LAW 443 ADMINISTRATIVE LAW I NATIONAL OPEN UNIVERSITY OF NIGERIA SCHOOL OF LAW COURSE CODE: Law 443 COURSE TITLE: Administrative Law I 1 LAW 443 ADMINISTRATIVE LAW I Course Code: Course Title: Course Developer/Writer: Administrative Law I Law 443 Simeon Igbinedion, LL. B. , LL. M. , B. L. , PH. D. , Faculty of Law, University of Lagos. Professor Animi Awah Ifidon Oyakhiromen, LL. B, LLM, M. Phil, Ph. D, BL Course Editor: AG. Dean,/Programme Leader: Course Coordinator: Mr. Ayodeji ige, LLM, BL 2 LAW 443 ADMINISTRATIVE LAW I COURSE GUIDE CONTENTS PAGE Introduction ……………………………………………………………………….. What You Will Learn in this Course ………………………………………………. 2 Course Aims ………………………………………………………………………. 3 Course Objectives ………………………………………………………………… 3 Study Units ……………………………………………………………………….. 3-4 Tutor-marked Assignment …………………………………………………………. 4 References/Further Reading ……………………………………………… ……. 4 3 LAW 443 ADMINISTRATIVE LAW I Introduction Consider a situation where your residential property in which you have lived for decades has been demolished by the authorities of the FCT, or the Lagos State Ministry of Environment for allegedly being located in an industrial area.
Suppose some customs officers at a checkpoint found you in possession of items which they claim to be contraband and, therefore, seized pursuant to the new Customs policy of zero-tolerance of goods likely to endanger the economic growth or contribute to the economic adversity of the country? But it turns out that you can, in law and in fact, possess or own those items. Imagine yourself as a principal of Secondary School in Lagos State. The host community of your School wrote a petition against you to the Ministry of Education. Acting on the petition, the Ministry indefinitely suspended you and later retired you compulsorily.
How about a circumstance where a government department refuses you entry into its premises on the ground that you are not affiliated to a particular religion? Or where, upon your entry into the premises of a government agency, you were ordered by the sole administrator to be detained for hours? The above scenarios which touch on the right to property, the right to fair hearing, freedom from discrimination and of religion, and freedom of movement belong to the realm of administrative law. This Course – Law 443 (Administrative Law 1) – is one of the Law Courses you are required to take in order to obtain your LL.
B. degree. Building on your knowledge of the workings of the three arms of government – the legislature, the executive and the judiciary – the Course will acquaint and arm you with the legal regime governing the activities of governmental agencies – ministries, departments, and parastatals – in their delivery of goods and services to the citizens and other persons in Nigeria. The Course will demonstrate that the relationship amongst the tripod or trilogy of legislature, executive and judiciary is not all there is to law-making, law execution and law enforcement.
But, much more than that, the Course will introduce to you the legal regime that authorizes or permits these governmental agencies whether at the Federal, State or Local government levels to make and enforce rules, regulations, bye-laws and policies in their various spheres of influence to the benefit or detriment of members of the public. The Course comprises 16 study units, taking into consideration the convenience of students. Within the scope of its First Semester coverage, the Course promises to take you through the theory and practice of the structures of administrative agencies. LAW 443 ADMINISTRATIVE LAW I What You Will Learn in this Course This Course is a 400 level course for students who are enrolled for the LL. B. degree programme. It is equally useful for persons who, though not interested in obtaining a degree in law, desire to know the rights, functions, responsibilities and liabilities of governmental agencies in their frequent or routine contact with members of the public. In Law 443, you will learn the ambit of administrative law including, inter alia, its relationship with constitutional law, functions, utility, and classification.
Also, you will be familiarized with the concept of the rule of law. Against the background of executive lawlessness and wanton disobedience of court orders by pre-2007 Nigerian leadership, it is on record that the present government – formerly under the rulership of late President Musa Yaradua but now under the headship of President Goodluck Jonathan – prides itself on the observance of the “rule of law. ” But what the doctrine is really about in theory and practice would be fully examined. Also within your learning purview is the doctrine of separation of powers.
You will learn the myth or reality separateness of the three arms of government – the legislature, the executive and the judiciary – and, most important, its manifestation in the Constitution of the Federal Republic of Nigeria (CFRN) 1999. Last but not least, you will learn the contours of delegated legislation. In specific terms, you will realize that the laws, rules and regulations that we are obliged to obey do not all emanate from the legislative arm of government but that governmental agencies are active participants in law-making.
Note that in the course of our journey through the Course, we shall strive to roll back the frontiers of our ignorance and prejudices regarding public administration. Having come this far in your pursuit of LL. B. degree, you need no special reminder as to the importance of cases as a source of authority in legal discourse. But, for emphasis sake, you have to prepare to read and digest cluster of cases especially landmark cases and cases that are elucidatory of previously unsettled issues of law.
Course Aims Within the scope of this First Semester, Law 443 aims at equipping students with the basic knowledge of administrative law. In other words, it will expose the student to the workings of governmental machinery in the implementation of laws, rules, regulations, bye-laws and even regulations. More specifically, the aims of the Course include apprising the student of the knowledge of: (a) The scope and nature of administrative law; 5 LAW 443 ADMINISTRATIVE LAW I (b) Governmental agencies and their functions; (c) The powers and procedures f administrative agencies; (d) Legal concepts such as ultra vires, intra vires, excess of authority, etc; (e) Judicial interpretation of administrative acts; Course Objectives Upon successfully completing this Course, you should be capable of: (a) Knowing the relationship between administrative law and constitutional law; (b) Realizing the implications of classifying administrative acts into legislative, executive, judicial and quasi judicial; (c) Understanding what power can or cannot be delegated; (d) Assessing the effectiveness of extant administrative apparatus in Nigeria; (e) Contributing to the contemporary debate as to the need for revolutionary overhaul of the administrative machinery of Nigeria. Study Units This study material consists of four modules and 19 units as follows: Module 1 Unit 1 Scope of Administrative Law Unit 2 Administrative Law v.
Constitutional Law Unit 3 Administrative Agencies and Functions Unit 4 Classification of Administrative Powers Module 2 Unit 1 Separation of Powers Unit 2 Rule of Law Unit 3 Constitutional Supremacy Unit 4 Legislative Supremacy Module 3 Delegated Legislation Unit 1 Unit 2 Justification of Delegated Legislation Unit 3 Validity of Delegated Legislation Unit 4 Control of Delegated Legislation 6 LAW 443 ADMINISTRATIVE LAW I Module 4 Unit 1 Decision and Rule Making Procedures Unit 2 Types of Rule Making Procedure Unit 3 Publication of Decisions and Rules Unit 4 Control of Administrative Powers Tutor-Marked Assignment In each study unit, you will find useful self-examination questions and tutor-marked assignments.
