Insights to Administrative Law
Administrative Law
Introduction
Administrative law or the law of public administration is a subject with vast ramifications. Different scholars have defined it as it appears to them and this has greatly restricted the emergence of a universally acceptable definition. A broad view of the subject matter depicts it as the law relating to the organisation, composition, functions and procedures of public authorities and the legal retrains to which they are subject. It includes the whole of the law about local authorities and the services they provide, as well as matters of general principles.
What is Law
Much energy has been dissipated in an attempt to answer the question: What is law? Generally speaking, the concept law may mean different things to different people. The Chemist, Geographer, Economist or Physicist will definitely have different ideas of what law is.
The word “law” can be used in either a general or technical sense. For instance, we can talk of the law of a particular club, law of God, law of demand and supply etc. These are instances of law in a general sense. Our main concern in this course is with the technical meaning of law.
Law can be defined as a body of rules designed or formulated to guide human conduct or action which are enforced among the members of a given state or society.
From the above, the following can be deduced in line with the position of Sanni (Ed) in The Nigerian Legal Method (1999:2-4):
Law is a body rules
When a layman thinks of the law, he is probably of the opinion that all the laws of a state are contained in one single document, perhaps “the constitution”. This is incorrect. For instance, the offence of murder and the penalty is however expressly written in the constitution. Rather, this is enacted in section 316 of Criminal Code. As a matter of fact, law consists of multifarious rules some of which are written in the constitution and several other statutes, prior decided cases and other sources of law including customs, which are unwritten in nature.
It is Man-made
Laws are rules that society adopts to govern itself. Hence, law within the context of our definition cannot be regarded as God-given in the sense of the Ten Commandments contained in the Holy Bible of Koranic rules and injunctions. This statement however does not deny or minimize the importance of religious beliefs and values in motivating societies to adopt particular rules of law. While many factors including religion, ethics, customs etc usually have some bearing on the selection of the laws by which a society is governed, it must be realized that such values are not laws unless they have been enacted into a statute or selected for enforcement. Since law is man-made, man has the responsibility to determine to a large extent the content of the law of his society. If the law is bad or ineffective, man must take responsibility for it and cannot blame God or nature.
It is normative in character
Law is a norm, which tells us what to do and what to refrain from doing in order to achieve a particular objective. For instance, the rules of criminal law, which forbids stealing, and the killing of another under certain circumstances are to guarantee security of lives and properties. People who behave contrary to the norms of the society sometimes pay dearly for it either by compensating the injured party or incurring criminal sanction.
It has an Element of Coercion
Breach of law is usually enforced by means of sanction or coercion through organised institutions such as the Police Force, Law Courts, Tribunals, and Prisons etc. This is the main distinguishing factor between law and moral or ethical rules, which are ‘enforced’ (if enforced at all) through social opprobrium or loss of integrity in the eye of the members of the public or through informal or unorganized institutions.
Territorial Limitation
Law is usually made to guide the conduct of the people of a particular society or country and is binding on the people and properties within that territory. While the law of two or more communities may be similar, there are usually some marked differences depending on their respective needs, objectives, cultural, religious and other values. This is so even between different communities in the same country.
Dynamic in Nature
Law is not static but dynamic. Since law is meant to regulate the behaviour of man in the society, the content of the law of each society usually changes as the social, political and economic world in which he lives changes. For instance, the invention of motor vehicles, airplanes, computers, hi-tech electronics etc, created developments, relationships, demands and conflicts which necessitated the making of new laws and drastic alteration of old ones.
Characteristics of law
Law as a body of rules and regulations has the following characteristics
Laws are made by political and legal authorities. This means that for anything to be called a law or become law it must arise from a person or body of person vested with authority either legal or political e.g. the legislatures, government functionaries, government agencies e.t.c.
Laws are backed up by sanctions and reward. The law specifies sanctions for its violations and reward for compliance.
They are enforceable for anything to be called a law. It must be enforceable. That is the applicability of the law must be guaranteed.
The law must apply to every member of the community. This implies that the law does not discriminate against members of the community.
Finally, the law specifies punishment in case of any breach. This is one unique characteristics of the law. Because it states in advance the rules that governs decision making, the limit of sanction, in case of breach of law, who decide over such matter and the place of such decision in that regard, an individual who commits an illegal act knows before hand where, how and by whom and the condition he may be tried and the limit of his punishment if found quilt.
Administrative Law
Several scholars have tended to define administrative law in line with their orientation and philosophical disposition. For instance, Ivor Jennings (1981) explained it as the law, which relates to administration. It determines the organisation, powers and duties of administrative authorities’ while in Wade and Bradley’s (1985) view administrative law is a branch of public law which is concerned with the composition, power, duties, rights and liabilities of the various organs of government which are engaged in administration.
In the view of De Smith (1983), it is that branch of public law, which deals with the actual operation of government – the administrative process. To him, when the constitutional process has resulted in a duly elected government with powers to determine its policies and enact the necessary primary legislation and has done so the administrative process begins. Administrative law regulates the process of putting into effect or practice constitutionally decided policies.
Administrative law is concerned with the forms and constitutional position of public authorities, their powers and duties the procedures adopted in exercising such powers and their legal relationship with one another, with the people (citizens) and employees. It is that branch of law that is concerned with the control of governmental powers which embodies general principles that can be applied to the exercise of the powers and duties of authorities intervening to ensure that the myriad of rules and discretionary powers available to the executive conform to basic standard of legality.
Functions of Administrative law
A major function of administrative law is that it enables the task of government to be performed. This is made possible with the creation of administrative agencies by law, equipped with powers to carry out public policies as approved by parliament. Government makes policies and for these policies to be put into practical effect agencies are therefore created for its full implementation.
The second function of administrative law is that it governs the relations between an administrative agency and those individuals or private bodies over whose affairs the agency is entrusted with power. It is a means of control upon administrative power because it grants the individual power to challenge the action of an agency which is contrary to law or beyond the powers of the agency or which has adversely affected the individual.
A third function of administrative law is that it governs the relations between various administrative agencies. Finally, administrative law exist to ensure that public authorities take their decision in line or accordance with the law and it equally serve as a means of promoting accountability of public authorities.
Sources of Administrative Law
The meaning of the sources of administrative law in this sense implies the origin of and places where administrative law could be derived. In this regard therefore we would examine the following sources.
Case law: These are pronouncement and decisions of judges on cases brought before them. “Under the doctrine of judicial precedent the judge is always concerned to lay down legal principles consistent with those established in previous cases. This proves to be as important source of administrative law, arising from the increase in government businesses, which has led to an increase in the number of cases coming to the court.
Legislation and delegated legislation: As a source of law, they are the documentary laws made by parliament in respect to administrative authorities. They are equally laws made by bodies that have been empowered by parliament to act on its behalf. This source of administrative law has grown in importance because of the increases in the activities of government, which has gone beyond its traditional role.
Books of authority: Books of learned writers on the subject equally serve as a source of administrative law. Though administrative law has only been recently accepted as a separate branch of the law, and works on the area is still relatively few, there is a fascinating literature available relating to this branch of law.
DELEGATED LEGISLATION
Delegated legislation is any law made by any other body other than the legislature. It is a situation whereby the legislature delegates its powers of law making to certain individuals, groups and institutions to make laws on its behalf. It is the authority granted to other bodies outside the parliament to make law. Delegated legislation has been described by Lord Hewart as “an abdication by parliament of its primary constitutional legislative role”. All the orders, rules and regulations made by ministers, departments and other bodies owe their legal force to Acts of parliament. The recent trend toward delegation confirms that there has been a significant shift of power to the executive organs of the state and this has been justified by the greatly enlarged role of governmental activities in recent times and the constrains on parliamentary time.
As a result, parliament is obliged to delegate very extensive law-making power over matters of details and to content itself with providing a framework of more or less permanent statutes. In fact delegated legislation is essential because parliament is incapable of making all laws and often when they do pass statutes, there are obvious limits to the amount of detail that can be contained therein. The complexity and detail involved in the making of administrative rules requires that primary legislation is supported by delegated powers which also allows for greater flexibility.
It is common knowledge and tradition for statutes to be very broad statements of policy, it is therefore the responsibility of the executive to give meaning to the policy and implement same through delegated legislation.
Delegated legislation permits power to be conferred by parliament on other bodies such as local government authorities, ministerial departments, statutory bodies, corporations, professional bodies regulatory agencies, commissions, special tribunals etc. this is achieved through such means as ministerial order, by – laws, guidelines, departmental circulars and codes of conduct. It should be noted that while ministerial orders and by-laws are legally binding departmental circulars, guidelines and codes of conduct are not, which means that they do not have any direct legal effect.
Law making according to the theory of separation of powers is the constitutional role or function of the legislature but in modern government, this role have been abdicated by parliament. When a parliament or any legally constituted legislative body delegates some of its legislative powers to a minister/ministry, department of government, the resulting regulations are described as delegated legislation.
The recipient of delegated authority can make laws within the defined lines of their instrument that is an Acts of parliament which lay down in general terms the subjects on which he can legislate or issue regulations. The use of delegated legislation is indeed a development out of necessity. The modern parliaments are faced with a growing number of responsibilities ranging from the political, economic and social issues requiring legislation, but the parliament cannot enact statutes in details on this entire front, it therefore became necessary for parliament to delegate some of its legislative powers to the executive authorities and other bodies.
JUSTIFICATION OF DELEGATED LEGISLATION
Delegated legislation is an inevitable feature of modern government. It has assumed great importance because of the complexity of modern society and the number of delegated powers has increased astronomically. Arising from this therefore one can safely say that the ordinary man has come to be under the tyranny of delegated legislation.
This is because the ordinary man is faced with a web of laws, rules and regulations made not by the legislature but be the delegates of powers.
The legislature only make a broad outline or framework of an Act but the details and specifics which regulate and affect the lives of the ordinary citizen are spelt out by the delegates or powers (1) This state of affairs is justified on the ground that the legislature in modern society has, by far too many Acts to pass on too many issues that they cannot pay adequate attention to all of them. It therefore became necessary for it to delegate some of these to other bodies. (2) Furthermore the legislature is constrained by time and sheer volume of work to consider each of them in detail. If parliament attempted to enact all legislation itself, the legislative machine would break down unless there is a radical alteration in the procedure for the consideration of Bills. The granting of legislative power to a department, which is administering a public service, has removed the need for amending Bills.
