O.O.

RAPHAEL’S NOTES – ADMINISTRATIVE LAW—

 NOTE: continuous reading is advice for proper comprehension of the topics in this note.
 The letters QST means questions, i.e. possible questions that may arise from the topics
discussed.

THE NATURE OF ADMINISTRATIVE LAW

Administrative law is a branch of law, under the public law sector. Unlike constitutional law that deals
with the structure of the various organs of the state; it deals with the functions of the organs of the
state. Administrative law does not only govern the functions, operations and creations of government
agencies, but also defines the relationship between individuals and the state. Hence we say
administrative law is based on the legal maxim of the Rule of law called “ubi jus ibi remedium”,
meaning, wherever there is right, there is remedy, in other words, there are remedies whenever
individual rights are infringed. Administrative law is limited to the law which limits the powers of
administrative authorities while exercising governmental powers.

The importance of administrative law in contemporary society cannot be overemphasized. The whole
essence of administrative law is to ensure that the discretion coffered by statute is controlled.
Administrative law controls the organs of the state and the exercise of powers. It postulates that powers
should not be concentrated in one hand, hence separation of powers. It is the law that deals with
government in motion. This is because, government is not static, and as constitutional law lays the
framework of governance, i.e. government at rest, administrative law on the other hand drives it, i.e.
Government in motion. The executive is vested with powers to legislate and use its discretionary
powers, and administrative agencies are given authorities. When powers are given, there arises a need
to regulate it. Hence the court becomes a major concern of the administrative law, i.e. the role of the
court in providing rulings on the legality of the exercise of public powers.

The Hindrance to the Development of Administrative Law

The main problem faced with understanding the exact scope and nature of administrative law is due to
the fact that several factors have affected the development of administrative law, specifically definitive
factors on its meaning or what it entails. This can be related to the failure to distinguish administrative
law from constitutional law. Both administrative law and constitutional law are under the realm of
public law. All this is coupled with the fact that until recent times, administrative law had been faced
with the problem of recognition.

 The problem of recognition can be traceable to the lack of appreciation of the distinction
between government as a principle organ of the state, and administration as an operating arm
of government. We get to perceive a great deal of ignorance that affected the growth of
administrative law due to the dismal of its existence and distinction from constitutional law. This
in turn can be related to the influence of legal intellects and exponents of jurisprudence. In
retrospect, prominent figures such as Lord Hewart who dismissed the term administrative law,
of which he regarded as continental jargons, and Professor Albert Venn Dicey in his book “law of
the constitution” 1885 rejected the whole concept of administrative law and that the enormous
statutory powers granted to executives and administrative authorities as well as the control

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over them were disregarded as not being able to form a separate branch of law. He famously
denied the existence of administrative law further inferring that the words administrative law
are unknown to English judges and are in themselves hardly intelligible without further
explanation. He also went further to deny the possibility of those country that followed the
English law.
In Dicey’s exposition on the concept of the rule of law, his attack on the system of
administrative law is impracticable. Dicey’s reluctance to accept the possibility of administrative
law can be partially explained by the fact that the only system of administrative law with which
he was familiar was the droit administratif of France.
Dicey arguments were mainly based on the rights and privileges of public servants or officials of
the state which is different from that of the citizens, and secondly on the criticism of
administrative discretion. According to him, both government officials and private citizens were
to be subject to the ordinary law of the land, and that the discretionary powers given to
government departments and public officials are contrary to the rule of law. Hence A.V. Dicey
was of the expression that there is no rule of law in France, and this was due to the practice of
“Droit Administratif”.
However, ruling out the whole system of administrative law subject to the French system of
Droit Administratif was impracticable as stated supra. For one, he failed to put into cognizance
the fact that total absence of discretionary powers is not possible in an administrative age. If
giving discretionary powers to government departments and public officers is against the rule of
law, then the rule of law cannot be applicable in any modern state today. This is due to the fact
that, with everything said and done, a certain level of discretion is necessary for an effective
administration of a society. If discretion is opposed to the rule of law then a final Court such as
our Supreme Court which has certain discretionary powers with regards to cases would
contravene the rule of law because it possesses this power and can exercise it as it sees fit. The
powers to adjourn a case, to condone delay, to award costs are discretionary powers and may
be abused like all discretionary powers. It suffices to say at this point that the ultimate
guarantee against abuse of discretionary powers lies in the legal measures against such abuse
and not the exclusion of administrative discretion at the instance of the government.