They are meant to trigger your application of acquired knowledge. It is advisable that you attempt answering them the same way you would attempt examinations questions. References/Further Reading Note that at the end of each module will appear the citation of some authorities we have consulted in writing this Course or, at any rate, those that provide useful and informative insight to the Course. 7 LAW 443 ADMINISTRATIVE LAW I Course Code: Course Title: Course Developer/Writer: Law 443 Administrative Law I Simeon Igbinedion, LL. B. , LL. M. , B. L. , PH. D. , Faculty of Law, University of Lagos. Professor Animi Awah Ifidon Oyakhiromen, LL. B, LLM, M. Phil, Ph. D, BL Mr. Ayodeji ige, LLM, BL
Course Editor: AG. Dean,/Programme Leader: Course Coordinator: 8 LAW 443 ADMINISTRATIVE LAW I CONTENTS PAGE DEFINITION OF WORDS AND PHRASES ……………………………. i MODULE 1 Unit 1 Unit 2 Unit 3 Unit 4 MODULE 2 Unit 1 Unit 2 Unit 3 Unit 4 ……………………………………………………………… 1 Scope of Administrative Law ………………………………. 1 Administrative Law v. Constitutional Law ……………… … 13 Administrative Agencies and Functions ……………………. 20 Classification of Administrative Powers ……………………31 …………………… …………………………………………. 42 Separation of Powers ………………………………………… 42 Rule of Law ………………………………………………….. 53 Constitutional Supremacy ……………………………………. 63 Legislative Supremacy ……………………………………….. 76
MODULE 3 …………………………………………………………………86 Unit 1 Unit 2 Unit 3 Unit 4 Delegated Legislation …………………………………………86 Justification of Delegated Legislation ……………………….. 96 Validity of Delegated Legislation ……………………………106 Control of Delegated Legislation ……………………………113 MODULE 4 …………………………………………………………………. 122 Unit 1 Unit 2 Unit 3 Unit 4 Decision and Rule Making Procedures ………………………122 Types of Rule Making Procedures …………………………… 128 Publication of Decisions and Rules …………………………. 138 Control of Administrative Powers …………………………… 145 9 LAW 443 ADMINISTRATIVE LAW I MODULE 1 Unit 1 Unit 2 Unit 3 Unit 4 UNIT 1 CONTENTS 1. 0 2. 0 3. 0 Introduction Objectives Main Content 3. 1 Historical Background 3. 2 Administrative Law in Nigeria 3. 3 Common Features of Administrative Law 3. Definition of Administrative Law Conclusion Summary Tutor-Marked Assignment References/Further Readings Scope of Administrative Law Administrative Law v. Constitutional Law Administrative Agencies and Functions Classification of Administrative Powers SCOPE OF ADMINISTRATIVE LAW 4. 0 5. 0 6. 0 7. 0 1. 0 INTRODUCTION Amongst the several categories of law, public law is one. Public law is the branch of law regulating the relationship between the citizen and the State. Administrative law is a public law category in the sense that it deals with the intercourse between governmental institutions on the one hand and private individuals or corporations on the other.
Because of the involvement of the modern State in activities hitherto the exclusive domain of non-governmental actors, there has been the need for governments to establish many agencies, that is, ministries, parastatals, bureaus, departments, etc for the actualization and implementation of governmental projects and programmes. Since the traditional governmental structure only envisages the three arms of government – legislature, executive and the judiciary – the creation of the agencies has had to contend with relevance and constitutionality. 10 LAW 443 ADMINISTRATIVE LAW I Administrative law is all about administration of state affairs by the afore-mentioned agencies.
More specifically, administrative law, inter alia: (a) Relates to the power and procedures of administrative agencies and the remedies available to persons who may be aggrieved by the conduct of these agencies; (b) Deals with the transfer of power from legislatures to agencies; the exercise of such power by the agencies, and the judicial review of administrative action; (c) Concerns the organization, functions, powers or authority of governmental agencies; and (d) Regulates the relationship amongst administrative agencies, and the relationship between their employees and the public. 2. 0 OBJECTIVES At the end of this Unit, you will be able to: • • • • 3. 0 3. 1 Define or describe administrative law; Analyze the nature and character of administrative law; Explain the relationship between administrators and citizens; Demonstrate the history and development of administrative law. MAIN CONTENT Historical Background
By virtue of Nigeria’s colonial relationship with the United Kingdom (UK), it is a common law jurisdiction. One of the laws Nigeria received and adopted into its legal system is British administrative law. Therefore, we can hardly do much justice to the discourse on the nature of administrative law without making reference, howbeit brief, to administrative law in the UK. For a long time and until late 20th Century, the British legal system was perceived to lack administrative law. This was despite the fact that governmental powers were already placed in the hands of authorities other than those wielding legislative, executive and judicial powers. According to Prof.
Wade, “as far back as 1888, Maitland had percipiently remarked that about half the cases in the Queen’s Bench Reports had to do with the rules of administrative law. But the rules were not studied. Instead, lawyers were brought up in the fashionable fallacy that administrative law 11 LAW 443 ADMINISTRATIVE LAW I was repugnant to the British constitution. ” 1 The perception of administrative law’s repugnancy to the British constitution is attributed to Prof. A. V. Dicey’s misreading of the country’s legal system. Dicey did a comparative study of English legal system and that of continental law countries. In the UK, ordinary courts enforce both public and private law without any discrimination on the basis, for example, of the status of the parties to the dispute or suit.
However, in France – a civil law jurisdiction – administrative law (droit administratif) is administered by special courts while private matters are handled by ordinary courts. Because the French administrative law peculiarity was not reflected in the UK system, Dicey declared the latter as lacking administrative law. In other words, he claimed that there was no administrative law in the UK. In his The Law of the Constitution (1885), Dicey said that administrative law was foreign to the British constitution and that it was incompatible with the rule of law, with the common law and constitutional liberty. Of course, his judgmental conclusion was erroneous.
The fact is that administrative law existed long before the term ‘administrative law’ ever came into common usage, the problem being that the UK and the US failed to recognize it because English writers did not classify it. 2 The verdict of Dicey was so influential that, as late as 1963, Lord Reid in Ridge v. Baldwin 3 said that “we do not have a developed system of administrative law. ” This statement should, however, be contrasted with that of Lord Denning who in Breen v. Amalgamated Engineering Union 4 asserted the contrary about a decade later. Note that in the US, the decisive first step in the development of modern administrative law was the growth of administrative regulation of private economic activity in the latter half of the 19th Century.