Another justification of delegation of powers is the fact that the subject of the Acts is usually too technical in nature for the members of the legislature. The member of the legislature are not usually elected because of any expert knowledge, qualification or competence they cannot therefore be expected to handle most effectively modern issues that are complex and technical. In this regard they usually play it safe by making a broad and general Act while delegating the enabling powers to fill in the details to more competent bodies outside the legislature.
Another justification for delegated legislation is the need for flexibility and elasticity. The society is in a continuous state of change, and there is the need to provide administrative regulation to meet the need of this rapidly changing society. For instance when a major new social service is established, it is not immediately possible to foresee every administrative difficulty that may arise and when they does arises it is not possible to frequently recourse to parliament for amending the Act to accommodate the changes after the scheme has began to operate. In these circumstances delegated legislation fills these needs.
A further justification is in time of emergency where government may need to take action quickly and in excess of its normal powers to meet the exigencies of time. Under this circumstance, delegated legislation is most ideal and expedient both in speed and latitude to cope with the emergency. It should be pointed out that many written constitution include provision in times of emergency for the suspension of formal guarantees of individual liberty.
INSTRUMENTS OF DELEGATED LEGISLATION
By-laws: These are laws made by local authorities and other administrative agencies in the exercise of the powers conferred on them by statutes. They are local laws needed for regulation in particular situation existing or arising in any locality. They also include rules made by or on behalf of any authority. The local government Act allows local authorities to make by-law covering a wide variety of matters such as litter in public places, bicycles, carts, radio licenses, death and birth certificates etc.
Administrative rules: These include code of practice, circulars and guidelines, which plays an important role in government businesses, and the administration of the society. There has been an increased trend in recent years towards adopting these various forms of what has been termed “quasi – legislation” across a broad spectrum of policy making. There are obvious advantages in adopting such rules for example they are drawn up in less legal language which makes it easily comprehensible for the ordinary man, they are equally likely to be more flexible and may well indicate how any discretion in the application of a rule will be exercised. The code of practice may be highly desirable in performing an informational function.
The question for us to consider here is whether such provisions are legally enforceable? For example, the federal Highway Code to which every citizen is familiar with sets out some measures that are contained in the Road traffic acts. In addition, it provides direction for the guidance of road users, suggesting how they should conduct themselves in a wide variety situation. It should be noted that failure to observe the provision of the Highway Code will not in itself render a person liable to civil or criminal proceedings, but where such failure coincides with some other breach in the legislation then the road user may be liable to prosecution.
In the same vein, the codes of practice that accompany the police and evidence Acts are not strictly enforceable. If the police do not follow the code when arresting a suspect, it can lead to the court deeming the arrest to be unlawful, but members of the public cannot take proceeding against the police solely on the ground of non-compliance with the code(s).
Statutory instrument: These are rules and orders made by minister and other heads of government departments that are governed by provisions which are defined in the statutory instrument Act which confers power to make laws, rules regulations, approve orders on subordinate to legislations on the executive or his representative. It is the commonest type of delegated legislation especially in Nigeria and is made by ministers under powers conferred on them by Act of parliament.
PUBLIC SERVANTS AND THE LAW
Public servants work under a network of laws, rules, regulation codes and norms. Being a public servant, he is surrounded by various systems of laws, which determine and regulate his official conduct. We shall look at some of these laws.
THE LEGAL AND JUDICIAL SYSTEMS
Every modern state has its legal system, which is made up of both the substantive and procedural laws and the judicial organisations. For example, In Nigeria we have the penal code, the criminal code, the criminal procedure code, the Sharia laws, the customary laws and other enactments by the parliament. Also in Nigeria, we have various grades of courts – Supreme Court, Federal Court of Appeal, the Federal High Court, the state court magistrate courts and courts and customary court.
Public servants are guided by these legal and judicial systems. They are not to violate the provision of these laws in their official assignment. In case they do so, they would be taken to the ordinary law court like every other citizen.
BUREAUCRATIC NORMS
Apart from being regulated by the legal and judicial system, public servants are guided by the norms of bureaucracy. Since public servants operate in a bureaucratic system. They must adhere to the following norms:
Subject to authority only in official capacities.
Organised in hierarchy of offices
Each office has defined competence
Office filled by free selection
Officials are appointed on basis of technical competence.
Paid in money, fixed, graded salary, pension
Office is primary occupation.
There is career; advancement by seniority and / or achievement
Official is separated from means of administration
Official subject to discipline in conduct of office.
ORGANIZATIONAL NORMS
Public servants are also subject to general organizational behaviour. Some of the universal principles of organizations are as follows:
Specialization: By function and division of labour. Tasks are sub-divided and employees performing those tasks are allocated to functional departments.
Scalar principle: The chain of command is a line of authority moving downwards through the organizational structure.
Unity of commands: The idea of employees having to report to one boss.
Span of Control: This is a method of organizing effective supervision. It is usually considered to be five or six subordinates per superior.
Vertical Communication: The Chain of command is the official channel for communication.
Minimum authority level: Reducing the number of levels of authority thus, making communication and control easier and hence improving efficiency.
Line and Staff division: Line departments are to have direct responsibility for decision relating to the production of a good service, and staff departments, e.g. personnel were to provide specialist advice and services to assist the line departments.
ADMINISTRATIVE NORMS
Public administration has its norms, which every public servant is expected to obey. The minister is the political head of the ministry. He is therefore answerable to the people through parliament for what goes on in his ministry.
Neutrality
Public servants are expected to be politically neutral in the execution of their duties. The work of public service must be done irrespective of party in power. If the people are to be sure that the government they choose will carry out their wishes, then the public service to all parties. Regulations are made to protect public servants from the least suspicion of party bias; they are forbidden to stand at any election for public office or to take any open part in political argument. Political neutrality is an essential feature of public service norm, for example, if the public service of a state gives a particular political party open support, the same public service will not be able to perform well if another political party comes to power in that state.
Permanence
Ideally, once a public servant is employed he is expected to continue in service until he reaches the retiring age or is compelled to resign on the grounds of misconduct or ill-health.
Recent events in Nigeria have seriously threatened these characteristics of the public service. Since 1975 there has been a series of retrenchments in the public servants is now only in theory in Nigeria.
Anonymity
Everything, which is done by a ministry, is done in the minister’s name. If the policies are successful the minister is congratulated; if the policies are disastrous, the minister himself takes the blame. The minister may never under any circumstance defend himself by transferring the blame to the civil servants, especially as his civil servants cannot in turn defend themselves either publicly on in parliament.
ADMINISTRATIVE RULES AND REGULATION
Public servants are subject to many administrative rules and regulations. In Nigeria, the civil service Rules is the general guide to those in the civil service. Every public service has got rules, which regulate the administrative behaviour of its workers.
There are also specific regulations on various aspects of government functions; financial instruction guides administrators on how to spend government
And since the public service is not a stagnant institution changes are introduce from time to time through circulars, minutes and instructions.
ADMINISTRATIVE DISCRETION
Administrative discretion is defined as the ability of individual administrators in a bureaucracy to make significance choices affecting management and operation of programmes for which they are responsible.
The process of implementing laws involves a lot of discretion. The administrator is to decide which laws are to be implemented; how such laws are to be implemented. But in doing this, he must operate within the law. Consequently, laws are expected to limit the discretion of administrators.
In making arrest, the police are authorised by law to use a reasonable force. But a policeman who kills a person in this process has exceeded his limit of discretion and may be arrested and tried in the court.
In Nigeria, we have Criminal procedure Code and procedure Act that specified detailed procedures to be followed by the law officers in judicial proceedings.
The concept of administrative discretion is related to the due process clause. “Administrative due process” is that procedure which will normally be accepted by the court as reasonable under the circumstances, whether or not the judge thinks the substantive decision correct. The test of the Due Process Clause is usually based on “reasonableness” of fundamental fairness.
Other Aspects of Administrative Discretion
Before an administrator or his agency can take any action that would directly affect one or more persons or institutions, they generally give such affected parties adequate notice. The administrative discretion is necessary. In some instances the notice could be thirty days on the other hand indiscretion would make some administrators act without notice.
Disclosure of Reasons
Administrative agencies are usually required to state reasons for taking the action they intend to take. This can be done verbally or in writing. It would be an indiscretion on the part of the administrator to take action without stating the reasons for doing so.
Right of Hearing
Administrators are expected to allow aggrieved parties to be heard. No body should be dismissed from his job without being heard. No person should be deprived of his property without being heard. Every accused person must be given the opportunity to be heard before conviction. Such persons should be given legal representation if it is a court case.
If after a hearing, the protesting party is still not satisfied, he may appeal to a higher echelon within the agency. The resort to court should only come as a last action. Even if the issue gets to the court, appeals could also be entertained.
SOME CONSTITUTIONAL PRINCIPLES OF ADMINISTRATIVE LAW
THE PRINCIPLES OF SEPARATION OF POWERS
A French lawyer called Baron Montesquieu was the person who popularised the principle of separation of powers. As observed by Colin F. Padfield:
The germ of the idea was not new Aristotle had referred to it, John Locke (1632-1704). The English liberal philosopher, also postulated the doctrine in his second Treatise on civil Government; and Blackstone in his commentaries on the laws of England (1765) referred to the importance of mutual checks on governmental judiciary in English constitutional law.
Montesquieu visited England in company of Lord Chesterfield in 1729. He used the opportunity to study the English system of government, which he admired so much. On his return to France, he publishes his book titled De Esprit des Lois (the spirit of the laws) in 1748. It is in the Spirit of the laws that the principle of separation of powers was systematically developed. The principle “advocates that to avoid oppressive government the three types of governmental function (i.e. the executive, the judicial and legislative) should be kept separate. The ideal constitution would be one under which only the legislature legislates (i.e. make rules), only judges adjudicate (i.e. decide disputes on the basis of rule and only the executive formulates and through administrators, executes policy. Furthermore each of these arms of government should be made up of entirely separate personnel – no individual should be involved in more than one branch.
THE SUPREMACY OF PARLIAMENT, CONSTITUTIONS AND DECREE/EDICT
The issue of the supremacy of a particular political institution is determined by the nature of government. For instance the concept of the supremacy of parliament is, by and large, a British innovation. As Dicey observed:
The principle of parliamentary supremacy means neither more nor less than this, namely that parliament … has … the right to make or unmake any law whatever; and further that no person or body is recognized by the law…. as having a right to override or set aside the legislation of parliament.