At present, the problem of recognition has now been laid to rest. Insight can also be drawn from Lord
Reid’s judgment in the case of Ridge v Baldwin 1964, the decision by the House of Lords which extended
to the realm of administrative decision making stated “we do not have a developed system of
administrative law, perhaps until recent times, we did not need it”. The deniability of the existence of
administrative law became impracticable and difficult; this is due to the fact that during the course of
time, the functions of government have increased. Scholars like A.V. Dicey were able to write against the
existence and acceptance of administrative law because the functions of government were limited in
the 1800s. The modern state with an increase in population and technological advancement has
acquired many more functions from regulatory to service providing functions and this of course entails
more concentration of administrative functions on various administrative bodies. The growing
involvement of government in said activities cannot but increases the importance of administrative law
in General. A.V. Dicey in the course of time consequently abandoned his view as a result of subsequent

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development involving the modern state. The evolution of “modern state public administration” led to
the evolution and growth of modern administrative law. The whole essence of administration law is
“control”, it applies to statutory and domestic bodies as expounded by Lord Denning in the case of
Breen v. Amalgamated Engineering Union where he stated thus “it can truly now be said that we have a
developed system of administrative law”.

Definition of administrative law

We are faced with diverse legal and political opinions with regards to the definition of administrative
law. Some consider administrative law to relate to the control of administrative functions, the purpose
of which is protecting individual rights. Other place more emphasis on the effectiveness of performing
administrative function. While to some, it is ensuring governmental accountability.

According to Foulkes in his book “administrative law”, defined administrative law as the law relating to
public administration. Professor wade defined administrative law as the law concerned with the control
of the powers of administrative authorities. According to Austin, while constitutional law determines
what person or class of persons bore sovereign powers; administrative law determines the modes in
which the sovereign powers are exercised. Davis defines administrative law as the law relating to the
procedures administrative agencies, i.e. the judicial review of administrative actions.

Flowing from the above, it suffices to say that administrative law is the law that is concerned with the
way in which power is transferred from legislative bodies to administrative bodies, how these powers
are used by the administrative agencies to whom powers is conferred, and the judicial review of the
administrative actions taken by the administrative agencies.

Today the relevance of administrative law as a distinct subject has been firmly established in the legal
sphere.

The scope of administrative law

Scope here basically means what administrative law encompasses; i.e. the concentration of the concept
of administrative law, where it touches and the body/organs concerned.

Flowing from the above, Administrative law is concerned with the functions, powers and duties of
administrative authorities. Administrative law stretches to areas of the judicature I.e. judicial review on
the exercise of administrative functions by administrative bodies/agencies. It places emphasis on
procedures for formal adjudication based on the principle of the rule of law that supports natural justice
and for rule making. With the conferment of wide discretionary powers on administrative agencies, it
becomes paramount that the extent to which this discretion is exercised is checked to protect individual
right and maintain or uphold the rule of law. Administrative law specifies the liabilities of those
exercising administrative functions as well as the rights of private individuals in relation to
administrative agencies, and also provides remedies for aggrieved persons and even the legal protection
which might be available to those administrative bodies exercising administrative functions.
QST 1: as an administrative law student, what can you say is the main problem faced with understanding the exact scope
and nature of administrative law.
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DISCRETIONARY POWERS AND THE EXTRAVAGANT VERSION OF THE RULE OF LAW

What this aspect entails is basically with regards to two terms. The first being “rule”, i.e. the absolution
of the rules and the second being discretion, i.e. the discretionary powers to act on the rules.

The conflict between rule and discretion is premised on the term or concept of the “rule of the law” as
oppose to the “rule of man”. How far should it be the mission of the Rule of Law to eliminate or reduce
the amount of discretion in the way a society is governed?, Some jurists like Dicey (1885) and to a lesser
extent Hayek (1944) insist that official discretion is inherently antithetical to the Rule of Law. Others, like
Davis (1969) condemn this as an extravagant position, arguing that discretion is ineliminable in the
modern administrative state; the rule of the Rule of Law is not to eliminate discretion, but to ensure that
it is properly framed and authorized.

Exponents of the extravagant version of the rule of law believe that it is possible to have a system of
government that is totally rule based. According to Aristotle who formulated the question whether it
was better to be ruled by the best man or the best law, the rule of law is preferable to that of any
individual. The learned justice obaseki said in the case of Odi v Osafile that “the administration of justice
involves the administration of the purest principles of laws, man is fallible, so also are the thoughts of
man”.

Another exposition of this position of law is seen In Dicey’s concept of the rule of law, which implies the
absence of the arbitrary power on the part of the government and equality of all persons before the
eyes of the law, he postulated three chief principles of the rule of law; the first which state the
supremacy of the law. Explaining the first principle, Dicey says that the rule of law means the absolute
supremacy or predominance of regular law as opposed to the influence of arbitrary power or
discretionary power. It also means that no one should be punished except for breach of law, a principle
of which was held in the case of Aoko v fagbemi where section 21(10) of the constitution of the federal
republic of Nigeria 1960 states that no person shall be convicted of a criminal offence, unless that
offence is defined and the penalty therefore is prescribed in a written law, this position is also
strengthened by the statutory provision of section 36(12) CFRN 1999. In the case of Tanko v State, the
Supreme Court held that the constitution is supreme; it is by it that the validity of any laws, rule or
enactment for governing any part of the country is tested. Hence the validity of all powers, be it
legislative, executive or judiciary must ultimately be trace or predicated on the constitution, where any
of them is inconsistent with the constitution, it is invalid to the extent of such inconsistency.