For example, the limitations of State regulation of interstate railroad operations led to the establishment in 1887 of the first great federal regulatory agency, the Interstate Commerce Commission. 5 3. 2 Administrative Law in Nigeria 1 H. W. R. Wade, Administrative Law 10-11 (Oxford: Clarendon Press, 3rd Edition, 1971). 2 Kenneth Culp Davis 6 (Minnesota: West Publishing Co. , 2nd Edition, 1975). 3  AC 40. 4  2 QB 175 at 189. 5 Stephen G. Breyer & Richard B. Stewart, Administrative Law and Regulatory Policy 23 (Toronto: Little, Brown and Company,1979). 12 LAW 443 ADMINISTRATIVE LAW I In its reception of English laws, Nigeria inherited English jurisprudence of administrative law into its domestic legal system at independence in 1960.
Desirous of fast-tracking the socio-economic and political development of various societal sectors, the national leadership of the newly independent Nigeria adopted State-centred economy by which the country assumed responsibilities previously performed by private persons and corporations. The by-product of this was the necessity of creating myriad governmental agencies such as the railway corporations, marketing boards, etc. Over and above the capacity of civilian governments, successive military regimes had a field day churning out series of agencies or tribunals. Such capacity was understandably fuelled by the fact that the modus operandi of military regimes is to act with dispatch. At present, there are hundreds of governmental agencies charged with different functions including the delivery of goods and services, and the enforcement of certain rules and regulations.
The principal institution driving the machinery of administrative law is the executive branch of government. Thus, S. 5 of the Constitution of the Federal Republic of Nigeria (CFRN) 1999, provides that the executive power is vested in the president or governor and may be exercised by him directly or through the Vice-President or Governor or Deputy Governor, ministers or commissioners and other officers of the public service. Such powers extend to the execution and maintenance of the CFRN and all laws made by the National Assembly and all matters with respect to which the National Assembly is competent to make laws. It is the process of executing this power that makes up the administrative arm of government and administrative law.
Therefore, the study of administrative law is the study of how the president carries out his enormous duties through the ministries, public corporations and other government agencies in accordance with the provisions of the constitution, thus maintaining the rule of law which is the president’s primary function. Also, this study is important because it is through these agencies that citizens have their closest contact with government. 3. 3 Common Features of Administrative Law No matter the origin or the ramification of administrative law, there are certain features it possesses which you should bear in mind. They are as follows: 13 LAW 443 ADMINISTRATIVE LAW I (a)
Close to 60 years ago, administrative law was defined or described only in terms of the powers exercisable by governmental agents and the remedies available to victims of the exercise of such powers. However, because of the increasing vesting of powers on these governmental agents and the concomitant abuses of such powers, there has been the need to include the process or procedure for carrying out administrative acts. An adjunct to this is the fact that administrative law focuses more on issues of remedies and procedures than on substantive law. (b) Administrative law in continental (civil law) countries like France, Italy, Germany, Japan, etc, is wider that that of common law jurisdictions. In the former, separate courts handle public and private matters. Thus, in
France, for example, special courts are constituted to determine administrative cases. On the other hand, common law jurisdictions have one system of court that handles cases derived from administrative (public) law and private law. In other words, ordinary courts, not special administrative courts, determine cases regarding the validity of governmental action. The advantage that the common law jurisdictional system has over the other is that citizens have access to highly esteemed courts that can give effective or appropriate remedies. Also, the subjection of both governmental and private conducts to the same ordinary courts suggests the equality of all before the law.
But the drawback is that judges handling administrative matters may not be versed enough in the area as to efficiently dispose of matters brought before them. 6 (c) Administrative process is closer to the grassroots than the legislative or judicial process. It is true that in enacting laws for the country, the National Assembly impacts on every natural and artificial person within the territory of Nigeria. But such laws lay down general principles or policy which can only be made ‘real’ at the level of implementation – the turf of governmental agents. In the case of judicial authorities, most citizens are not directly affected by the decisions of the courts.
In fact, there is overwhelming number of citizens who in their life time never have cause to invoke judicial process or to have it invoked against them. However, when it comes to the activities of governmental agents, everybody is in one way or another affected on a daily basis. In other words, the exercise of powers by governmental agents frequently impact on the people because the latter are the closest governmental authorities to the people in the delivery of William Wade & Christopher Forsyth, Administrative Law 12 (Oxford, UK: Clarendon Press, 1994). 14 6 LAW 443 ADMINISTRATIVE LAW I goods or services. Notice, for instance, how Power Holding Company of Nigeria PHCN), Federal Road Safety Commission (FRSC), Lagos State Traffic Management Authority (LASTMA), Federal Inland Revenue Service (FIRS), the Economic and Financial Crimes Commission (EFCC), the Independent Corrupt Practices Commission (ICPC), the National Drugs Law Enforcement Agency (NDLEA), etc, routinely affect the lives, liberty and property of citizens. (d) Another usual feature of administrative agency is their ‘independence. ’ While such term expressly forms part of the name of some agencies (e. g. Independent National Electoral Commission [INEC], Independent Corrupt Practices Commission [ICPC]), it is implied in many, and unintended in others. Such independence may be indicated in the enabling Statute. But the concern here is to know why we are interested in the independence of the governmental agency. We may settle this by yet another related question: why do we invest much to ensure the independence of the judiciary?
The explanation lies in the fact that a person or institution empowered to pronounce on the rights and liabilities of others must be so placed in such a position as not to be unduly influenced by extraneous factors or interests. But how do we determine the independence of these agencies? Independence, real independence, may not be found in the nomenclature of the agency but in some other instruments. For example, S. 4 of the EFCC Act 2004 forbids the President and Commander-in-Chief from appointing the Chairman or a member of the anti-corruption agency unless there is senatorial confirmation or concurrence. Independence could also be guaranteed where the position of members of the agency is tenured.
There are sundry arguments against the independence of governmental agencies including the one that making an agency independent undermines the capacity of the President to fully control governmental operations. But when we are confronted with the enormity of administrative functions, we would have no choice but to accept the vesting of powers in administrative agents as necessary evil, and to insist only on control of such powers. SELF ASSESSMENT EXERCISE 1 1. 2. What are the reasons for the late development of ‘Administrative law’? Enumerate the features of administrative law. 15 LAW 443 ADMINISTRATIVE LAW I 3. 4 Definition of Administrative Law
Like many legal terms, ‘administrative law’ does not possess a universally acceptable definition. Therefore, each definition reflects the orientation of the definer. Nonetheless, several attempts have been made to define or, at least, describe the term. It is our intention to consider the various definitions that have been offered by scholars with a view to our abstracting the features common to them. In the view of David Scott and Alexandra Felix, administrative law is broadly defined as the law which regulates the exercise of power conferred under the law upon governmental bodies. 7 In this definition, the grant of power is not expressed but implied. Kenneth C.