Initially when the United Kingdom was established King had absolute powers. The Anglo-Saxon Kings were advised by the Witan and the Norman kings by the Great Council (the Magnum Councilium). This body was made up of “feudal barons, nobles, vassals and bishops. The great council was consulted by the King as from time to time on issues of national importance. The Norman Kings also established the Curia Regis (the court of the King). The House of Lords of Lords is the successor of the old Curia Regis. The Norman kings summoned not only barons on matter of great importance, but after 1262 another group – the commons – which included the knights from the shires and burgesses from the cities and boroughs. The two groups met separately from each other in private assemblies (to advice the King).
These two institutions – the Curia Regis and the common progressively developed into the modern British Parliament.
Initially the monarch enjoyed absolute powers and the two institutions mentioned above were acting in advisory capacity. But eventually the people through the Parliament started to struggle for their rights against royal absolutism. Their first victory was in the Magna Carta of 1215 in which the King promised to refrain from imposing any feudal tax save by the consent of the Council of the realm. The charter also contained the provision: “To no man will we deny or delay right or justice”.
The Rule of Law
If a government is not regulated, it can grow to be a monster. This must have informed the fear of Thomas Paine that “government even in its best state is but a necessary evil; in its worst state an intolerable one”. (Paine, 1953; 65). It is this attempt to make modern governments responsible and be less arbitrary that informs the concept of the rule of law.
It was A.V. Dicey who postulated the three ingredients of the rule of law. The first doctrine is that “no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal matter before the ordinary courts of the land” (Dicey, 1979, 193). The implication of this is to limit the arbitrary or even discretionary powers of the executive. The second doctrine is that “every man, whatever is his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals”. This implies equality of all citizens before the law. In other words, there should not be any special law for the rich and a special law for the poor. In interpretation, the law must be made to serve the end of justice for all. The third doctrine emphasizes the general rights to be enshrined in a constitution basically the right to personal liberty, right of association and of assembly.
The relationship of a constitution to the rule of law is that interests of the citizenry must be paramount and their rights guaranteed against the arbitrariness, rashness and abrasiveness of an incumbent leadership. In spite of the limitations to the rule of law, the three doctrines postulated by Dicey have remained central to modern constitutions. For example, a democratic polity guarantees the rule of law whereas autocratic and dictatorial regimes limit the rule of law.
Some breaches of the rule of law
In the practice of administrative law in Nigeria, certain breaches have been noticed and below are a highlight on some of such issues:
The existence of special administrative tribunals: The establishment of special administrative tribunals to handle special and specific areas of governmental function, some of which are administrative in nature while others are quasi – judicial. For instance, the Armed Robbery and Firearm tribunal, Rent and Revenue tribunals, are part of the ways the rule of law has been breached. Although the argument has been made that the establishment of special administrative tribunals is as a result of the growth in the complexity of government activities and functions which has made the ordinary processes of government to be inadequate and ineffective in handling them, it is important to state that these tribunals are not ordinary law courts and as such violate the principle of the rule of law.
Delegated legislation: The principle of delegated legislation is a violation of the rule of law this is because laws are made by the legislature after due consideration to the many safeguards of judicial procedure, and they are generally passed in the public interest; the processes of law making are complicated and complex a process which protect the public from involves laws. The laws made by other bodies other than parliament can not be said to posses these qualities and follow the rigorous process of lawmaking, and one cannot say that individual interest is adequately protected.
Exercise of discretionary powers: The exercise of discretion by public officers is considered as a breach of the rule of law and threatens the safety of the citizen. According to Davis “a public officer has discretion whenever the effective limits on his power leave him free to make a choice among possible courses of action or inaction”. And that “an officer who decides what to do or not to do often (a) find facts, (b) applies law (c) decides what is desirable in the circumstances after the facts and the law is known. The third of these three functions is customarily called '‘the exercise of discretion’ Judges for example exercises some degree of discretion in the performances of their duties, the executive particularly the chief executive in the exercise of prerogative of mercy exercise his own discretion.
Military Rule: Military rule which have become a major feature of most African State is a breach of the rule of law this is because military regimes finds its fulfillment in decrees.
COLLECTECTIVE RESPONSIBILITY/MINISTERIAL RESPONSIBILITY
The ministry is an administrative agency responsible for implementing government policies. The ministry as we know is under the minister. All the ministers constitute the cabinet of the government; since government policies are made collectively by the cabinet all minister are collectively responsible for their success and failure. For example the blame on the failure of the Green Revolution Programme under the Shagari regime cannot be on the Minister for Agriculture alone. The entire Shagari Government was responsible for it. Also the shortcoming of the Structural Adjustment Programme is not the responsibility of one individual minister rather on the entire Babangida Cabinet. Moodier observed:
In accordance with conventional rules about collective responsibility, all members of the administration are expected publicity to support its policies and its actions.
The Political Penalty of unpopular decision is the collective resignation of the entire cabinet of ministers.
On the other hand, the concept of individual ministerial responsibility is more specific. “Each minister is responsible individual for his own decision and for all the actions of the government department under his control. As correctly observed by Moodier, “legally and constitutionally a government department or ministry is its Ministers responsibility, and its civil service staff there simply to do the ministers bidding and carry out his policy.
Consequently the Minister is the spokesman of the ministry. He is expected to explain the works of his ministry to his colleagues in the cabinet as well as the general public when the need arises. Similarly he is to be blamed for his personal indiscretion and blunder. And id the case affects his integrity sense of judgement he may have to resign.
For example, in 1963, the British Secretary of State for War, Mr. Profumo resigned after confessing that he had misled Parliament about the nature of his relationship with a girl who had simultaneously been associated with a Russian diplomat. In 1974, Mr. J.S. Tarka resigned from the Gowon Administration after being accused of wrongdoings.
The idea of ministerial responsible does not mean that ministers are responsible for personal behaviour of civil servants working in their ministry. Every civil servant is expected to behave in accordance with established rules. “A minister does not feel bound to defend the actions of one of his officials, should that action have been taken in defiance of departmental policy or instructions of have resulted from the purely personal incompetence of a junior official. There are clearly established administrative procedures to be followed if civil servants misbehave.
GENERAL CONTROL OVER THE ADMINISTRATION
The authors of Federalist No. 51 have observed:
If men were angels no government would be necessary. If angels were to government, neither external nor internal controls on government would be necessary. In framing a government, which is to be administered by men over men the great difficulties, is this; you must first enable the government to control the governed; and in the next place allows it to control itself!
For the purpose of this section, we shall divide the general control over administration into two types. These are internal and external controls.
INTERNAL CONTROL
Staff services provide internal control over the administration. For example the personnel department determines how line department deal with their personnel problems.
Secondly, the budget department exercises financial control over the administration as it decides how money is to be allocated to the various departments.
A third area in which internal control is exercised over the administration is through tender board. Line departments must apply to the tenders’ boards for their major purchases and contracts. The tenders’ board usually follows a strict in meeting the demands of the line officers. Major government contracts and supplies are usually advertised and the general publics are encouraged to bid. Usually the tenders’ board accepts the lowest qualified bidder.
Auditing as another major area in which the staff department exercised control over the administration.
Perhaps the most important financial control unit is the auditing branch. It is the one, which is expressly charged with control and with little else. For obvious reasons, auditing is best perform by a unit that is as separate as possible from the activities that it is auditing.
In Nigeria, the important roles of auditors are expressed in the reform of the Public Service by the Babangida regime. The Task Force on the reform recommends that in order to prevent irregular payment before they are made, it is necessary to establish an Audit Alarm Committee comprising Auditor-General as Chairman, Accountant-General of the Federation and one representatives of the President, to examine all cases of alarm raised by the internal Audit. It shall be standard procedure for pre-payment audit queries raised by the Internal Audit but over-ruled by the Chief Executive to be referred to the Audit Alarm Committee. It will be deemed an offence for an officer to process any queried payment under the Audit Alarm System any further, without an audit certificate issued by the Auditor-General once or pre-payment audit alarm has been raised.
Most staff departments have inspectorate sections, which oversee the activities of line officers. In Nigeria, Ministries like education, judiciary and agriculture have inspectorate section. Our recent experience with the inspectorate section is the case of the Presidential Monitoring team on the Directorate of Food Road and Rural Infrastructure.
EXTERNAL CONTROL
There are many forms of external controls over public servants, these include controls exercise by the courts and other institution of government.
Parliament Control
The entire budget if the public service must be approved by the parliament before expenditure. Public servants are expected to defend their budget proposals in parliamentary committees, which can reduce or even increase the budget. This is a major control on public servants.
Parliament also exercise control over the government through confirmation of appointments. The Senate must consent to major appointments by the Executive branch before such appointments are regularised.
The third area of legislative control is in the power to investigate and expose. The cases of Governor Balarabe Musa in Kaduna State and the missing 2.8 billion Naira examples in Nigeria.
Public Opinion
In a democratic country where the people are responsive to the views of the general public, public opinion could be a major check on activities of public servants. This objective can only be realised if the media of the information is free.
Control by the Judiciary
“Judicial control over the administration is based on the simple doctrine of jurisdiction. The concept of judicial control is therefore the same thing like judicial review.
Griffith and Street asserted that:
Jurisdiction is the marking off of the area of power; something ascertainable at the outset of a process, the conditions on which the right of a body depends. Perhaps it should also be pointed out that the rule of law which forms the cornerstone of our legal system, demands proper limits on the exercise of power of the executive or any other authority and such limit must be consistent with certain principles of law such as the rule of natural justice. The purpose is simple. It is to impose a reasonable standard on administration.
We shall now examine specific areas of judicial control over the administration.
Fault in the Manner of Performance
An administrative act would be declared null and void due to the fault in the manner of performance. This would be due to “negligence, failure to observe proper procedure, rule against sub-delegation, abduction of discretion and abuse of discretion powers.
Duty to Act with due Care
A court could also declare the action of public servants null and void if due care was not exercised during the execution of the act. By due care we means that the act must be performed within the provisions of the law.