Flowing from the above, if any of the state laws or subsidiary legislation is inconsistent with the
provisions of the constitution, the constitution shall prevail and that state law to the extent of the
inconsistency is void. This was held in the case of achu v csc stating that the provision of an ordinary
statute would not render nugatory relevant provisions of the constitution. Also with regards to the
provisions of the constitution, no provision is inferior to the other; a fortiori no provision is superior to
the other. The case of Oshiomole v FGN buttresses this point where it was held that all provisions of the
constitution are of equal strength.

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The second principle as posited by Dicey entails equality before the law. No man was to be considered
above the law; whatever his rank, was to be subject to the ordinary law of the land and the jurisdiction
of the court. As it was stated in the case of Ezechukwu v Onwuka, the law is no respecter of persons. It
was as a result of this second principle of the rule of law that Dicey criticized the French system of droit
administratif which gave special rights and privileges to public officials as against private citizens.
According to him, both government officials and private citizens were to be subject to the ordinary law
of the land.

The third principle as expounded by Dicey is that the principles of the constitution (e.g. right to liberty,
right to public meeting etc.) are the results of judicial decisions in determining the rights of private
persons in particular cases brought before the court. The constitution is not the source but the
consequence of the right of the individuals. Thus, Dicey emphasized the role of the Courts as guarantors
of liberty and suggested that it would be secured more adequately if they were enforceable through the
Courts of law than by mere declaration of those rights in a document, as in the latter case, they can be
ignored, curtailed or trampled upon, to this extent as seen in the case of Governor of ebonyi state v
usuama, the court held that where the party becomes aware that an infringement of the law constitutes
an infraction against his interest and rights, he is entitled to avail himself of all remedies provided by the
law, and to seek remedy from the court.

Exponents like Dicey were against the idea of discretionary power, according to him; the concept of
discretion is against the rule of law. However it has now become clear that a certain level of discretion is
necessary for an effective administration of a society today. And as expounded by Davis who was against
the position of the extravagant version of the rule of law (as stated supra), rather than argue about the
existence of discretionary powers, we should be concerned as to how to structure and confine these
discretionary powers within laid down boundaries.

It suffices to say that ultimately, Dicey objected to the use of wide discretionary powers, and his dislike
of discretionary power was due to the fear of abuse, and the belief that the judicial function consists in
applying the settled principles of law and not to exercise the discretionary power. While Dicey’s concept
of the rule of law had its own merits, it is important to note that total absence of discretionary power is
not possible at this administrative age. Most government has rejected the sentimental and philosophical
yearnings of the extravagant version of the rule of law. If giving discretionary powers to government
departments and public officers is against the rule of law, then the rule of law cannot be applicable in
any modern state today. This is due to the fact that, with everything said and done, a certain level of
discretion is necessary for an effective administration of a society today. No government has ever
existed with complete absence of discretionary powers; the evolution of every government of every
society has been based on rules and discretion. In the regulation and administration of any society, and
even in the administration of justice, No government has ever been a government of law and not of men
in the absence of all discretionary powers. Every system of administration of justice has always had a
large measure of discretionary powers. According to Dean Pounds, no legal system however minute or
detailed in its body of rules is wholly by rules without any recourse to the will of the judge and his
personal sense of what should be done to achieve justice in the case before him. According to craige,

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discretion is vital tool in society, aiding the individualization of justice, and no society has existed in
which discretion was absent. Davis went further to point out that proponents of the extravagant version
of the rule of law were postulating an idea that has never, and will never exist in human society.
According to Davis, the ways in which discretionary powers can be curtailed entails thus:

The first is to eliminate unnecessary discretionary powers or confine it within its boundaries. The second
is to ensure that it is structured. While the confinement of discretionary powers seeks to keep it within
its boundaries, structuring discretion is aimed at controlling the way in which same is exercised within
those boundaries. According to Davis, open policy statements and rules, open finding and open reasons
were ways to achieve this.

Aside from structuring of discretionary powers, discretionary powers should also be checked, and this
can be done by supervision, administrative appeals and judicial review.