Davies improves on this approach by defining administrative law as the law concerning the powers and procedures of administrative agencies. One area that the above two definitions ignore is that of remedies invocable by persons who may be adversely affected by administrative acts. Thus, the definition rendered by Bernard Schwartz is preferable: administrative law is that branch of law which controls the administrative operations of government, setting forth the powers which may be exercised by administrative agencies, laying down the principles governing the exercise of those powers, and providing legal remedies to those aggrieved by administrative action. 8 Similarly, Professor P. A.
Oluyede sees administrative law as that branch of our law which vests powers in administrative agencies, imposes certain requirements on the agencies in the exercise of the powers and provides remedies against unlawful administrative acts. Definitions reflecting not only powers, procedures and remedies but more have also been offered. For example, Professor E. C. S Wade & Prof. Bradley define administrative law as a branch of public law which is concerned with the composition, powers, duties, rights and liabilities of the various organs of government which are engaged in administration or, more precisely, the law relating to public administration. In the view of Foulk, administrative law is the law relating to public administration. To him, it is concerned with the legal forms and onstitutional status of public authorities; with their powers and duties and with the procedures followed in exercising them; with their legal relationships with one another, with the public and David Scott & Alexandra Felix, Principles of Administrative Law 3 (Great Britain: Cavendish Publishing Ltd, 1997). 8 Bernard Schwartz, Administrative Law 1 (Toronto: Little, Brown & Co. , 1976). 16 7 LAW 443 ADMINISTRATIVE LAW I their employees. 9 Amidst the different attempts made to define administrative law, there are certain features that we can identify with administrative law. They are enumerated and, where appropriate, discussed in the next sub-section. 3. 4. 1 Definitional Abstraction a) Administrative law relates to the power and procedures of administrative agencies and the remedies available to persons who may be aggrieved by the conduct of these agencies; (b) It is about the transfer of power from legislatures to agencies, the exercise of such power by the agencies, and the judicial review of administrative action; (c) It concerns the organization, functions, powers or authority of governmental agencies; (d) It regulates the relationship amongst administrative agencies, and the relationship between their employees and the public; (e) It forbids these agencies from exceeding their powers or acting ultra vires. Note that governmental agencies include those at the Federal, State and Local government levels. You should equally bear in mind that persons who may be damnified by the exercise of governmental power include individuals, corporate entities, and sister governmental agencies.
You need to know that the ambit of administrative law is quite wide both in common law and civil law jurisdictions because it extends beyond the traditional areas to civil service law, acquisition and management of government property, public works, etc. However, the discussion of the latter together with the former will make the subject of administrative law unduly unwieldy. Thus, since they equally belong to the realm of public administration, it is assumed that they should primarily concern political scientists instead of lawyers. As Bernard Schwartz notes, administrative law answers the following three questions: (a) What powers may be vested in administrative law? b) What are the limits of those powers? (c) What are the ways in which agencies are kept within those limits? 10 9 Foulke’s Administrative Law 1 (London: Butterworths, 6th Edition, 1986). 17 LAW 443 ADMINISTRATIVE LAW I It is, therefore, essential for us to avoid deploring our resources into studying an area that is not the appropriate province of administrative law. SELF ASSESSMENT EXERCISE 2 1. 4. 0 Attempt a definition of Administrative law. CONCLUSION In the beginning, Professor A. V. Dicey had declared administrative law to be foreign to the British constitution, and incompatible with the rule of law, common law and constitutional liberty.
Despite the influence he wielded, his theory has failed to stand the test of time. This is manifested in the fact that administrative law has become a recognized and independent course of study amongst researchers, and a decisive component in the effective governance of States around the world. Since Nigeria got its independence in 1960, administrative law has grown by leaps and bounds especially with the government’s involvement in, or even monopolization of, certain activities that were traditionally the usual domain of private individuals and corporate entities. On this score, it is important to note that, by virtue of S. 5, the CFRN 1999 gives a pride of place to administrative law.
We can conclude by saying that despite the many definitions of administrative law, its basic minimal attribute is that it governs or regulates the powers of administrative agencies, the procedures for exercising such powers and the remedies available to victims of such exercise. 5. 0 SUMMARY In this Unit, we considered the historical background and development of administrative law. This took us to the legal systems of the UK, the US and Nigeria. We also examined its nature, features and various definitions. We shall build on the knowledge acquired here in the subsequent Units of this Module. 6. 0 TUTOR-MARKED ASSIGNMENT 1. In contemporary modern State, administrative law is non-existent. Discuss. 10
Schwartz, supra note, p. 2. 18 LAW 443 ADMINISTRATIVE LAW I 2. Evaluate the features of administrative law in Nigeria. 7. 0 REFERENCES/FURTHER READINGS 1. 2. 3. 4. 5. 6. 7. Bernard Schwartz, Administrative Law (Toronto: Little, Brown & Co. , 1976). David Scott & Alexandra Felix, Principles of Administrative Law (Great Britain: Cavendish Publishing Ltd, 1997). Foulke’s Administrative Law (London: Butterworths, 6th Edition, 1986). H. W. R. Wade, Administrative Law (Oxford: Clarendon Press, 3rd Edition, 1971). Kenneth Culp Davis, Administrative Law and Government (Minnesota: West Publishing Co. , 2nd Edition, 1975). Stephen G. Breyer & Richard B.
