision within the time specified under sub-article (2) of this Article or dissatisfied with the decision, he may submit the case to regular court
Question 8
If there is no time limit under the specific law how should the court having appellate jurisdiction deal with time requirement?
Exhaustion of administrative remedies
The requirement that parties seeking judicial review of agency action exhaust their administrative remedies before going to court is one of the pillars of the common law of judicial review. In general, this doctrine requires that judicial review is available only after the exhaustion of all administrative remedies or avenues.
Under French administrative law, the law provides that, in a large number of cases, the citizen is required to bring a request for administrative review before commencing litigation. But, it is primarily the right of the citizen than a strict mandatory requirement.[15] Under German law, before coming to the court the plaintiff must exhaust the administrative remedy. The Law on Administrative Courts 1960 lays down the general provisions with respect to such remedy. It provides that before filing a suit for invalidity or for a mandatory injunction against the rejection of an application to take an administrative act the plaintiff must exhaust the administrative remedy. However, the requirement may be dispensed with by law in specific cases.[16]
Exhaustion just like ripeness is concerned with the timing of a review. Ripeness signifies final administrative decision that adversely affects the rights and interests of the individual. On the other hand, the exhaustion requirement indicates the decision is ripe, but before it reaches the court for review, remedies available within the agency’s internal complaint mechanism have to be sought first.
The exhaustion doctrine provides that all administrative remedies must be pursued and exhausted (completed) before judicial review is available. The administrative process must be given a full and complete opportunity to correct its own errors before judicial intervention occurs.
Availability of remedy should be determined based on factual assessment of complaint handling mechanisms. Merely relying on legal instruments providing internal review structure and procedure may lead to a wrong conclusion.
Administrative Procedure Proclamation No. 1183/2020
Art. 52. Exhaustion of Remedies
1/ Unless otherwise provided by law, a petitioner for Judicial Review is required to exhaust all remedies available within the Agency before petitioning the court for judicial review.
2/ Notwithstanding the rule under Sub Article (1) of this Article, where there is an undue delay on the part of the agency to provide remedies, the obligation to exhaust remedies will not apply.
Courts will apply the requirement of exhaustion of remedies even in the absence of express provision of law. Exhaustion is not limited to petitions to court but merit review applications to administrative tribunals. Exhausting internal remedies within the administration presupposes the existence of complaint handling or appeal procedure laid down by law or by the agency itself. In the absence of such procedure it is not the duty of the individual to submit his grievance to a higher officer or body.
In CFN 78945 (volume 14)[17] the bench ruled that disciplinary measures against university lecturers could not be reviewed by the Civil Servants Administrative Tribunal without first exhausting remedies available within the University organizational structure. In most public universities any grievance against disciplinary measure of the university will be reviewed by the board of the university. In the above case, the respondent submitted his petition directly to the administrative court before requesting review of the decision by the board.
The following passage from Daniel E. Hall Administrative law: bureaucracy in a democracy summarizes the nature and the need for the requirement of exhaustion of administrative remedies in judicial review.[18]
The doctrine of exhaustion of administrative remedies is the administrative equivalent of the finality rule in judicial settings. That is, only in rare instances is an interlocutory appeal permitted from a trial court. It is equally disruptive and inefficient to allow premature judicial review of an administrative proceeding.
There are a number of reasons why exhaustion of remedies is required. First, exhaustion allows agencies to correct their own mistakes and thereby learn from their errors. Second, it preserves agency autonomy and independence by preventing premature judicial intervention into agency affairs. Third, it promotes judicial economy by allowing a complete record to be made. Fourth, it promotes judicial economy by allowing the agency, rather than the reviewing court, to make findings. Fifth, it encourages cooperation and communication between agencies and parties because judicial intervention is not immediately available.
Exceptions to exhaustion requirement
As indicated in article 50/2/ of the proclamation, the requirement to exhaust administrative remedies will not apply if there is undue delay. This is to mean if the reviewing organ fails to respond to the grievances of the applicant within a reasonable period, the applicant can directly go to court before remedies within the agency are exhausted.