Improper Motive
Improper motive could also be used as a ground for judicial review. In the case of Ekemode V. Dlansa, the defendant who was a Road overseer of the Epe District Council caused the plaintiff’s canoe to be removed from the waterway at Epe. In carrying out instruction of the Epe District Council, the defendant broke the canoe. The Council’s instruction did not include the destruction of the Canoe. It was held that the deliberate destruction of the canoe after removal could not be regarded as either necessary or incidental to the authority imposed upon the defendant by this employer for the purpose of exercising its authority to clear the shore, water-way and land route. The defendant was therefore held liable. It is submitted that the subsequent action of destruction is malicious and was done for improper motive.
CONTROL OF ADMINISTRATORS THROUGH THE PRINCIPLE OF NATURAL JUSTICE
Definition of Natural Justice
Natural justice is often described as: “the right in man to have a fair and just treatment at the hands of the rulers or their agents.” It therefore serves as a limit to the actions of the state.
Judges have given different interpretation to the meaning of natural law. In this century judges have used the phrase in a way, which implies the existence of moral principles of self-evident and unarguable truth. Jackes argued that when the concept of natural justice is used this way it means natural law. It is in this sense that Lord Escher defined natural justice as “the natural sense of what is right and wrong.
Natural justice could also be used to judge the standards and procedures of laws. Thus, it is against the principles of natural to make retrospective laws. In Phillips V. Eyre (1870) the argument was advance that a retrospective colonial law was contrary to natural justice.
Natural justice, may vary in its requirements if relation changes in society. The developments in the concept of justice in every society determines the interpretation of natural justice. In Green V. Blake (1984) Lord Mangham has this to say.
The phrase (natural justice) is, of course, used only in a popular sense and must not be among men. Amongst most savages there is no such thing as justice in the modern sense. The phrase the principles of natural justice can only mean, in this connection the principles of fair play…
This interpretation made English courts to resort to the concept of fair play in action, common fairness, fairness of procedure and the fundamental principle of fair trial.
In Nigeria lynching is a common thing. This is because most people thought those caught re-handed committing crimes should be given summary judgement. Hence such people are often lynched to death. Furthermore people are usually frustrated with delays in investigation. They are also suspicious of the fairness of the police and court in providing true justice.
The Two Principles of Natural Justice
The first principle of natural justice is the right to be heard. Anyone who is affected or likely to be affected by a decision must be given an opportunity of being heard. It is therefore wrong for any person to be punished without being given the right to be heard.
The second principle is that no body should be a judge in his own case. Judges should not decide cases in which they have some interests.
THE RIGHT TO A FAIR HEARING (AUDI ALTERAM PARTEM)
When God found out that Adam had disobeyed Him, He asked him the reason for his act before he banished him from the Garden of Eden. This case is usually considered as the justification to the right to be heard. As correctly observed by Jackes, “Even God himself did not pass sentence upon Adam before he was called upon to make his defence.
Successive generations of mankind have recognised and adopted the principle of the right of fair hearing. “in the ancient world, the requirement of hearing both sides before reaching a conclusion was enshrined in a proverb often quoted in Greek literature and formed part of the Athenian judicial oath.
In England, the Magna Carta of 1215 specified that no man should be condemned except through the due process of the law. This Principle was also recognised by the Petition of Rights in 1628.
In the United State of America the principle of fair hearing was established in the Fifth and Fourteenth Amendment to the constitution.
During the mercantilist period the right of fair hearing was narrowly defined. For example if A was owed by B, he A could enforce payment of C if ‘C’ was indebted to B.
Jackes observed that the interpretation of judges on the principle of right of fair hearing varied from generation to generation.
While the right to a hearing and to an unbiased judge have, from the earliest days, been recognised by the common law, the willingness of the courts to interfere with the decisions on the ground of breach of these principles has varied from generation to generation. Throughout the nineteenth century the courts freely imputed an obligation to serve the rules of natural justice.
In R.V. Justices of West Riding of Yorkshire ex. P. Thornton (1837) Lord Denman said “No rule is more invariable than that a person shall not be prejudiced in any manner without being heard.” He went further to say that: it is implied by natural justice in the construction of all laws that no one ought to suffer any prejudice without first being giving an opportunity to be heard.
Cases which established the right of office holders to be heard before dismissal include Doe Thanet V. Garthan (1823): Willis V. Childe (1851); R. V. Darlington Free Grammar School: Bonaker V. Evans (1951).
In Nigeria, the case often used as an example of this principle is that of the Director of Audit (Western Region) V. Opula and others in Nigeria law Report 659,1961.
CONTROL OF ADMINISTRATOR THROUGH THE INSTITUTION OF OMBUDSMAN
The Office of ombudsman is called Public Complaint Commission in Nigeria. The History of the Public Complaints Commission in Nigeria can be traced to the Udoji Commission, which was set up by the Gowon Government in 1972. The Gowon Government accepted in Principle the Udoji recommendation on the establishment of the ombudsman institution in Nigeria. To this end the government set up the Nigeria ombudsman committee under Mr. J. D. Ogundere. This committee recommended the establishment of the institution in Nigeria. The Nigeria Public Complaint Commission was established by Decree No. 31 of 16 October, 1975 as amended by the Public Complaint Commission (Amendment) Decree No. 21 May, 1979.
GENERAL REMEDIES IN ADMINISTRATIVE LAW
It is inconceivable to think of legal rights without remedies. “If a person has a legal right and that right is violated then such a persons should be entitled to some remedy.” A remedy is therefore a compensation for the violation of legal right. A good legal system will produce efficient remedies and will regard such remedies as of utmost importance to the administration of justice. Remedies reverse legal decisions and make appropriate decisions to correct legal injuries. There are three types of remedies. These are:-
Constitutional remedies which are related to the violation of the provision of the constitution.
ii. Public remedies i.e. mandamus, certiorari and prohibition;
iii. Private law remedies i.e. damages injunction and declaration.
CONSTITUTIONAL REMEDIES
Constitutional remedies were invoked in the case of Shugaba Abdulrahammna Darma V. Minister of Internal Affairs and Bello other V. A-G Oyo State.
In the first case, Shugaba A Darma was deported from Nigeria without being tried in a court. The Borno High Court reversed the action on the ground that it contravened his fundamental rights.
In the Second case, the plaintiff who was accused of armed robbery and sentenced accordingly but filed a valid appeal to the supreme court was executed before the appeal was head. On December 5, 1986 the Supreme Court handed down a unanimous decision that the fundamental human right of late Bello to live until the appeal has been determined was violated. The government of Oyo State was found liable.
PUBLIC LAW REMEDIES
Habeas Corpus
The order of Habeas Corpus is issued by court when there is a wrongful deprivation of liberty. It is the procedure for challenging in court the legality of the detention of a person. The law is against wrongful detention. Any person arrested and detained by the police must be brought to trial within 24 hours. Indefinite detention is therefore not allowed.
On Friday April 6, 1984 Justice Ajao Oshodi of Lagos High Court Ikeja division ordered the release of seven detainees held under Decree No. 8, 1984 because the Detention order was not properly made.
In another case Mrs. Solarin cited a writ of Habeas Corpus seeking the release of her husband who was detained in 1984 under Decree No 2 Justice Candido Johnson held that the detention of Tai Solarin was wrong on procedural ground and ordered that he should be released.
Prohibitions
“A writ of prohibitions tries to prevent the performance or continuance of administrative action which must be judicial or quasi-judicial in nature. Whereas prohibition would lie where an administrative tribunal has not yet reached a decision: certiorari is the proper remedy for actions already completed”. As observed by Wade:
Prohibition developed alongside as part of the system of control imposed by the court of King’s Bench. It was a similar remedy but was prospective rather than retrospective. Primarily it lay to prohibit an inferior tribunal from doing something in excess of its jurisdiction.
Mandamus
Writ of mandamus is a command by a court to public servant to do something, Which is part of his official duty which he failed to do. As observed by Oluyede.
The order of mandamus is a device for securing judicial enforcement of public duties. It is a discretionary power given to the courts. And which the courts will grant in suitable cases.
In Nigeria to obtain a writ Mandamus the following conditions must exist.
The petitioner must establish that he has a clear legal right for enforcement of
which the writ is sought.
The petitioner must also have the right to compel the performance of some duty
upon the respondent
The petitioner should ordinarily be the very person whose right is being
infringed.
The petitioner must prove that he had made the demand for the performance of
the duty relating to his right upon the public official and that the official had refused to perform it.
Disobedience to a mandamus is a contempt of court punished by fine or imprisonment.
PRIVATE LAW REMEDIES
Injunction
An injunction is a writ, which is issued against executive officials. It is a writ issued by the court restraining an official from doing a thing, which if done would cause irreparable damage to vested interests.
There are two types of injunction; namely positive and negative injunctions. A positive injunction directs the doing of an act; while a negative injunction prohibits the doing of an act. If there is an allegation that a public authority intends to take an action, which will result in injury to an individual, the person can go to court and asks for an injunction to stop the threatened action.
An injunction was granted against the Federal Government in the Shugaba case.
The court hereby grants an injunction, a permanent injunction restraining the respondents from interfering with the aforesaid rights of the applicant.
Declarations
Declarations state the rights or legal positions of the parties as they stand. Among other things. Declaration are aimed at:
i. Finding out some provisions of the law;
Finding out whether a law applies to a particular case;
Finding out whether a contract was been properly performed.
In B. A. Shitta-Bey V. Federal Republic Service Commission the plaintiff sought a declaration that his purported retirement was null and void.
References
Dean, M. E (1989) Judicial Review and Democracy,
DE Smith, S.A (1983) Foundation of Law: Constitutional and Administrative Law, Penguin Books
Elias, T.O (1977) Nigeria: The Development of its Law and Constitution, London: Stevens and Sons
Enabunene, S (2002) An Introductory course in Administrative Law, Benin: Ambik Press.
Foulkes, D (1988) Introduction to Administrative Law, London: Butterworths
Iluyomade, B.o and Eka, B.u (1992) Cases and Materials on Administrative Law, Ile-Ife: OAU press
Jennings, I, cited in Eddey, k.J Administrative Law, London, Butterworths.