Stewart, Administrative Law and Regulatory Policy (Toronto: Little, Brown and Company, 1979). William Wade & Christopher Forsyth, Administrative Law (Oxford, UK: Clarendon Press, 1994). 19 LAW 443 ADMINISTRATIVE LAW I UNIT 2 CONTENTS 1. 0 2. 0 3. 0 ADMINISTRATIVE LAW V. CONSTITUTIONAL LAW 4. 0 5. 0 6. 0 7. 0 1. 0 Introduction Objectives Main Content 3. 1 Characteristics of Administrative Law 3. 2 Characteristics of Constitutional Law 3. 3 Similarities between Administrative Law and Constitutional Law 3. 4 Contrasts between Administrative Law and Constitutional Law Conclusion Summary Tutor-Marked Assignment References/Further Readings INTRODUCTION
For a long time the similarity between constitutional law and administrative law had led to confusion between both because the latter was, until very recently, treated as an appendage of or annexure to the former. One of the reasons therefor is that the two were fused for a long time because English scholars such as Austin and Maitland hesitated to see administrative law as a body of law distinct from constitutional law. Also A. V. Dicey’s denial of the existence of administrative law in the UK in his exposition on the rule of law worsened the non-recognition of administrative law as an autonomous course of study. Moreover, this blurred relationship between administrative law and constitutional law was not helped by the fact that the UK operates an unwritten constitution. 1 Thus, it was usual for textbooks on constitutional law and administrative law to contain much of constitutional law and little of administrative law. However, with the recognition of administrative law as an independent course of study, the situation has since improved as we now find books that are exclusively devoted to administrative law and, more importantly, administrative law is no longer tied to the apron string of constitutional law. B. O Iluyomade & B. U. Eka, Cases and Materials on Administrative Law 4 (Ibadan: Obafemi Awolowo University Press Limited, 1992). 20 11 LAW 443 ADMINISTRATIVE LAW I 2. 0 OBJECTIVES At the close of our study of this Unit, you shall be able to: • • 3. 0 3. Compare administrative law with constitutional law; Contrast administrative law with constitutional law. MAIN CONTENT Characteristics of Administrative Law There are certain characteristics which stand administrative law out. Some of them are itemized below: (a) Administrative law is the law that regulates the activities of administrative agencies; (b) It deals with the power of agencies to exercise legislative, executive, judicial and quasi-judicial functions and the procedures for so doing; (c) It concerns itself with providing remedies for persons who are victimized by administrative misuse or abuse of power; (d) Administrative law acts as government image-maker.
This is because the rules, regulations, byelaws, policies, etc, that administrative agencies make and implement are either to the benefit or detriment of most people on daily basis. It is important to note that the only contact such people may have with governmental institutions are through the medium of administrative agencies; (e) It relates to the delegation of power and delegated legislation. 3. 2 Characteristics of Constitutional Law In contradistinction to administrative law, constitutional law is the branch of public law that relates to, as the name implies, the constitution. The Constitution is the supreme document enacted to be a working document for governance. Some of its features are as follows: 21 LAW 443 ADMINISTRATIVE LAW I a) Constitutional law regulates the relationship amongst the three arms of government, that is, the legislature, the executive and the judiciary; (b) It distributes governmental power amongst the three arms; (c) It codifies and protects the fundamental rights of citizens; (d) It operates at the level of generality. Most people cannot really understand what it means to have a constitution because they do not really have any contact with it often. SELF ASSESSMENT EXERCISE 1 1. What are the characteristics of administrative law? 2. What are the characteristics of constitutional law? 3. 3 Similarities between Administrative Law and Constitutional Law Administrative law and constitutional law are of common public law ancestry. They are both about power and accountability – power of legislation and the accountability of those vested with the authority of enactment and enforcement.
Administrative law and constitutional law border on the distribution and exercise of power within the State, and the relationship between the State and the individual. 12 Also, both operate with statutes, case-law, principles, rules, maxims. Similarly, the implementation of both administrative law and constitutional law is made possible by the same governmental/administrative structures. 13 They differ from private law courses such as contract, trust, land law, etc, to the extent that the latter relate to relationships between private individuals. 3. 4 Contrasts between Administrative Law and Constitutional Law Nonetheless, some differences are still identifiable between the two.
Constitutional law is the law relating to the Constitution of a State, distribution of powers amongst the arms of government, and human rights for its citizens. In the Nigerian context, the Timothy Fwa Yerima, “Nature, Functions & Scope of Administrative Law: An Overview” in T. F. Yerima & B. Abegunde (Ed. ), Essays on Administrative Law in Nigeria 8 (Ado Ekiti: Petoa Educational Publishers, 2006). 13 Ese Malemi, Administrative Law (Lagos: Princeton Publishing Company, 3rd Edition, 2008). 22 12 LAW 443 ADMINISTRATIVE LAW I course of study would include the study of powers of the Federation, Fundamental Objectives and Directive Principles of State Policy, Citizenship, Fundamental Rights provisions, Law-making Procedures, Revenue Allocation, and the powers of the three arms of government.
The constitution is the organic law of the State and, adapting Kelsen’s jurisprudential approach to law, it appropriates to the Grundnorm in the hierarchy of norms in the country. The functions of the Constitution have been aptly captured by Sir Udo Udoma in the case of Nafiu Rabiu v. State 14 as follows: “The function of the constitution is to establish a framework and principles of government, broad and general in terms, intended to apply to the varying conditions which the development of our several communities must involve. ” Similarly, Alex Carrol said that: Constitutional law deals with the legal foundations of the institutional hierarchy through which the State is governed.
It concentrates in particular on the rules, both legal and conventional, which explain and regulate the composition, powers, immunities, procedures of, and relationship between, those institutions…. 15 So, what features typical of constitution can we extract from the above? They are provided below: (a) Constitution is the organic, supreme law or the grundnorm of a State; (b) All laws inconsistent with it are to the extent of their inconsistency void; (c) It regulates power distribution amongst the three arms of government; (d) It governs the relationship between citizens on the one hand and governmental agents on the other, and amongst governmental organs inter se; (e) It stipulates the rights and duties of citizens; and (f) It constitutes a code of governance in the hands of government officials.
On the other hand, administrative law is law relating to the power and the exercise of such power of an administrative agency and which controls the exercise of governmental powers through judicial reviews. In the words of Stanley De Smith & Rodney Brazier: 14 15  2 NCLR 293 at 326. Yerima, supra note 12, p. 12. 23 LAW 443 ADMINISTRATIVE LAW I Administrative law is the branch of public law dealing with the actual operation of government, administrative process. When the constitutional process has resulted in a duly elected government which has determined its policies and enacted any necessary primary legislation, the administrative process begins. It concerns the day-to-day administration of the country at central and local levels and putting into practice constitutionally decided policies. 16 From all that we have said so far, we can deduce that administrative law is about so many things including the following: (a) Administrative law relates to the power and procedures of administrative agencies and the remedies available to persons who may be aggrieved by the conduct of these agencies; It concerns the organization, functions, powers or authority of governmental agencies; Delegation of powers and delegated legislation; Exercise of power and discretion in public administration; It regulates the relationship amongst administrative agencies, and the relationship between their employees and the public; and Administrative adjudication (b) (c) (d) (e) (f) SELF ASSESMENT EXERCISE 2 1. 2. 4. 0 What are the similarities between administrative law and constitutional law? Discuss the distinction between administrative law and constitutional law.