The reason for the continuous growth of discretionary powers

 It suffices to say at this point that it can be said that the reason for the continued growth of
discretion can be attributed to the fact that government is likely to go on taking tasks, the
execution of which no one is able to prepare advance rules, and when this becomes the case,
discretion no matter how minute becomes unavoidable. Furthermore, treating each case in its
own merits can be said to be crucial in certain instances, thus at the instance where we have the
power to formulate rules, discretion is often desirable to accomplished this.

QST 2: proponents of the extravagant version of the rule of law were postulating an idea that has never, and
will never exist in human society. Do you agree with this assertion?. With the aid of decided cases discuss.

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SEPARATION OF POWERS

It is now ideal that every democratic government operating the principle of the rule of Law must consist
of three main organ of government, i.e. the legislature, the executive and the judiciary. This brings us to
the doctrine of separation of powers. The doctrine of separation of powers is predicated on the premise
that when all governmental and judicial powers are immersed in the hands of a single individual or
body, it’ll lead to abuse of those powers.

According to John Locke, who gave the concept a more refined treatment, argued that the legislative
and the executive powers were conceptually different and that it was necessary to separate them in
government institutions.

The modern version of the doctrine of separation of powers is hinged on the teaching of the French
philosopher, Baron De Montesquieu on the “spirit of the law” 1748. According him, there is danger
inherent in uniting the executive and legislative powers in the same person; and if the judiciary is not
separated from the executive and legislative organ there is no liberty. There would be an end of
everything if the same person or body were to exercise all three governmental powers. The supreme
court of the united state in the case of killbourn v Thompson declared that all powers of government are
divided into executive, judicial and legislative, and went further to prohibit one from encroaching on the
powers codified to the other.

William Blackston, an English jurist was of similar view, and according to him where there is a fusion of
all three powers in one individual, there can be no liberty.

It is also noteworthy that the doctrine of separation of powers has been met with critiques, one of
which was by Mcllwain, who classified it as an enfeebling doctrine to the true teachings of constitutional
history.

However, it has now been accepted that a complete system of separation of power in the context of
modern society is near impossible, and it is questionable whether any system of government has ever
attained such an end.

It becomes important to note that Nigeria recognizes the doctrine of separation of powers. The 1999
constitution of the federal republic of Nigerian provided for a rigid separation of powers following the
American model. As provided in section 4, it vests legislative powers in the National Assembly, which
consist of a senate house and a house of representatives (note that it is an error particularly as a law
student to say “house of senate”, the constitution provides for a senate –see section 4–). Section 5 vests
executive powers in the hands of the president of the federation and section 6 vests judicial powers in
the court system.

In practice however, the rigid demarcation of legislative, judicial and executive powers is not water tight.
What we have is a system of checks and balance that seeks to make separation of powers more
effectively by balancing the powers of one organ of government against the other through a system of
mutual checks exercised by the government organs upon one another. The idea of checks and balance is

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that it provides each branch of government with individual powers to check the other branches and
prevent any one branch from becoming too powerful. It is of the general view that the three organ of
government cannot be totally separated from each other. This is because the idea of tyranny or abuse
does not come from the separation of governmental powers, but from our system of legislative
administration, and our system of judicial review of administrative functions. We have gone past
Montesquieu and Mcllwain, and we have learned the danger in tyranny, and that injustices lurks in
unchecked powers and not in separating them.

The importance of the doctrine of separation of powers cannot be overemphasized. In the case of
Lakanmi v A.G. of Western Nigeria, the courts postulated that the division of powers, i.e. legislative,
judicial and executive should be adhere to, and further more that it would be unconstitutional for one
organ of government to interfere with the operations and functions of another government.

Similarly in the case of ugwu v ararume the supreme court of Nigeria held that Nigeria operates a
constitutional democracy, with powers constitutionally assigned to three recognized organ of
government, i.e. the executive, judiciary and legislative. It is the duty of the legislature to make laws and
have them interpreted by the judiciary and executed by the executive arms of government.

As stated supra, it is impossible to have a complete system of separation of powers, put in other words,
it is impracticable to have a watertight compartmentalization of three arms of government, what we
have is a system of “checks and balance” for the effective operation and review of governmental
functions. While it is within the confines of the legislature to make laws, it is the duty of the court to
review them. Thus in the case Adesanoye v Adewole the court held that by the doctrine of separation of
power, it is the constitutional function of the legislature to make law, including amendments and
revocation, it is the duty of the judiciary to interpret the amendments or revocation to achieve the
intention of the legislature. It therefore suffices to say that in instances where the intention of the
legislature is ambiguous or unclear, it falls to the court to give apt interpretation to make the intention
or the purpose for which the law is made realized.

Similarly is the case with the executive. While the executive is constitutionally recognized to execute the
law, it is the duty of the court to ensure that executive power is exercised within its constitutional limits.
Hence the court comes in when it is alleged that executive powers are not exercise within the confines
of the law. Thus in the case of Wabara v Nnadede the court held that “it is preferred to exercise a
corrective or review role in relation to executive acts”.