Sanni, A.O (1999) Introduction to Nigerian Legal Methods: Ile-Ife: Kuntel Publishing House
Willoughby, W.W (1986) The fundamental concepts of Public Law, London: Macmillan
Introduction
Administrative law or the law of public administration is a subject with vast ramifications. Different scholars have defined it as it appears to them and this has greatly restricted the emergence of a universally acceptable definition. A broad view of the subject matter depicts it as the law relating to the organisation, composition, functions and procedures of public authorities and the legal retrains to which they are subject. It includes the whole of the law about local authorities and the services they provide, as well as matters of general principles.
What is Law
Much energy has been dissipated in an attempt to answer the question: What is law? Generally speaking, the concept law may mean different things to different people. The Chemist, Geographer, Economist or Physicist will definitely have different ideas of what law is.
The word “law” can be used in either a general or technical sense. For instance, we can talk of the law of a particular club, law of God, law of demand and supply etc. These are instances of law in a general sense. Our main concern in this course is with the technical meaning of law.
Law can be defined as a body of rules designed or formulated to guide human conduct or action which are enforced among the members of a given state or society.
From the above, the following can be deduced in line with the position of Sanni (Ed) in The Nigerian Legal Method (1999:2-4):
Law is a body rules
When a layman thinks of the law, he is probably of the opinion that all the laws of a state are contained in one single document, perhaps “the constitution”. This is incorrect. For instance, the offence of murder and the penalty is however expressly written in the constitution. Rather, this is enacted in section 316 of Criminal Code. As a matter of fact, law consists of multifarious rules some of which are written in the constitution and several other statutes, prior decided cases and other sources of law including customs, which are unwritten in nature.
It is Man-made
Laws are rules that society adopts to govern itself. Hence, law within the context of our definition cannot be regarded as God-given in the sense of the Ten Commandments contained in the Holy Bible of Koranic rules and injunctions. This statement however does not deny or minimize the importance of religious beliefs and values in motivating societies to adopt particular rules of law. While many factors including religion, ethics, customs etc usually have some bearing on the selection of the laws by which a society is governed, it must be realized that such values are not laws unless they have been enacted into a statute or selected for enforcement. Since law is man-made, man has the responsibility to determine to a large extent the content of the law of his society. If the law is bad or ineffective, man must take responsibility for it and cannot blame God or nature.
It is normative in character
Law is a norm, which tells us what to do and what to refrain from doing in order to achieve a particular objective. For instance, the rules of criminal law, which forbids stealing, and the killing of another under certain circumstances are to guarantee security of lives and properties. People who behave contrary to the norms of the society sometimes pay dearly for it either by compensating the injured party or incurring criminal sanction.
It has an Element of Coercion
Breach of law is usually enforced by means of sanction or coercion through organised institutions such as the Police Force, Law Courts, Tribunals, and Prisons etc. This is the main distinguishing factor between law and moral or ethical rules, which are ‘enforced’ (if enforced at all) through social opprobrium or loss of integrity in the eye of the members of the public or through informal or unorganized institutions.
Territorial Limitation
Law is usually made to guide the conduct of the people of a particular society or country and is binding on the people and properties within that territory. While the law of two or more communities may be similar, there are usually some marked differences depending on their respective needs, objectives, cultural, religious and other values. This is so even between different communities in the same country.
Dynamic in Nature
Law is not static but dynamic. Since law is meant to regulate the behaviour of man in the society, the content of the law of each society usually changes as the social, political and economic world in which he lives changes. For instance, the invention of motor vehicles, airplanes, computers, hi-tech electronics etc, created developments, relationships, demands and conflicts which necessitated the making of new laws and drastic alteration of old ones.
Characteristics of law
Law as a body of rules and regulations has the following characteristics
Laws are made by political and legal authorities. This means that for anything to be called a law or become law it must arise from a person or body of person vested with authority either legal or political e.g. the legislatures, government functionaries, government agencies e.t.c.
Laws are backed up by sanctions and reward. The law specifies sanctions for its violations and reward for compliance.
They are enforceable for anything to be called a law. It must be enforceable. That is the applicability of the law must be guaranteed.
The law must apply to every member of the community. This implies that the law does not discriminate against members of the community.
Finally, the law specifies punishment in case of any breach. This is one unique characteristics of the law. Because it states in advance the rules that governs decision making, the limit of sanction, in case of breach of law, who decide over such matter and the place of such decision in that regard, an individual who commits an illegal act knows before hand where, how and by whom and the condition he may be tried and the limit of his punishment if found quilt.
Administrative Law
Several scholars have tended to define administrative law in line with their orientation and philosophical disposition. For instance, Ivor Jennings (1981) explained it as the law, which relates to administration. It determines the organisation, powers and duties of administrative authorities’ while in Wade and Bradley’s (1985) view administrative law is a branch of public law which is concerned with the composition, power, duties, rights and liabilities of the various organs of government which are engaged in administration.
In the view of De Smith (1983), it is that branch of public law, which deals with the actual operation of government – the administrative process. To him, when the constitutional process has resulted in a duly elected government with powers to determine its policies and enact the necessary primary legislation and has done so the administrative process begins. Administrative law regulates the process of putting into effect or practice constitutionally decided policies.
Administrative law is concerned with the forms and constitutional position of public authorities, their powers and duties the procedures adopted in exercising such powers and their legal relationship with one another, with the people (citizens) and employees. It is that branch of law that is concerned with the control of governmental powers which embodies general principles that can be applied to the exercise of the powers and duties of authorities intervening to ensure that the myriad of rules and discretionary powers available to the executive conform to basic standard of legality.
Functions of Administrative law
A major function of administrative law is that it enables the task of government to be performed. This is made possible with the creation of administrative agencies by law, equipped with powers to carry out public policies as approved by parliament. Government makes policies and for these policies to be put into practical effect agencies are therefore created for its full implementation.
The second function of administrative law is that it governs the relations between an administrative agency and those individuals or private bodies over whose affairs the agency is entrusted with power. It is a means of control upon administrative power because it grants the individual power to challenge the action of an agency which is contrary to law or beyond the powers of the agency or which has adversely affected the individual.
A third function of administrative law is that it governs the relations between various administrative agencies. Finally, administrative law exist to ensure that public authorities take their decision in line or accordance with the law and it equally serve as a means of promoting accountability of public authorities.
Sources of Administrative Law
The meaning of the sources of administrative law in this sense implies the origin of and places where administrative law could be derived. In this regard therefore we would examine the following sources.
Case law: These are pronouncement and decisions of judges on cases brought before them. “Under the doctrine of judicial precedent the judge is always concerned to lay down legal principles consistent with those established in previous cases. This proves to be as important source of administrative law, arising from the increase in government businesses, which has led to an increase in the number of cases coming to the court.
Legislation and delegated legislation: As a source of law, they are the documentary laws made by parliament in respect to administrative authorities. They are equally laws made by bodies that have been empowered by parliament to act on its behalf. This source of administrative law has grown in importance because of the increases in the activities of government, which has gone beyond its traditional role.
Books of authority: Books of learned writers on the subject equally serve as a source of administrative law. Though administrative law has only been recently accepted as a separate branch of the law, and works on the area is still relatively few, there is a fascinating literature available relating to this branch of law.
DELEGATED LEGISLATION
Delegated legislation is any law made by any other body other than the legislature. It is a situation whereby the legislature delegates its powers of law making to certain individuals, groups and institutions to make laws on its behalf. It is the authority granted to other bodies outside the parliament to make law. Delegated legislation has been described by Lord Hewart as “an abdication by parliament of its primary constitutional legislative role”. All the orders, rules and regulations made by ministers, departments and other bodies owe their legal force to Acts of parliament. The recent trend toward delegation confirms that there has been a significant shift of power to the executive organs of the state and this has been justified by the greatly enlarged role of governmental activities in recent times and the constrains on parliamentary time.
As a result, parliament is obliged to delegate very extensive law-making power over matters of details and to content itself with providing a framework of more or less permanent statutes. In fact delegated legislation is essential because parliament is incapable of making all laws and often when they do pass statutes, there are obvious limits to the amount of detail that can be contained therein. The complexity and detail involved in the making of administrative rules requires that primary legislation is supported by delegated powers which also allows for greater flexibility.
It is common knowledge and tradition for statutes to be very broad statements of policy, it is therefore the responsibility of the executive to give meaning to the policy and implement same through delegated legislation.
Delegated legislation permits power to be conferred by parliament on other bodies such as local government authorities, ministerial departments, statutory bodies, corporations, professional bodies regulatory agencies, commissions, special tribunals etc. this is achieved through such means as ministerial order, by – laws, guidelines, departmental circulars and codes of conduct. It should be noted that while ministerial orders and by-laws are legally binding departmental circulars, guidelines and codes of conduct are not, which means that they do not have any direct legal effect.
Law making according to the theory of separation of powers is the constitutional role or function of the legislature but in modern government, this role have been abdicated by parliament. When a parliament or any legally constituted legislative body delegates some of its legislative powers to a minister/ministry, department of government, the resulting regulations are described as delegated legislation.
The recipient of delegated authority can make laws within the defined lines of their instrument that is an Acts of parliament which lay down in general terms the subjects on which he can legislate or issue regulations. The use of delegated legislation is indeed a development out of necessity. The modern parliaments are faced with a growing number of responsibilities ranging from the political, economic and social issues requiring legislation, but the parliament cannot enact statutes in details on this entire front, it therefore became necessary for parliament to delegate some of its legislative powers to the executive authorities and other bodies.
JUSTIFICATION OF DELEGATED LEGISLATION
Delegated legislation is an inevitable feature of modern government. It has assumed great importance because of the complexity of modern society and the number of delegated powers has increased astronomically. Arising from this therefore one can safely say that the ordinary man has come to be under the tyranny of delegated legislation.
This is because the ordinary man is faced with a web of laws, rules and regulations made not by the legislature but be the delegates of powers.
The legislature only make a broad outline or framework of an Act but the details and specifics which regulate and affect the lives of the ordinary citizen are spelt out by the delegates or powers (1) This state of affairs is justified on the ground that the legislature in modern society has, by far too many Acts to pass on too many issues that they cannot pay adequate attention to all of them. It therefore became necessary for it to delegate some of these to other bodies. (2) Furthermore the legislature is constrained by time and sheer volume of work to consider each of them in detail. If parliament attempted to enact all legislation itself, the legislative machine would break down unless there is a radical alteration in the procedure for the consideration of Bills. The granting of legislative power to a department, which is administering a public service, has removed the need for amending Bills.