CONCLUSION The accident of A. V. Dicey’s erroneous appreciation of events or things led largely to the non-recognition of administrative law. The effect of this was that whatever administrative issues that could not be classified under constitutional law were treated as an adjunct of constitutional law. Thus, the waters of constitutional law have always overrun that of administrative law. In contemporary times, however, administrative law has emerged and so recognized as a distinct field of study with the success or the survival of modern administration attributed largely to the activities of administrative agencies. So, in the fullness of 16
Stanley De Smith & Rodney Brazier, Constitutional and Administrative Law 533 (United Kingdom: Penguin Books, 6th Edition, 1989). 24 LAW 443 ADMINISTRATIVE LAW I time, areas of similarities and differences between administrative law and constitutional law have been identified and duly recognized. Regarding similarities, administrative law and constitutional law derive from the same public law family, and they both border on the distribution and exercise of power within the State, and the relationship between the State and the individual. As for the differences, note the differences including the one relating to the fact that while administrative law operates at the grassroots level, the constitution operates at the level of generalities. 5. 0 Summary
In this Unit, we considered the features of both administrative law and constitutional law before we attempted a comparison and a contrast between them. In our discourse, we now know that, notwithstanding their similarities, they are, afterall, separate courses of study. 6. 0 TUTOR-MARKED ASSIGNMENT 1. Examine the statement that administrative law has always been an appendage of constitutional law till date. 7. 0 1. 2. 3. 4. REFERENCES/FURTHER READINGS Ese Malemi, Administrative Law (Lagos: Princeton Publishing Company, 3rd Edition, 2008). B. O Iluyomade & B. U. Eka, Cases and Materials on Administrative Law (Ibadan: Obafemi Awolowo University Press Limited, 1992).
Stanley De Smith & Rodney Brazier, Constitutional and Administrative Law (United Kingdom: Penguin Books, 6th Edition, 1989). Timothy Fwa Yerima, “Nature, Functions & Scope of Administrative Law: An Overview” in T. F. Yerima & B. Abegunde (Ed. ), Essays on Administrative Law in Nigeria (Ado Ekiti: Petoa Educational Publishers, 2006). 25 LAW 443 ADMINISTRATIVE LAW I UNIT 3 ADMINISTRATIVE AGENCIES AND FUNCTIONS CONTENTS 1. 0 2. 0 3. 0 Introduction Objectives Main Content 3. 1 Definition of Administrative Agencies 3. 2 Powers and Functions of some Federal Administrative Agencies Conclusion Summary Tutor-Marked Assignment References/Further Readings INTRODUCTION 4. 0 5. 0 6. 0 7. 0 1. 0
In the Units we have dealt with so far in this Module, we have freely referred to ‘administrative agencies. ’ What is an administrative agency? An administrative agency is a governmental authority in which the full paraphernalia of power – that is, legislative, executive, judicial, and quasi-judicial powers – resides. With governments the world over venturing into socio-economic and political activities that were hitherto mostly handled by individuals, there has been the need to create myriad of governmental agencies charged with the responsibility of implementing the projects and programmes of government. The number of these agencies and the powers available to them reflect the power structure in a Federal Nigeria.
You should note that the power structure is discussed by reference to the law-making body of each tier of government. Thus, regarding the Federal Government and the State Government, we will refer to the National Assembly and the State House of Assembly respectively. Under the CFRN 1999, the National Assembly is vested with exclusive legislative authority over matters enumerated in the Exclusive List. However, both the National Assembly and the State House of Assembly are empowered to make laws in respect of the Concurrent List. You should note that under the doctrine of covering the field, the State House of Assembly is incompetent to legislate in an area in connection with which the National Assembly has already made legislative provisions.
It is trite that in delegating power to an administrative agency via the enactment of a 26 LAW 443 ADMINISTRATIVE LAW I Statute or Law, the legislature equally creates or authorizes the creation of these agencies to carry out the objects and purposes of the enabling instrument. Therefore, because more powers are available to the National Assembly, there are more Federal agencies created than State agencies. OBJECTIVES At the end of this Unit, you will be able to: • • • 3. 0 3. 1 Define and describe an administrative agency. Differentiate between constitutionalized agencies and statutory agencies. Appraise the powers available to Federal and State agencies. MAIN CONTENT Definition of Administrative Agencies
According to the US Federal Administrative Procedure Act 1946, an administrative “agency means each authority … of the Government of the United States other than Congress, the courts. ” 17 In other words, an administrative agency is constituted by the executive branch of government. You should note that the executive branch of government may be called an administrative agency because it implements the laws enacted by the legislature. Also, the executive arm may be so-called by virtue of the fact that there are constitutional provisions which expressly delegate power to it. Again, when an enabling Statute delegates power to an administrative agency, it is the executive that, in fact, inaugurates or empanels the administrative agency. S. 5 of the CFRN 1999 establishes the executive arm of government.
It is pursuant to this provision that administrative agencies come under the umbrella of the executive branch. These agencies are to be found at the Federal, State and local government levels. Kenneth Culp Davis has offered a more descriptive or functional definition of an administrative agency. According to him, an administrative agency is a governmental authority, other than a court and a legislative body, which affects the rights of private parties through either adjudication, rule-making, investigating, prosecuting, S. 2(a), 5 U. S. C. s. 551. See also Bernard Schwartz Administrative Law (Toronto: Little, Brown & Co. , 1976). 27 17 LAW 443 ADMINISTRATIVE LAW I negotiating, settling, or informally acting. 8 You should note that an administrative agency may be called by different names such as a commission, board, authority, bureau, office, officer, administrator, department, corporation, administration, division, or agency. 19 Also worthy of note is the fact that for agencies that are created by the constitution or whose existence is constitutionally recognized, their powers and functions are to be found in the Constitution itself. On the other hand, the powers or functions of statutory agencies are contained in the enabling Acts. It is this cluster of powers and functions – with which they affect the private rights and obligations -that make administrative agencies tick. Administrative agencies are ubiquitous in the sense that they are found everywhere – at the Federal, State, and local government levels.
And administrative agencies appear to be jacks-of-all trade – doing those things that all the other arms or branches of government can do. For example, they are, like the legislature, authorized to prescribe rules and regulations; to, like the prosecutors and judiciary, empowered to determine whether or not the law has been violated and to impose penalty as appropriate; and to, like the President of the country, confer privileges on persons or institutions they deem fit. 3. 2 Powers and Functions of some Federal Administrative Agencies As we have earlier observed, agencies could be created either by the Constitution or by Statute. In the former, the Constitution directly recognizes or creates some agencies and vest in them appropriate powers and functions.