Exhaustion will not also be a precondition if the agency refuses to consider the complaint. In CFN 215115,[19] the respondent requested the lower court for the reimbursement of foreign currency notes confiscated by the applicant. According to the facts of the case, the respondent upon entering Ethiopia declared possession of foreign currency notes. Declaration was issued by the applicant for each note. According to a directive issued by the National Bank of Ethiopia, the notes will be returned to the declarant provided he exits the country within 30 days. In this case, the respondent first traveled to Uganda without requesting the return of the notes. Then he returned to Ethiopia without making any declaration. Again for the second time, he was leaving Ethiopia for another country. It is at this time he requested the applicant the return of the notes. The applicant, however, informed him that the notes were confiscated because he failed to make a declaration upon his trip to Uganda.
One of the issues, in this case, was whether the respondent can directly petition the ordinary courts for remedy without exhausting available administrative remedies within the Authority and without first submitting the case to the Tax appeal Commission. The applicant’s objection in this regard was rejected by the lower courts including the Cassation Bench. During the hearing in the lower court, it was established that the respondent repeatedly submitted complaints to the Authority and Complaint Hearing Committee within the Authority. Unfortunately, all his applications and complaints were not accepted. The Bench reasoned that if administrative avenues are denied a petitioner is entitled to take the matter directly to the ordinary courts and seek remedy. Here the exemption from exhaustion requirement was justified based on the existence refusal by the agency to accept the respondent’s complaint.
When the time to give a decision is prescribed by law a party can submit a petition to ordinary courts upon the expiry of the time limit. For instance, the plant breeder’s right holder may seek relief in a regular court of law if the Ministry of Agriculture fails to respond to his complaint within 30 days.[20]
[1] William Bishop (2008). A Theory of Administrative Law. In P. Cane (Ed.), Administrative Law. Routledge P368
[2] Daniel L. Feldman (2016). Administrative Law: The Sources and Limits of Government Agency Power. CQ Press. P285
[3] Paul Craig, supra note 8, P590
[4] Article 17/1/ of National Electoral Board of Ethiopia Establishment Proclamation No. 1133/2019. That means decisions regarding the electoral process and results may only be challenged as far as they are final.
[5] Ronald M. Levin & Jeffrey S. Lubbers (2017). Administrative Law in a Nutshell (6th ed.). West Academic Publishing. P401
[6] William Bishop (2008). A Theory of Administrative Law. In P. Cane (Ed.), Administrative Law. Routledge P369
[7] Stephen G. Breyer, supra note 1 P879
[8] Daniel L. Feldman (2016). Administrative Law: The Sources and Limits of Government Agency Power. CQ Press. P285
[9] Addis Ketema Sub-city Land Administration Office vs. Ato Mustefa Usman (et al) (2014 E.C.)
[10] Kelela Town leguama meri Municipality vs. Ato Seid Hussien (et al) (2014 E.C.)
[11] William Bishop (2008). A Theory of Administrative Law. In P. Cane (Ed.), Administrative Law. Routledge P368
[12] Ibid P369
[13] Art. 30 of Plant Breeder’s Right Proclamation No. 1068/2017
[14] Article 24/2/ of Excise Tax Proclamation No. 1186/2020
[15] Mahendra P. Singh (1985). German Administrative Law: In Common Law Perspective. Springer P123
[16] John Bell & Francois Liche`re, Contemporary French Administrative Law (Cambridge University Press, 2022) P99
[17] Debreberhan University vs. Baye Wanaya Yeda (2005 E.C.)
[18] Daniel E. Hall (2015). Administrative law: bureaucracy in a democracy . Pearson Education P267
[19] Ethiopian Revenue & Customs Authority vs. Henock Zemariam (2014 E.C.) unpublished
[20] Art. 27/6/ of Plant Breeder’s Right Proclamation No. 1068/2017
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