Another justification of delegation of powers is the fact that the subject of the Acts is usually too technical in nature for the members of the legislature. The member of the legislature are not usually elected because of any expert knowledge, qualification or competence they cannot therefore be expected to handle most effectively modern issues that are complex and technical. In this regard they usually play it safe by making a broad and general Act while delegating the enabling powers to fill in the details to more competent bodies outside the legislature.
Another justification for delegated legislation is the need for flexibility and elasticity. The society is in a continuous state of change, and there is the need to provide administrative regulation to meet the need of this rapidly changing society. For instance when a major new social service is established, it is not immediately possible to foresee every administrative difficulty that may arise and when they does arises it is not possible to frequently recourse to parliament for amending the Act to accommodate the changes after the scheme has began to operate. In these circumstances delegated legislation fills these needs.
A further justification is in time of emergency where government may need to take action quickly and in excess of its normal powers to meet the exigencies of time. Under this circumstance, delegated legislation is most ideal and expedient both in speed and latitude to cope with the emergency. It should be pointed out that many written constitution include provision in times of emergency for the suspension of formal guarantees of individual liberty.
INSTRUMENTS OF DELEGATED LEGISLATION
By-laws: These are laws made by local authorities and other administrative agencies in the exercise of the powers conferred on them by statutes. They are local laws needed for regulation in particular situation existing or arising in any locality. They also include rules made by or on behalf of any authority. The local government Act allows local authorities to make by-law covering a wide variety of matters such as litter in public places, bicycles, carts, radio licenses, death and birth certificates etc.
Administrative rules: These include code of practice, circulars and guidelines, which plays an important role in government businesses, and the administration of the society. There has been an increased trend in recent years towards adopting these various forms of what has been termed “quasi – legislation” across a broad spectrum of policy making. There are obvious advantages in adopting such rules for example they are drawn up in less legal language which makes it easily comprehensible for the ordinary man, they are equally likely to be more flexible and may well indicate how any discretion in the application of a rule will be exercised. The code of practice may be highly desirable in performing an informational function.
The question for us to consider here is whether such provisions are legally enforceable? For example, the federal Highway Code to which every citizen is familiar with sets out some measures that are contained in the Road traffic acts. In addition, it provides direction for the guidance of road users, suggesting how they should conduct themselves in a wide variety situation. It should be noted that failure to observe the provision of the Highway Code will not in itself render a person liable to civil or criminal proceedings, but where such failure coincides with some other breach in the legislation then the road user may be liable to prosecution.
In the same vein, the codes of practice that accompany the police and evidence Acts are not strictly enforceable. If the police do not follow the code when arresting a suspect, it can lead to the court deeming the arrest to be unlawful, but members of the public cannot take proceeding against the police solely on the ground of non-compliance with the code(s).
Statutory instrument: These are rules and orders made by minister and other heads of government departments that are governed by provisions which are defined in the statutory instrument Act which confers power to make laws, rules regulations, approve orders on subordinate to legislations on the executive or his representative. It is the commonest type of delegated legislation especially in Nigeria and is made by ministers under powers conferred on them by Act of parliament.
PUBLIC SERVANTS AND THE LAW
Public servants work under a network of laws, rules, regulation codes and norms. Being a public servant, he is surrounded by various systems of laws, which determine and regulate his official conduct. We shall look at some of these laws.
THE LEGAL AND JUDICIAL SYSTEMS
Every modern state has its legal system, which is made up of both the substantive and procedural laws and the judicial organisations. For example, In Nigeria we have the penal code, the criminal code, the criminal procedure code, the Sharia laws, the customary laws and other enactments by the parliament. Also in Nigeria, we have various grades of courts – Supreme Court, Federal Court of Appeal, the Federal High Court, the state court magistrate courts and courts and customary court.
Public servants are guided by these legal and judicial systems. They are not to violate the provision of these laws in their official assignment. In case they do so, they would be taken to the ordinary law court like every other citizen.
BUREAUCRATIC NORMS
Apart from being regulated by the legal and judicial system, public servants are guided by the norms of bureaucracy. Since public servants operate in a bureaucratic system. They must adhere to the following norms:
Subject to authority only in official capacities.
Organised in hierarchy of offices
Each office has defined competence
Office filled by free selection
Officials are appointed on basis of technical competence.
Paid in money, fixed, graded salary, pension
Office is primary occupation.
There is career; advancement by seniority and / or achievement
Official is separated from means of administration
Official subject to discipline in conduct of office.
ORGANIZATIONAL NORMS
Public servants are also subject to general organizational behaviour. Some of the universal principles of organizations are as follows:
Specialization: By function and division of labour. Tasks are sub-divided and employees performing those tasks are allocated to functional departments.
Scalar principle: The chain of command is a line of authority moving downwards through the organizational structure.
Unity of commands: The idea of employees having to report to one boss.
Span of Control: This is a method of organizing effective supervision. It is usually considered to be five or six subordinates per superior.
Vertical Communication: The Chain of command is the official channel for communication.
Minimum authority level: Reducing the number of levels of authority thus, making communication and control easier and hence improving efficiency.
Line and Staff division: Line departments are to have direct responsibility for decision relating to the production of a good service, and staff departments, e.g. personnel were to provide specialist advice and services to assist the line departments.
ADMINISTRATIVE NORMS
Public administration has its norms, which every public servant is expected to obey. The minister is the political head of the ministry. He is therefore answerable to the people through parliament for what goes on in his ministry.
Neutrality
Public servants are expected to be politically neutral in the execution of their duties. The work of public service must be done irrespective of party in power. If the people are to be sure that the government they choose will carry out their wishes, then the public service to all parties. Regulations are made to protect public servants from the least suspicion of party bias; they are forbidden to stand at any election for public office or to take any open part in political argument. Political neutrality is an essential feature of public service norm, for example, if the public service of a state gives a particular political party open support, the same public service will not be able to perform well if another political party comes to power in that state.
Permanence
Ideally, once a public servant is employed he is expected to continue in service until he reaches the retiring age or is compelled to resign on the grounds of misconduct or ill-health.
Recent events in Nigeria have seriously threatened these characteristics of the public service. Since 1975 there has been a series of retrenchments in the public servants is now only in theory in Nigeria.
Anonymity
Everything, which is done by a ministry, is done in the minister’s name. If the policies are successful the minister is congratulated; if the policies are disastrous, the minister himself takes the blame. The minister may never under any circumstance defend himself by transferring the blame to the civil servants, especially as his civil servants cannot in turn defend themselves either publicly on in parliament.
ADMINISTRATIVE RULES AND REGULATION
Public servants are subject to many administrative rules and regulations. In Nigeria, the civil service Rules is the general guide to those in the civil service. Every public service has got rules, which regulate the administrative behaviour of its workers.
There are also specific regulations on various aspects of government functions; financial instruction guides administrators on how to spend government
And since the public service is not a stagnant institution changes are introduce from time to time through circulars, minutes and instructions.
ADMINISTRATIVE DISCRETION
Administrative discretion is defined as the ability of individual administrators in a bureaucracy to make significance choices affecting management and operation of programmes for which they are responsible.
The process of implementing laws involves a lot of discretion. The administrator is to decide which laws are to be implemented; how such laws are to be implemented. But in doing this, he must operate within the law. Consequently, laws are expected to limit the discretion of administrators.
In making arrest, the police are authorised by law to use a reasonable force. But a policeman who kills a person in this process has exceeded his limit of discretion and may be arrested and tried in the court.
In Nigeria, we have Criminal procedure Code and procedure Act that specified detailed procedures to be followed by the law officers in judicial proceedings.
The concept of administrative discretion is related to the due process clause. “Administrative due process” is that procedure which will normally be accepted by the court as reasonable under the circumstances, whether or not the judge thinks the substantive decision correct. The test of the Due Process Clause is usually based on “reasonableness” of fundamental fairness.
Other Aspects of Administrative Discretion
Before an administrator or his agency can take any action that would directly affect one or more persons or institutions, they generally give such affected parties adequate notice. The administrative discretion is necessary. In some instances the notice could be thirty days on the other hand indiscretion would make some administrators act without notice.
Disclosure of Reasons
Administrative agencies are usually required to state reasons for taking the action they intend to take. This can be done verbally or in writing. It would be an indiscretion on the part of the administrator to take action without stating the reasons for doing so.
Right of Hearing
Administrators are expected to allow aggrieved parties to be heard. No body should be dismissed from his job without being heard. No person should be deprived of his property without being heard. Every accused person must be given the opportunity to be heard before conviction. Such persons should be given legal representation if it is a court case.
If after a hearing, the protesting party is still not satisfied, he may appeal to a higher echelon within the agency. The resort to court should only come as a last action. Even if the issue gets to the court, appeals could also be entertained.
SOME CONSTITUTIONAL PRINCIPLES OF ADMINISTRATIVE LAW
THE PRINCIPLES OF SEPARATION OF POWERS
A French lawyer called Baron Montesquieu was the person who popularised the principle of separation of powers. As observed by Colin F. Padfield:
The germ of the idea was not new Aristotle had referred to it, John Locke (1632-1704). The English liberal philosopher, also postulated the doctrine in his second Treatise on civil Government; and Blackstone in his commentaries on the laws of England (1765) referred to the importance of mutual checks on governmental judiciary in English constitutional law.
Montesquieu visited England in company of Lord Chesterfield in 1729. He used the opportunity to study the English system of government, which he admired so much. On his return to France, he publishes his book titled De Esprit des Lois (the spirit of the laws) in 1748. It is in the Spirit of the laws that the principle of separation of powers was systematically developed. The principle “advocates that to avoid oppressive government the three types of governmental function (i.e. the executive, the judicial and legislative) should be kept separate. The ideal constitution would be one under which only the legislature legislates (i.e. make rules), only judges adjudicate (i.e. decide disputes on the basis of rule and only the executive formulates and through administrators, executes policy. Furthermore each of these arms of government should be made up of entirely separate personnel – no individual should be involved in more than one branch.
THE SUPREMACY OF PARLIAMENT, CONSTITUTIONS AND DECREE/EDICT
The issue of the supremacy of a particular political institution is determined by the nature of government. For instance the concept of the supremacy of parliament is, by and large, a British innovation. As Dicey observed:
The principle of parliamentary supremacy means neither more nor less than this, namely that parliament … has … the right to make or unmake any law whatever; and further that no person or body is recognized by the law…. as having a right to override or set aside the legislation of parliament.
