Social Care Needs Theme: Effective Services

It can be deduced from the foregoing that the hinge of the classification of administrative powers into various categories exists more in theoretical conception than in actual operations of administrative agencies. Nonetheless it is important to classify administrative functions for the following reasons

3.4.1 The right to fair hearing and Rule against interest and Bias

When an administrative authority’s power is classified as judicial or quasi-judicial, the administrative agency is obligated to observe the rules of natural justice. In other words, in its deliberations, it must comply with the requirement of fair hearing and the rule against interest and bias. In Fawehinmi Vs Legal Practitioner’s Disciplinary Committee (1982) 3 N.C.C. 719 Fawehinmi published a book which was advertised in West Africa Magazine. When he was invited to appear before the committee, he refused and went to court because he alleged there was a likelihood of bias. The court upheld his argument. Conversely, if a power is classified as legislative, executive or administrative, the rules of natural justice do not apply. Note that the non applicability of the rules of natural justice to legislative, executive or administrative acts does not imply that the donee of power is at liberty to act purely to suit his whim and caprice.

Cases abound when courts in Nigeria have nullified rules made by administrative agencies and sometimes certain offending provisions of the enabling statute are also nullified.

3.4.2 Prerogative Remedies

Prerogative orders of prohibition and /or certiorari are normally available to quash an administrative action classified as judicial or quasi-judicial. However, in the case of legislative, executives or administrative act an order of mandamus may lie to compel performance of a

public duty. In the case of Banjo & Ors Vs Abeokuta Urban District Council (1962) N.M.L.R. 296 the court issued the order of mandamus to compel the council to grant licenses for operating taxis in their area to the appellant holding inter alia, that the council had no discretion in the matter once he had satisfied the stipulated requirements. Note also that the Fundamental Human Rights (Enforcement Procedure) Rules 1979 have liberalized the processes of prerogative remedies. Formerly, this issue of the correct remedy in administrative law was a major of dissatisfaction and led to considerable miscarriage of justice. Issues were settled on the nature of the remedy chosen by the plaintiff rather than the substance of his cause. Major reforms carried out and the introduction of application of Judicial Review has considerably ameliorated the situation. This has also been the method of choosing remedies introduced by the Fundamental Rights (Enforcement Procedure) Rules of 1979. The combined effect of these is to make the choice of remedies more flexible and easier for the plaintiff.

3.4.3 Duty to Give Notice

Where a power is legislative or administrative, there is no requirement to give notice as a general rule except a statute provides that notice be given to persons likely to be affected or that they be consulted. However where a power is judicial or quasi-judicial then notice must be given to the person to be affected, otherwise the decision or action thereon, may be set aside for failure to observe the rules of natural justice.

3.4.4 Sub-delegation

The general rule is delegatus non potest delegare, which means that a person to whom power has been delegated cannot sub-delegate. Executive or Ministerial or administrative authorities can sub-delegate without express or implied power to do so. But where the said power is legislative, judicial or quasi- judicial it cannot be sub-delegated.

3.4.5 Ultra Vires

Where a power is legislative, an exercise of it may not be set aside by court on ground of been unreasonable, arbitrary, or ultra vires except for the instances it breaches the constitution or other statute. However where a power is administrative or executive, it will be set aside as ultra-vires on ground of unreasonableness, arbitrariness, mala fide etc. In Unilorin Vs Adesina(2009) 25 W.R.N. 97 an issue came up for determination on whether court has jurisdiction to entertain matters on administrative affairs of a University. In his judgment Per Agube JCA commented

“In so far as the award of a degree or certificate is concerned, the courts have no jurisdiction in the matter and any attempt by any court including the Supreme court to dabble into the arena of purely administrative and domestic affairs of a university may lead to undue interference and weakening of the powers and authority conferred on the universities by statute and will not be

justifiable or justified. He went on to say that “the courts are reticent in interfering in the domestic dealings of a citadel of learning and excellence such as a university, in situations where the university in the process of performing its functions under the law is found to have breached the civil rights and obligations of its students, the court will not hesitate to step in to remedy the grievances and grant reliefs for the protection of those rights and obligations.

4.0 Conclusion

Since separation of powers does not apply in the realm of administrative law, we could ordinarily suggest that it is unnecessary to classify administrative power or function into legislative, executive, judicial or quasi-judicial power. In other words, because all the powers exercisable by the three arms of government can be exercised by one single administrative authority, then there is no basis for classification.

However, even if only for theoretical purposes, it is worthwhile. This is because it allows for clarity of thought and conceptual elucidation. Though the problems of classification tend to be complex, discussing it stands us in a vantage position to better appreciate this area of administrative law.

Since classification determines the legal consequences attendant to the exercise of administrative action, we have added incentive to know the much we can in classifying power. We will surely be the better for it when we realize that such classification enables us to know that many administrative activities that victimize us can actually be redressed in the courts. Thus, the significance of practically itemizing the consequences of classifying administrative power one way or another cannot be overemphasized.

5.0 SUMMARY

In this Unit, we dealt with the classification of administrative powers or functions. We note that the essence of such exercise derives from the fact that the legal consequences of the exercise of such power necessarily depends on the classification. However, we understand that there are naughty problems confronting satisfactory classification. Nonetheless, we rounded off with a consideration of the importance of the classification itself.

6.0 TUTOR-MARKED ASSIGNMENT

1. Assess the justification for the classification of administrative power or functions.

7.0 REFERENCES/FURTHER READINGS

1. B.O Iluyomade & B.U. Eka, Cases and Materials on Administrative Law p. 4 (Ibadan: Obafemi Awolowo University Press Limited, 1992).

2. Ese Malemi, Administrative Law (Lagos: Princeton Publishing Company, 3rd Edition, 2008).

MODULE 2 BASIC CONSTITUTIONAL CONCEPTS IN ADMINISTRATIVE LAW