As far as the latter is concerned, the National Assembly creates or authorizes the creation of agencies when it delegates power to an administrative agency. Recall that since the National Assembly has the exclusive capacity to legislate on the 68 items contained in the Exclusive List of the CFRN 1999, it is potentially the greatest creator of administrative agencies. Note that the status of the agencies created by the CFRN and by Acts of the National Assembly differs. Such difference is a direct reflection of the discrepancy between the constitution and a statute. We will now discuss some constitutionalized agencies and statutory agencies. 18 19 Kenneth Culp Davis 6 (Minnesota: West Publishing Co. 2nd Edition, 1975). Davis, Ibid, p. 6. 28 LAW 443 ADMINISTRATIVE LAW I 3. 2. 1 Constitutionalized Agencies S. 153(1) of the CFRN directly creates many agencies including, inter alia, the Code of Conduct Bureau, Federal Character Commission, Federal Civil Service Commission, Federal Judicial Service Commission, and the Independent National Electoral Commission. By virtue of S. 153(2), the composition and powers or functions of these bodies are contained in Part I of the Third Schedule to the CFRN. We shall look at them seriatim. (a) Code of Conduct Bureau The Code of Conduct Bureau, which consists of a Chairman and nine other members, is empowered in Paragraph 3 o: (a) receive assets declarations by public officers; (b) examine the declarations in accordance with the Code of Conduct or any law; (c) retain custody of such declarations and make them available for inspection by any citizen of Nigeria on such terms and conditions as the National Assembly may prescribe; (d) ensure compliance with and, where appropriate, enforce the provisions of the Code of Conduct or any law relating thereto; (e) receive complaints about non-compliance with or breach of the provisions of the Code of Conduct or any law in relation thereto, investigate the complaint and, where appropriate, refer such matters to the Code of Conduct Tribunal; (f) appoint, promote, dismiss and exercise disciplinary control over the staff of the Code of Conduct Bureau in accordance with the provisions of an Act of the National Assembly enacted in that behalf; and (g) carry out such other functions as may be conferred upon it by the National Assembly. You should note that the nucleus of the duties of the bureau is the prevention and control of corruption amongst public officers. These officers are required to periodically declare their assets so that any accretion to their wealth can be justified or queried. The bureau does this against the background of the Code of Conduct for Public Officers (Part I, Fifth Schedule). Any violation is forwarded to the Code of Conduct Tribunal (Part I, Fifth Schedule) for necessary action. 29 LAW 443 ADMINISTRATIVE LAW I b) Federal Character Commission Set up by Paragraph 7 of the Schedule, the Federal Character Commission in Paragraph 8 has power to: (a) work out an equitable formula subject to the approval of the National Assembly for the distribution of all cadres of posts in the public service of the Federation and of the States, the armed forces of the Federation, the Nigeria Police Force and other government security agencies, government owned companies and parastatals of States; promote, monitor and enforce compliance with the principles of proportional (b) sharing of all bureaucratic, economic, media, and political posts at all levels of government; (c) take such legal measures, including the prosecution of the head or staff of any Ministry or government body or agency which fails to comply with any federal character principle or formula prescribed or adopted by the Commission; and (d) carry out such other functions as may be conferred upon it by an Act of the National Assembly. For federal character-related comments, see Module 2, Unit 3. (c) Federal Judicial Service Commission Paragraph 12 of the Schedule establishes the Commission.
It has power to: (a) advise the National Judicial Council in nominating persons for the appointment of the Chief Justice of Nigeria (CJN), a Justice of the Supreme Court, the President of the Court of Appeal, the Chief Judge of the Federal High Court, a Judge of the Federal High Court, and the Chairman and members of the Code of Conduct Tribunal; (b) recommend to the National Judicial Council, the removal from office of the judicial officers specified in sub-paragraph (a) of this paragraph; and (c) appoint, dismiss and exercise disciplinary control over the Chief Registrars and Deputy Chief Registrars of the Supreme Court, the Court of Appeal, the Federal High Court and all other members of the staff of the judicial service of the Federation not otherwise specified in this Constitution and of the Federal Judicial Service Commission (d) Federal Civil Service Commission 30 LAW 443 ADMINISTRATIVE LAW I Paragraph 11 of the Schedule vests in the Commission the power: (a) to appoint persons to offices in the Federal Civil Service; and (b) to dismiss and exercise disciplinary control over persons holding such offices. (e) Independent National Electoral Commission The Independent national Electoral Commission (INEC) is in Paragraph 15 empowered to, inter alia, organize, undertake and supervise all elections to he offices of the President and Vice-President, the Governor and Deputy Governor of a State, and to the membership of the Senate, the House of Representatives and the House of Assembly of each State of the Federation; arrange and conduct the registration of persons qualified to vote and prepare, maintain and revise the register of voters for election purposes. The Commission is also charged with the duty of registering political parties, and monitoring their organization and operation. For a country like Nigeria that is still trying to find its democratic feet, the role of INEC cannot be overemphasized. The country has had the problem of electoral rigging every time elections are held with the latest being the 2007 elections that brought the different regimes at both Federal and States levels to power.
You will recall that one of the reasons for Buhari and Atiku’s seeking judicial invalidation of the election of the late President Yaradua was because of the massive rigging that marked the elections. And Yaradua’s inauguration of the Uwais Panel was born of his desire to put in place a system that would guarantee that every vote counts. SELF ASSESSMENT EXERCISE 1 1. What is the meaning of an administrative agency? 2. Examine the powers and functions of some agencies created by the CFRN. 3. 2. 2 Statutory Agencies In its capacity as the law-making arm of government, the National Assembly has enacted or is deemed to have enacted so many Statutes which authorized the establishment of administrative agencies.
Such Statutes include the Economic and Financial Crimes Commission (EFCC) Act 2004, Independent Corrupt Practices Commission (ICPC) Act 2000, and NDLEA Act of 1989. Note that these statutes respectively established the EFCC, ICPC, and NDLEA. 31 LAW 443 ADMINISTRATIVE LAW I (a) Economic and Financial Crimes Commission (EFCC) This is an anti-corruption, anti-money laundering agency established to combat corruption, money laundering and other financial crimes. It was established by the Federal Government in response to the external stimuli generated by the Financial Action Task Force (FATF) on Money Laundering. FATF had declared Nigeria to be Non-Cooperating Country or Territory (NCCT), that is, a country which inadequately provided against money laundering. Some of the functions of the Commission under S. of the Act includes the investigation of all financial crimes including advance fee fraud, computer credit card fraud, contract scam, etc; the coordination and enforcement of all economic and financial crimes laws and enforcement functions conferred on any other person or authority; and the adoption of measures to identify, trace, freeze, confiscate or seize proceeds derived from terrorist activities, economic and financial crimes-related offences or the properties the value of which corresponds to such proceeds. Additionally, S. 7 of the Act empowers the Commission to cause investigation to be conducted as to whether any person, corporate body or organization has committed an offence under the Act. Moreover, the Commission is empowered to cause investigations to be conducted into the properties of any person if it appears to the Commission that the person’s lifestyle and extent of the properties are not justified by his source of income. In a country like ours where many persons have assets or wealth whose origin they cannot confidently disclose, the relevant provisions of the Act are salutary.