Initially when the United Kingdom was established King had absolute powers. The Anglo-Saxon Kings were advised by the Witan and the Norman kings by the Great Council (the Magnum Councilium). This body was made up of “feudal barons, nobles, vassals and bishops. The great council was consulted by the King as from time to time on issues of national importance. The Norman Kings also established the Curia Regis (the court of the King). The House of Lords of Lords is the successor of the old Curia Regis. The Norman kings summoned not only barons on matter of great importance, but after 1262 another group – the commons – which included the knights from the shires and burgesses from the cities and boroughs. The two groups met separately from each other in private assemblies (to advice the King).
These two institutions – the Curia Regis and the common progressively developed into the modern British Parliament.
Initially the monarch enjoyed absolute powers and the two institutions mentioned above were acting in advisory capacity. But eventually the people through the Parliament started to struggle for their rights against royal absolutism. Their first victory was in the Magna Carta of 1215 in which the King promised to refrain from imposing any feudal tax save by the consent of the Council of the realm. The charter also contained the provision: “To no man will we deny or delay right or justice”.
The Rule of Law
If a government is not regulated, it can grow to be a monster. This must have informed the fear of Thomas Paine that “government even in its best state is but a necessary evil; in its worst state an intolerable one”. (Paine, 1953; 65). It is this attempt to make modern governments responsible and be less arbitrary that informs the concept of the rule of law.
It was A.V. Dicey who postulated the three ingredients of the rule of law. The first doctrine is that “no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal matter before the ordinary courts of the land” (Dicey, 1979, 193). The implication of this is to limit the arbitrary or even discretionary powers of the executive. The second doctrine is that “every man, whatever is his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals”. This implies equality of all citizens before the law. In other words, there should not be any special law for the rich and a special law for the poor. In interpretation, the law must be made to serve the end of justice for all. The third doctrine emphasizes the general rights to be enshrined in a constitution basically the right to personal liberty, right of association and of assembly.
The relationship of a constitution to the rule of law is that interests of the citizenry must be paramount and their rights guaranteed against the arbitrariness, rashness and abrasiveness of an incumbent leadership. In spite of the limitations to the rule of law, the three doctrines postulated by Dicey have remained central to modern constitutions. For example, a democratic polity guarantees the rule of law whereas autocratic and dictatorial regimes limit the rule of law.
Some breaches of the rule of law
In the practice of administrative law in Nigeria, certain breaches have been noticed and below are a highlight on some of such issues:
The existence of special administrative tribunals: The establishment of special administrative tribunals to handle special and specific areas of governmental function, some of which are administrative in nature while others are quasi – judicial. For instance, the Armed Robbery and Firearm tribunal, Rent and Revenue tribunals, are part of the ways the rule of law has been breached. Although the argument has been made that the establishment of special administrative tribunals is as a result of the growth in the complexity of government activities and functions which has made the ordinary processes of government to be inadequate and ineffective in handling them, it is important to state that these tribunals are not ordinary law courts and as such violate the principle of the rule of law.
Delegated legislation: The principle of delegated legislation is a violation of the rule of law this is because laws are made by the legislature after due consideration to the many safeguards of judicial procedure, and they are generally passed in the public interest; the processes of law making are complicated and complex a process which protect the public from involves laws. The laws made by other bodies other than parliament can not be said to posses these qualities and follow the rigorous process of lawmaking, and one cannot say that individual interest is adequately protected.
Exercise of discretionary powers: The exercise of discretion by public officers is considered as a breach of the rule of law and threatens the safety of the citizen. According to Davis “a public officer has discretion whenever the effective limits on his power leave him free to make a choice among possible courses of action or inaction”. And that “an officer who decides what to do or not to do often (a) find facts, (b) applies law (c) decides what is desirable in the circumstances after the facts and the law is known. The third of these three functions is customarily called '‘the exercise of discretion’ Judges for example exercises some degree of discretion in the performances of their duties, the executive particularly the chief executive in the exercise of prerogative of mercy exercise his own discretion.
Military Rule: Military rule which have become a major feature of most African State is a breach of the rule of law this is because military regimes finds its fulfillment in decrees.
COLLECTECTIVE RESPONSIBILITY/MINISTERIAL RESPONSIBILITY
The ministry is an administrative agency responsible for implementing government policies. The ministry as we know is under the minister. All the ministers constitute the cabinet of the government; since government policies are made collectively by the cabinet all minister are collectively responsible for their success and failure. For example the blame on the failure of the Green Revolution Programme under the Shagari regime cannot be on the Minister for Agriculture alone. The entire Shagari Government was responsible for it. Also the shortcoming of the Structural Adjustment Programme is not the responsibility of one individual minister rather on the entire Babangida Cabinet. Moodier observed:
In accordance with conventional rules about collective responsibility, all members of the administration are expected publicity to support its policies and its actions.
The Political Penalty of unpopular decision is the collective resignation of the entire cabinet of ministers.
On the other hand, the concept of individual ministerial responsibility is more specific. “Each minister is responsible individual for his own decision and for all the actions of the government department under his control. As correctly observed by Moodier, “legally and constitutionally a government department or ministry is its Ministers responsibility, and its civil service staff there simply to do the ministers bidding and carry out his policy.
Consequently the Minister is the spokesman of the ministry. He is expected to explain the works of his ministry to his colleagues in the cabinet as well as the general public when the need arises. Similarly he is to be blamed for his personal indiscretion and blunder. And id the case affects his integrity sense of judgement he may have to resign.
For example, in 1963, the British Secretary of State for War, Mr. Profumo resigned after confessing that he had misled Parliament about the nature of his relationship with a girl who had simultaneously been associated with a Russian diplomat. In 1974, Mr. J.S. Tarka resigned from the Gowon Administration after being accused of wrongdoings.
The idea of ministerial responsible does not mean that ministers are responsible for personal behaviour of civil servants working in their ministry. Every civil servant is expected to behave in accordance with established rules. “A minister does not feel bound to defend the actions of one of his officials, should that action have been taken in defiance of departmental policy or instructions of have resulted from the purely personal incompetence of a junior official. There are clearly established administrative procedures to be followed if civil servants misbehave.
GENERAL CONTROL OVER THE ADMINISTRATION
The authors of Federalist No. 51 have observed:
If men were angels no government would be necessary. If angels were to government, neither external nor internal controls on government would be necessary. In framing a government, which is to be administered by men over men the great difficulties, is this; you must first enable the government to control the governed; and in the next place allows it to control itself!
For the purpose of this section, we shall divide the general control over administration into two types. These are internal and external controls.
INTERNAL CONTROL
Staff services provide internal control over the administration. For example the personnel department determines how line department deal with their personnel problems.
Secondly, the budget department exercises financial control over the administration as it decides how money is to be allocated to the various departments.
A third area in which internal control is exercised over the administration is through tender board. Line departments must apply to the tenders’ boards for their major purchases and contracts. The tenders’ board usually follows a strict in meeting the demands of the line officers. Major government contracts and supplies are usually advertised and the general publics are encouraged to bid. Usually the tenders’ board accepts the lowest qualified bidder.
Auditing as another major area in which the staff department exercised control over the administration.
Perhaps the most important financial control unit is the auditing branch. It is the one, which is expressly charged with control and with little else. For obvious reasons, auditing is best perform by a unit that is as separate as possible from the activities that it is auditing.
In Nigeria, the important roles of auditors are expressed in the reform of the Public Service by the Babangida regime. The Task Force on the reform recommends that in order to prevent irregular payment before they are made, it is necessary to establish an Audit Alarm Committee comprising Auditor-General as Chairman, Accountant-General of the Federation and one representatives of the President, to examine all cases of alarm raised by the internal Audit. It shall be standard procedure for pre-payment audit queries raised by the Internal Audit but over-ruled by the Chief Executive to be referred to the Audit Alarm Committee. It will be deemed an offence for an officer to process any queried payment under the Audit Alarm System any further, without an audit certificate issued by the Auditor-General once or pre-payment audit alarm has been raised.
Most staff departments have inspectorate sections, which oversee the activities of line officers. In Nigeria, Ministries like education, judiciary and agriculture have inspectorate section. Our recent experience with the inspectorate section is the case of the Presidential Monitoring team on the Directorate of Food Road and Rural Infrastructure.
EXTERNAL CONTROL
There are many forms of external controls over public servants, these include controls exercise by the courts and other institution of government.
Parliament Control
The entire budget if the public service must be approved by the parliament before expenditure. Public servants are expected to defend their budget proposals in parliamentary committees, which can reduce or even increase the budget. This is a major control on public servants.
Parliament also exercise control over the government through confirmation of appointments. The Senate must consent to major appointments by the Executive branch before such appointments are regularised.
The third area of legislative control is in the power to investigate and expose. The cases of Governor Balarabe Musa in Kaduna State and the missing 2.8 billion Naira examples in Nigeria.
Public Opinion
In a democratic country where the people are responsive to the views of the general public, public opinion could be a major check on activities of public servants. This objective can only be realised if the media of the information is free.
Control by the Judiciary
“Judicial control over the administration is based on the simple doctrine of jurisdiction. The concept of judicial control is therefore the same thing like judicial review.
Griffith and Street asserted that:
Jurisdiction is the marking off of the area of power; something ascertainable at the outset of a process, the conditions on which the right of a body depends. Perhaps it should also be pointed out that the rule of law which forms the cornerstone of our legal system, demands proper limits on the exercise of power of the executive or any other authority and such limit must be consistent with certain principles of law such as the rule of natural justice. The purpose is simple. It is to impose a reasonable standard on administration.
We shall now examine specific areas of judicial control over the administration.
Fault in the Manner of Performance
An administrative act would be declared null and void due to the fault in the manner of performance. This would be due to “negligence, failure to observe proper procedure, rule against sub-delegation, abduction of discretion and abuse of discretion powers.
Duty to Act with due Care
A court could also declare the action of public servants null and void if due care was not exercised during the execution of the act. By due care we means that the act must be performed within the provisions of the law.