QST 3: It is not pragmatic to have a watertight compartmentalization of separation of powers. How true is
this assertion?. As an administrative law student immersed in the doctrines and principles of the law,
elaborate on this with the aid of judicial authorities.

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CLASSIFICATION OF ADMINSTRATIVE FUNCTIONS

The problem faced with the classification of administrative function is due to the fact that a legal term
may convey a range of meaning, and that within that range, the meaning appropriate for the resolution
of a particular dispute may well depend on the context in which the term is applied. In applying this
assertion to the initial method of classification (i.e. legislature, executive and judiciary), we see that
certain legal consequences flow from the manner of classifying a particular function, and when this
becomes the case, there are bound to be confusion. As we read further we’ll get a better understanding
of what we mean by certain legal consequences.

However, the court has abdicates the initial method of classification, by examining the nature of the
functions of the powers and its effect on individuals. This abdication of the initial method of
classification is due to the fact that we get to see certain administrative bodies performing judicial
functions, and the initial mode of classifying governmental functions as legislature, executive and
judiciary becomes insufficient, this is because we get to see a minute fusion of administrative or
executive functions with judicial function in certain governmental body, and this was the case in Ridge v
Baldwin where the committee though an administrative body was vested with the powers of settling
dispute and administering justice in that organization. In the case of ridge v Baldwin the plaintiff was
dismissed without being given the opportunity to defend himself. In this case, the court held that the
committee’s action of dismissing the plaintiff was unfair and thus against the principles of natural
justice. It suffices to say that it is as a result of the technicalities of the nature of the powers being
exercised by the committee and its adverse result on the individuals that the court had to overrule the
principle stipulated by the Donoughmore committee. Similarly today we get to see various executive
committees of various organizations being vested with similar function. Take the medical and dental
disciplinary committee for example, it is a body vested with the judicial function of settling dispute
between officials and also the discipline and administration of justice with regards to defaulting officials
and other relative areas. Take also the police service commission responsible for the administration of
justice in the Nigerian police force. How then can we classify these bodies?, do we say they are
administrative or judicial organizations ?. It is because of these questions that the classifications of
administrative functions become eminent; to this extent it becomes important to give cognizance to the
function of the powers being exercised and its effect (i.e. the legal consequence flowing from the
powers being exercised) on the person or individual concerned to give proper classification to these sets
of organs.

Furthermore as observed by Smith, the manner of classifying the functions exercised by the institutions
of government is far more important than classifying the institutions themselves. He went further to say
that the judicial review on administrative actions and also the remedies available to aggrieved persons
often depends on giving the appropriate classification of a particular statutory function.

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The initial task of classifying administrative function is a difficult one, however the British committees on
ministers’ powers classify administrative functions as: executive, judiciary, quasi judicial, legislative and
administrative decision.

 Legislation is formulating a general rule, without referring to a particular case.

 The executive is the process of making decisions which apply the general rule to a particular
case.
 A true judicial decision presupposes the existence of a dispute between two or more parties,
and then involves four requisite: presentation of their case by the parties (not necessarily
orally), the ascertainment of any disputed facts by the evidence adduced by the parties often
through the arguments of those evidence, the submission of arguments on any disputed
question of law, and a decision which disposes the whole matter by the findings upon the
disputed facts as well as an application of the law of the land to facts in dispute; also where
required, a ruling upon any disputed question of law.
 Quasi-judicial decision equally presupposes the existence of a dispute between parties and
involves: presentation (not necessarily orally) of their case by the parties, the ascertainment of
any disputed fact by the evidence adduced by the parties often with arguments on those
evidence. It does not necessarily involve the submission of arguments on any disputed question
of law. It never involves a decision which disposes the whole matter by the findings upon
disputed facts and an application of the law of the land to the fact so found. It suffices to say
that the function of the administrative bodies given in the examples supra, and even that seen
in the Ridge case are quasi judicial bodies. They are administrative organizations but not entirely
purely judicial bodies.
 Administrative decisions; the making of which the authority in question is not required to enjoy
any of the processes familiar with the court of law, and the grounds upon which he acts are left
entirely to his discretion.

However this classification can be criticized on the ground that seldom does the outcome of a case
vested in the competent authority due to the fact that nowadays it is turn purely on this mode of
classification. It can also be said that this positions supports the assertion that the court is the last resort
of individuals in the society.

Legal significance: In this line of thought, it can be said that classification helps the administrators and
the court in general in the administration of justice, and it also provides us with a useful rationale for
explaining certain decisions of the court. To this extent, take the Ridge case for reexamination again.
Normally the principles of natural justice do not apply in executive function but the court giving
cognizance to the powers being exercised by the committee insisted that the principles of natural justice
should apply. It became the case where the doctrine of natural justice extended into the realm of
administrative decisions for the first time. Hence we say the principle of natural justice applies where
there is a duty to act judicially. We shall get to see more on this and attain proper comprehension of the
principle of natural justice as you read further.