The EFCC appears to have made some modest progress in its task of cleansing our corrupt system as manifested in the number of convictions it has recorded and, most important, the assets it has confiscated or forfeited. However, the EFCC appears not to be making use or good use of S. 7 as it tends to generally believe that its capacity to investigate a corruption allegation is dependent on the willingness of aggrieved members of the public to report to or petition the body. (b) Independent Corrupt Practices Commission (ICPC) The setting up of the ICPC in 2000 was about the first attempt by the country to tame the hydra-headedness of corruption both in high and low places. Under S. of the Act, the Commission has a duty to receive and investigate any report of the conspiracy to 32 LAW 443 ADMINISTRATIVE LAW I commit or attempt the commission of the offence of corruption. As we can notice clearly, the ICPC predated the EFCC. The relationship between the two agencies is that while the ICPC focuses more on corruption generally, the EFCC concerns itself with particular aspects of corruption bordering on financial crimes. There are, however, cases of overlap in their functions. This has generated calls by some individuals for the government to rationalize the two agencies. (c) National Drug Law Enforcement Agency (NDLEA) S. 3 of the NDLEA Act 1989 provides for the functions of the NDLEA.
Some of them are the: • Adoption of measures to eradicate illicit cultivation of narcotic plants and to eliminate illicit demand for narcotic drugs and psychotropic substances with a view to reducing human suffering and eliminating financial incentives for illicit traffic in narcotic drugs and psychotropic substances; Adoption of measures to identify, trace, freeze, confiscate or seize proceeds derived from drug-related offences or property whose value corresponds to such proceeds; and With a view to ascertaining whether any person has involved in offences under the Act or in the proceeds of any such offences, to cause investigations to be conducted into the properties of any person if it appears to the agency that that person’s life style and extent of the properties are not justified by his ostensible source of income, taking such measures that may ensure the elimination and prevention of the root causes of the problems of narcotic drugs and psychotropic substances; • • SELF ASSESSMENT EXERCISE 2 1. Distinguish the powers and functions of the EFCC from that of the ICPC. 4. 0 CONCLUSION Administrative agencies are called by different names by different governments. They equally perform different functions. 33 LAW 443 ADMINISTRATIVE LAW I In Nigeria, there are such agencies directly created or recognized by the CFRN unlike others which are the creation of Acts of the National Assembly.
Some of these agencies are charged with responsibilities critical to the survival of the country. In this regard, the EFCC, the ICPC, and NDLEA are exemplary. Administrative agencies are to be found in all sectors of the economy. In your environment, you should cultivate the habit of identifying such agencies and their functions and powers. 5. 0 SUMMARY In this Unit, we considered the meaning and description of administrative agencies, distinguished between agencies created by the CFRN and those established (or deemed to be established) by Acts of the National Assembly. With this, we close the discussion on administrative agencies and functions. 6. TUTOR-MARKED ASSIGNMENT The status of Agencies created by the CFRN and Acts of the National Assembly is the same. Discuss. 7. 0 REFERENCES/FURTHER READINGS Bernard Schwartz Administrative Law (Toronto: Little, Brown & Co. , 1976). CFRN 1999. Kenneth Culp Davis, Administrative Law and Government (Minnesota: West Publishing Co. , 2nd Edition, 1975). 34 LAW 443 ADMINISTRATIVE LAW I UNIT 4 CLASSIFICATION OF ADMINISTRATIVE POWERS CONTENTS 1. 0 2. 0 3. 0 Introduction Objectives Main Content 3. 1 Problem of Classification 3. 2 Importance of Classification Conclusion Summary Tutor-Marked Assignment References/Further Readings INTRODUCTION 4. 0 5. 0 6. 0 7. 0 1. 0 In Module 3, we identified many governmental agencies.
These agencies perform all the functions constitutionally assigned or allocated to the three arms of government to the benefit or detriment of persons within their jurisdictions. Persons to the detriment of whom power has been exercised would ordinarily need to be satisfied of the legality of such exercise. Otherwise, they are entitled to invoke the judicial process and, possibly, claim damages or compensation from agencies that have exceeded their authorities or acted ultra vires. In other words, victims of administrative power – persons aggrieved by the exercise of administrative power – would be able to seek judicial redress. Therefore, it is usual to classify functions of administrative agencies as legislative or rule-making, executive or administrative, judicial or quasi-judicial.
However, because of the glut of administrative agencies with different powers, there is often the difficulty in classifying their acts. Nevertheless, you should not gloss over the essence of such classification. 2. 0 OBJECTIVES When we end this Unit, you will be able to: • • Assess the complexities of classifying administrative power. Analyze the consequences of classifying administrative powers one way or another. 35 LAW 443 ADMINISTRATIVE LAW I 3. 0 MAIN CONTENT 3. 1 Problem of Classification As we will discuss later, the doctrine of separation of power does not operate in relation to administrative law. There is, however, the tendency to classify administrative functions into legislative, executive and judiciary.
This is because the legal consequences attached to an administrative act often depend on the type of function being performed. In other words, the weight attached to one administrative power may not be the same as that attached to another administrative power. But this has led to a lot of confusion especially as different classifications have been conferred with different meanings. Also, the courts have contributed to this confusion by their attributing inconsistent meanings to the functions and it is often difficult to say why a particular function has been classified in a particular way. The various attempts at definitions often lead to more confusion.
In its 1932 Report, the British Committee on Ministers’ Powers attempted defining and distinguishing these powers as follows: (a) Legislative Powers Legislation is the process of formulating a general rule of conduct, without reference to particular cases, and usually operating in the future. (b) Executive Powers Execution is the process of performing particular acts, of issuing particular orders, or (as usually) of making decisions which apply general rules to particular cases. (c) Judicial Powers A true judicial decision presupposes an existing dispute between two or more parties and then involves four prerequisites: (1) the presentation (not necessarily orally) of their case by the parties; (2) the ascertainment of any disputed facts by evidence adduced by the parties, often with the assistance of argument on that evidence; 36 LAW 443 ADMINISTRATIVE LAW I 3) the submission of argument on any disputed question of law; (4) a decision which disposes of the whole matter by a finding upon disputed facts and an application of the law to the facts so found, including where required a ruling upon any disputed question of law (d) Quasi-Jud