Improper Motive
Improper motive could also be used as a ground for judicial review. In the case of Ekemode V. Dlansa, the defendant who was a Road overseer of the Epe District Council caused the plaintiff’s canoe to be removed from the waterway at Epe. In carrying out instruction of the Epe District Council, the defendant broke the canoe. The Council’s instruction did not include the destruction of the Canoe. It was held that the deliberate destruction of the canoe after removal could not be regarded as either necessary or incidental to the authority imposed upon the defendant by this employer for the purpose of exercising its authority to clear the shore, water-way and land route. The defendant was therefore held liable. It is submitted that the subsequent action of destruction is malicious and was done for improper motive.
CONTROL OF ADMINISTRATORS THROUGH THE PRINCIPLE OF NATURAL JUSTICE
Definition of Natural Justice
Natural justice is often described as: “the right in man to have a fair and just treatment at the hands of the rulers or their agents.” It therefore serves as a limit to the actions of the state.
Judges have given different interpretation to the meaning of natural law. In this century judges have used the phrase in a way, which implies the existence of moral principles of self-evident and unarguable truth. Jackes argued that when the concept of natural justice is used this way it means natural law. It is in this sense that Lord Escher defined natural justice as “the natural sense of what is right and wrong.
Natural justice could also be used to judge the standards and procedures of laws. Thus, it is against the principles of natural to make retrospective laws. In Phillips V. Eyre (1870) the argument was advance that a retrospective colonial law was contrary to natural justice.
Natural justice, may vary in its requirements if relation changes in society. The developments in the concept of justice in every society determines the interpretation of natural justice. In Green V. Blake (1984) Lord Mangham has this to say.
The phrase (natural justice) is, of course, used only in a popular sense and must not be among men. Amongst most savages there is no such thing as justice in the modern sense. The phrase the principles of natural justice can only mean, in this connection the principles of fair play…
This interpretation made English courts to resort to the concept of fair play in action, common fairness, fairness of procedure and the fundamental principle of fair trial.
In Nigeria lynching is a common thing. This is because most people thought those caught re-handed committing crimes should be given summary judgement. Hence such people are often lynched to death. Furthermore people are usually frustrated with delays in investigation. They are also suspicious of the fairness of the police and court in providing true justice.
The Two Principles of Natural Justice
The first principle of natural justice is the right to be heard. Anyone who is affected or likely to be affected by a decision must be given an opportunity of being heard. It is therefore wrong for any person to be punished without being given the right to be heard.
The second principle is that no body should be a judge in his own case. Judges should not decide cases in which they have some interests.
THE RIGHT TO A FAIR HEARING (AUDI ALTERAM PARTEM)
When God found out that Adam had disobeyed Him, He asked him the reason for his act before he banished him from the Garden of Eden. This case is usually considered as the justification to the right to be heard. As correctly observed by Jackes, “Even God himself did not pass sentence upon Adam before he was called upon to make his defence.
Successive generations of mankind have recognised and adopted the principle of the right of fair hearing. “in the ancient world, the requirement of hearing both sides before reaching a conclusion was enshrined in a proverb often quoted in Greek literature and formed part of the Athenian judicial oath.
In England, the Magna Carta of 1215 specified that no man should be condemned except through the due process of the law. This Principle was also recognised by the Petition of Rights in 1628.
In the United State of America the principle of fair hearing was established in the Fifth and Fourteenth Amendment to the constitution.
During the mercantilist period the right of fair hearing was narrowly defined. For example if A was owed by B, he A could enforce payment of C if ‘C’ was indebted to B.
Jackes observed that the interpretation of judges on the principle of right of fair hearing varied from generation to generation.
While the right to a hearing and to an unbiased judge have, from the earliest days, been recognised by the common law, the willingness of the courts to interfere with the decisions on the ground of breach of these principles has varied from generation to generation. Throughout the nineteenth century the courts freely imputed an obligation to serve the rules of natural justice.
In R.V. Justices of West Riding of Yorkshire ex. P. Thornton (1837) Lord Denman said “No rule is more invariable than that a person shall not be prejudiced in any manner without being heard.” He went further to say that: it is implied by natural justice in the construction of all laws that no one ought to suffer any prejudice without first being giving an opportunity to be heard.
Cases which established the right of office holders to be heard before dismissal include Doe Thanet V. Garthan (1823): Willis V. Childe (1851); R. V. Darlington Free Grammar School: Bonaker V. Evans (1951).
In Nigeria, the case often used as an example of this principle is that of the Director of Audit (Western Region) V. Opula and others in Nigeria law Report 659,1961.
CONTROL OF ADMINISTRATOR THROUGH THE INSTITUTION OF OMBUDSMAN
The Office of ombudsman is called Public Complaint Commission in Nigeria. The History of the Public Complaints Commission in Nigeria can be traced to the Udoji Commission, which was set up by the Gowon Government in 1972. The Gowon Government accepted in Principle the Udoji recommendation on the establishment of the ombudsman institution in Nigeria. To this end the government set up the Nigeria ombudsman committee under Mr. J. D. Ogundere. This committee recommended the establishment of the institution in Nigeria. The Nigeria Public Complaint Commission was established by Decree No. 31 of 16 October, 1975 as amended by the Public Complaint Commission (Amendment) Decree No. 21 May, 1979.
GENERAL REMEDIES IN ADMINISTRATIVE LAW
It is inconceivable to think of legal rights without remedies. “If a person has a legal right and that right is violated then such a persons should be entitled to some remedy.” A remedy is therefore a compensation for the violation of legal right. A good legal system will produce efficient remedies and will regard such remedies as of utmost importance to the administration of justice. Remedies reverse legal decisions and make appropriate decisions to correct legal injuries. There are three types of remedies. These are:-
Constitutional remedies which are related to the violation of the provision of the constitution.
ii. Public remedies i.e. mandamus, certiorari and prohibition;
iii. Private law remedies i.e. damages injunction and declaration.
CONSTITUTIONAL REMEDIES
Constitutional remedies were invoked in the case of Shugaba Abdulrahammna Darma V. Minister of Internal Affairs and Bello other V. A-G Oyo State.
In the first case, Shugaba A Darma was deported from Nigeria without being tried in a court. The Borno High Court reversed the action on the ground that it contravened his fundamental rights.
In the Second case, the plaintiff who was accused of armed robbery and sentenced accordingly but filed a valid appeal to the supreme court was executed before the appeal was head. On December 5, 1986 the Supreme Court handed down a unanimous decision that the fundamental human right of late Bello to live until the appeal has been determined was violated. The government of Oyo State was found liable.
PUBLIC LAW REMEDIES
Habeas Corpus
The order of Habeas Corpus is issued by court when there is a wrongful deprivation of liberty. It is the procedure for challenging in court the legality of the detention of a person. The law is against wrongful detention. Any person arrested and detained by the police must be brought to trial within 24 hours. Indefinite detention is therefore not allowed.
On Friday April 6, 1984 Justice Ajao Oshodi of Lagos High Court Ikeja division ordered the release of seven detainees held under Decree No. 8, 1984 because the Detention order was not properly made.
In another case Mrs. Solarin cited a writ of Habeas Corpus seeking the release of her husband who was detained in 1984 under Decree No 2 Justice Candido Johnson held that the detention of Tai Solarin was wrong on procedural ground and ordered that he should be released.
Prohibitions
“A writ of prohibitions tries to prevent the performance or continuance of administrative action which must be judicial or quasi-judicial in nature. Whereas prohibition would lie where an administrative tribunal has not yet reached a decision: certiorari is the proper remedy for actions already completed”. As observed by Wade:
Prohibition developed alongside as part of the system of control imposed by the court of King’s Bench. It was a similar remedy but was prospective rather than retrospective. Primarily it lay to prohibit an inferior tribunal from doing something in excess of its jurisdiction.
Mandamus
Writ of mandamus is a command by a court to public servant to do something, Which is part of his official duty which he failed to do. As observed by Oluyede.
The order of mandamus is a device for securing judicial enforcement of public duties. It is a discretionary power given to the courts. And which the courts will grant in suitable cases.
In Nigeria to obtain a writ Mandamus the following conditions must exist.
The petitioner must establish that he has a clear legal right for enforcement of
which the writ is sought.
The petitioner must also have the right to compel the performance of some duty
upon the respondent
The petitioner should ordinarily be the very person whose right is being
infringed.
The petitioner must prove that he had made the demand for the performance of
the duty relating to his right upon the public official and that the official had refused to perform it.
Disobedience to a mandamus is a contempt of court punished by fine or imprisonment.
PRIVATE LAW REMEDIES
Injunction
An injunction is a writ, which is issued against executive officials. It is a writ issued by the court restraining an official from doing a thing, which if done would cause irreparable damage to vested interests.
There are two types of injunction; namely positive and negative injunctions. A positive injunction directs the doing of an act; while a negative injunction prohibits the doing of an act. If there is an allegation that a public authority intends to take an action, which will result in injury to an individual, the person can go to court and asks for an injunction to stop the threatened action.
An injunction was granted against the Federal Government in the Shugaba case.
The court hereby grants an injunction, a permanent injunction restraining the respondents from interfering with the aforesaid rights of the applicant.
Declarations
Declarations state the rights or legal positions of the parties as they stand. Among other things. Declaration are aimed at:
i. Finding out some provisions of the law;
Finding out whether a law applies to a particular case;
Finding out whether a contract was been properly performed.
In B. A. Shitta-Bey V. Federal Republic Service Commission the plaintiff sought a declaration that his purported retirement was null and void.
References
Dean, M. E (1989) Judicial Review and Democracy,
DE Smith, S.A (1983) Foundation of Law: Constitutional and Administrative Law, Penguin Books
Elias, T.O (1977) Nigeria: The Development of its Law and Constitution, London: Stevens and Sons
Enabunene, S (2002) An Introductory course in Administrative Law, Benin: Ambik Press.
Foulkes, D (1988) Introduction to Administrative Law, London: Butterworths
Iluyomade, B.o and Eka, B.u (1992) Cases and Materials on Administrative Law, Ile-Ife: OAU press
Jennings, I, cited in Eddey, k.J Administrative Law, London, Butterworths.
Sanni, A.O (1999) Introduction to Nigerian Legal Methods: Ile-Ife: Kuntel Publishing House
Willoughby, W.W (1986) The fundamental concepts of Public Law, London: Macmillan
Thank you for this very informative article. Please you tell me more on the reasons for delegated legislation in Nigeria. I read an article on that here: https://bscholarly.com/reasons-for-delegated-legislation/
ReplyDelete