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NOTE: looking at the powers being exercised by the body so concerned for classifying that particular
function means giving cognizance to the fact that it is not merely executive powers being exercise, but
an administrative body exercising judicial functions. The principle of natural justice will not apply in the
exercise of purely executive functions. But where there is a duty to act judicially the principle of natural
justice will apply. Flowing from the legal significance given above, we see that this mode of classification
gives us an insight in understanding why the court did what they did in the Ridge case as well as an
understanding of the court’s decision in that case.

QST 4: The problem faced with the classification of administrative function is due to the fact that certain
legal consequences flow from the manner of classifying a particular function. As an administrative law
student, give an exhaustive exposition on this.

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PRINCIPLES OF NATURAL JUSTICE

The principle of natural justice requires the absence of bias. It is predicated on the terms “audi alteram
partem” and “nemo ludex in causa sua”, the former meaning “listen to the other side” is a principle
postulating that no person should be judged without fair hearing and each party is given the opportunity
to respond to the evidence against them. The later is the Latin phrase meaning “no one is judge in his
own cause”, It is the principle postulating that no person can judge a case in which they have an
interest.

When an administrative power is classified judicial or Quasi-judicial, it will be bound to the principles of
natural justice. However, if it is classified legislative, executive or administrative, the principles of natural
justice do not apply. This as we get to see in the case of Arzika v Governor of northern Nigeria the court
held that the governors act of removing the plaintiff from office was not acting judicially, his actions can
best be described as ministerial or legislative act.

Similarly in the case of Merchant bank v Federal minister of finance, the appellant’s banking license was
revoked by the minister of finance under section 3(5) (b) of the banking ordinance, upon an action in
court, it was held that the powers of revocation vested in the minster are administrative powers and not
judicial.

Also in the case of Nakkkuda v Jayaratne, the controller of a textile Ceylon made an order cancelling the
appellant’s license to act as a dealer, and the appellant sought to have the order quashed. It can be
inferred from the judgment of the privy council that since the controller of textiles was not acting’
judicially or quasi-judicially, the remedy of certiorari was not available. However it is important to note
that the House of Lords in the case of Ridge v Baldwin dissent on the conclusion reached in nakkkuda v
jayaratne. – Research more on this if interested –

It is important to be accustomed to certain terms before you continue to other chapters: prerogative
remedies, sub-delegation of powers and privileged right. Though further discussions will be done on
these terms in the subsequent chapters it is best an introduction is made.

prerogative remedies

Prerogative remedies is also known as judicial remedies, which are administrative law remedies
gotten from the courts by a victim of wrongful conduct or administration. These remedies were not
originally developed specifically as administrative law remedies by the English courts. The origin of
these remedies can be traced to England where what was in vogue was the use of prerogative
writs. Prerogative writs were brought by the King against the Officers to compel them to exercise
their functions properly or to prevent them from abusing their powers. Remedies which existed
under this Prerogative writ included Certiorari, Prohibition and Mandamus. It was not until the era
of Lord Mansfield and Blackstone that habeas corpus was grouped with these remedies under the
Prerogative writs as well.

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The prerogative remedies of certiorari and prohibition will only be available against a person or body
who is under a duty to act judicially. It will not be available to a person acting administratively or
executively. Thus in the case of rex v electricity Commissioner, the court held that for certiorari to be
available, there must be a duty to act judicially (you can also use the case of Nakkkuda v Jayaratne,
Merchant bank v Federal minister of finance for this position).

Sub delegation

It is a general rule that no delegated power can further be delegated, this is expressed in the maxim
Delegatus non potestas delegare meaning “one to whom power is delegated cannot further delegate
that power. It is important to state that under this, while it is permissible that executive powers may be
sub-delegation, judicial or quasi-judicial and legislative powers are not permissible. Thus in Bernard v
National Dock Labour Board, the court held that the powers granted to the board could not be
delegated to the port manager; at most the board could take recommendations from the manager.

As stated by Lord Denning, while administrative function can be delegated, judicial function rarely can
be. Similarly is the case of Vine v National Dock Labour Board. There are exceptions to this principle of
delegation of powers as we’ll get to see as you read further.

Privilege Evidence

In the absence of any statutory provision to the contrary, evidence given before a common law court is
not protected by the common law rule of absolute privilege which is available in regular court.

The exception to this is the law of perjury.

QST 5: it is the position of the law that the principles of natural justice will not apply where there is no
duty to act judicially. With the aid of judicial authority, discuss.

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DELEGATION- WITH REGARDS TO UNAUTHORIZED DELEGATION OF POWERS

With regards to this aspect, the concept is premised on the latin maxim Delegatus non potestas delegare
supra, meaning “one to whom power is delegated cannot further delegate that power. According to
Wills, a discretion conferred by statute is prima facie intended to be exercised by the authority on which
the statue has conferred it and by no other body.

However, the rule can be contended on the ground where the indication of the language, scope and
objective of statute extends authority to any other person or body. The clear rule of construction
dealing with delegation of powers is part gotten from the literal rule of construction, in part from the
theory of the rules of law, and also from the presumption that the conferment on a person to exercise
some discretion indicates that he was selected because of some aptitude peculiar to himself.

It is also important to mention at this point that in the grand scheme of things, this rule of delegation of
powers poses to a large extent certain limitation on the effectiveness of administrative decision making.
It is to this regard there are exception to this rule. Thus:

1. The principle does not prevent the exercise by civil servants the powers entrusted by legislation
to the ministerial head of a department or to the department itself. In the case of Carltona v
Commissioner of works, the appellant factory was requisitioned by the commissioner of works
on November 4, 1942, under section 5(1) of the defense regulation. However, the notice of
November 4 was signed by Mr. Morse on behalf of the commissioner. The appellant argues inter
alia that the declaration was invalid because it was not signed by the commissioner of works.
However contrary to the appellant’s argument it was stated that the functions which are given
to a minster are so multifarious that no minister could ever personally attend to them; the
duties imposed upon the minster and the powers conferred on him are normally exercised
under the authorities of the ministries and by responsible officials of the department.
Constitutionally, the decision of such an official is the decision of the minister, and he is
accountable for it to the parliament if the official is incompetent. In this case, the assistant
secretary, a high official of the ministry, was the person entrusted to look after this particular
matter. The case was dismissed and the requisition was therefore held. Similar is the case of
Local Government Board v Arlidge.
In the case of R v Skinner, the court held that approval of the Alcotest Breath-testing device
by the home secretary could be expressed by an assistant secretary in the police department of
home secretary. The court applied the carltona case, and it was also stated that it not strictly a
matter of delegation; it is that the official acts as the minister himself and the official’s decision
is the minster’s decision.

So also in the case of Re Golden Chemicals Limited, In issue was a provision in the 1967 Act which stated
that, if it appeared to the Secretary of State that it was expedient in the public interest that a corporate
body should be wound up, he could present a petition for its winding-up. That power had been
exercised by the Inspector of Companies in the Department of Trade acting for the Secretary of State.

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NOTE: the uniqueness of this case – Re Golden— is that while it was held in this case that there was no
obligation on the Secretary of State to exercise the power personally. The court rejected the argument
that unless the statute conferring power on the minister provides otherwise, the initial decision-making
process could be performed by someone other than the minster if it led to no invasion of the freedom or
property right of the subject. – You can also research more on this case if interested –

2. Parliament may provide express authority to a body on which it has conferred power, to
delegate, and even for that delegate to sub-delegate those powers.
3. It requires that ultimate power remains with the statutory body. It does not preclude that body
from delegating powers to another body some preliminary task leading to the final
decision/objective. In other words, a body may delegate certain task, and even seek
recommendations from it but it must retain to itself the final decision as seen in Mills v London
county council where the country council retained the power to review the decision made by
the film censor. However as we have stated earlier, judicial, quasi-judicial or legislative powers
cannot be delegated unless expressly permitted in statute. This we get to see in the case of
Bernard v National Dock Labour Board. A similar instance we get to see in the case of Vinn v
N.D.L.B. In this case, the plaintiff was a local Dock worker and was dismissed by a disciplinary
committee appointed by the local Dock Labour Board. The house of Lord held that the
delegation from the local board to the disciplinary committee was not permissible. In the case of
okoro v Delta steel co ltd, the court held that where power is delegated to a person, it is
exercisable by him directly and personally and he is not competent to delegate it on the
principle of delegates non potesta delegare.

QST 6: The rule of delegation of powers poses to a large extent certain limitation on the effectiveness
of administrative decision making. It is to this regard there are exception to this rule. With the aid of
judicial authority, discuss.

DELEGATED LEGISLATION (RULE MAKING)

The concept is not new one. However, it was the social and economic reform of the nineteenth century
that proved to be the origin on the scale to which we have now become accustomed to. Writers like
John Hewert has wrote against the concept, however as stated by the committee on minister powers in
England that delegated legislation is inevitable, but it can be improved by clear use of terminologies and
definitive terms with regards to delegated powers.

Of course parliament is the statutory body responsible for making laws, under the military rule the duty
is performed by a military council, as we perceived in the provisional ruling council in recent times. The
reason that contributed to growth of delegated power can be inferred from the technicality or
complexity of the area or aspect in question; the subject matter may encompass areas not detailed in

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statutory provision; time may be needed for experimentation and determination that all details can be
filled. The parliament or ruling council shoulders all the responsibility of law making, to this effect they
may delegate powers to other body or persons. The powers exercised by the latter are what is known as
delegated powers.

CONTROL OF DELEGATED LEGISLATION

Parliamentary control: subordinate or delegated legislation maybe required by the enabling legislation
to be brought and laid before the house before it becomes operative. in this regard, we have the
affirmative and negative resolution. Under the affirmative resolution, a statute may provide that the
delegated legislation do not have any effect until it is approved by the parliament. However if there is no
such provision, the delegated legislation becomes effective from the day it was enacted.

Where the negative procedure operates, the delegated legislation is open to a prayer of annulment
within forty days of being laid before the parliament. If successful, it will prevent actions from being
taken on the delegated legislation.

Scrutiny in committee: scrutiny through committee is more effective than scrutiny through members of
the house. This is because committee members are fewer and the committee will consider the technical
details of the legislation. This is because members of the committee are specialized in the area of the
delegate legislation (i.e. where it covers).

Control through consultation: the enabling statute or parent legislation may require that before
delegation is made, all interested person should be consulted. In one instance the enabling statue may
make consultation mandatory or directory. In another instance, a general discretion will be left with the
relevant authority to consult such interest as appear to be appropriate. In other instances, the statue
may be more explicit as to which interest should be consulted.

In the case of Rollo v Minister of town and country planning, It can be inferred that consultation was
fulfilled as it was held that the requirement of section 1(1) of the New Towns Act was satisfied since the
minister ensured that the local authorities were aware of the effect of the provision of the act and they
had full authority to put forward any criticism or suggestion which they wished.

Similarly in the case of Port Louis v A.G. Mauritius, section 73 of the local government ordinance stated
the governor may alter the boundaries of any town, district or village after consultation with the local
authority concerned.

Effects of non consultation

It is noteworthy that where the duty to consult is mandatory, failure to comply will result in whatever
order being made void. Furthermore it is also noteworthy that in situations where it involves the parent
body and the branches of the organization, it is settled law that consultation with the parent body
automatically constitutes consultation with the constituent parts. The exception to this rule is at
instance where there is an intention and an attempted for direct consultation with the particular branch

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so concerned. This was the facts In AHTB v. Aylesbury where the court held that consultation with the
parent body which in this case is the National farmers union constitutes consultation with branch but
with the exception as in this case where the minister attempted a direct consultation with the branch
which here is represented by the mushroom farmers. Therefore the mushroom farmers were not bound
by the order.

Publication

In order for the public to have access to the law, statutes usually require delegated legislation to be
published before it becomes effective. Various rules guiding delegated legislation and publication are to
be considered.

In the Britain, section 3(2) of the statutory instrument Act 1946 provides that in proceedings against any
person for contravening any statutory instrument, it shall be a defence to prove that the instrument had
not been issued or reasonable steps had not been taken to bring the purport of the instrument to the
notice of the public or the person charged.

In USA, section 3 of the administrative procedure Act 1946 provides that no person shall in any manner
be required to resort to organization or procedure not so publish.

In Nigeria, there seem to be no general statute requiring subsequent publication of delegated

legislation. However certain statute usually makes specific provisions for publications in the Gazette.
Take section 22(3) of the interpretation Act 1964 which provides that all orders, regulation and rules of
the court made under any Act shall be published in the gazette of the federation, and if made under any
law shall be published in the state Gazette.

Effect of non publication

NOTE: before we begin it is paramount to note that this aspect is with regards: order/instruments with
commencement dates, whether or not ignorance of the order can be use as an exception to the general
rule which says “ignorantia juris non excusat” meaning ignorance of the law is not an excuse, and lastly
the condition whether reasonable steps were taken to make the order public as stated in section 3(2) of
the statutory instrument Act 1946.

The question here becomes “what is the effect of failure to publish? Though the answer to this may
seem to be in the affirmative, however this does not seem to be the case as it is confidently asserted by
many writers on constitutional and administrative law that delegated legislation comes into operation
on the date on which it is made and not on the (normally later) date of its publication. It was at one time
thought that subordinate legislation required publication to be valid.

The implication of the above paragraph is seen in a number of cases, one of such is the case of R. v.
Sheer Metalcraft where the defendant was charged with contravention of the Iron and Steel Prices
Order 1951. The schedule to the Order had not been printed as required by the Statutory Instruments
Act 1946. The defendant contended that the failure to have the schedule printed meant that the order

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was invalid. The court held that the making of an instrument is complete when it is first of all made by
the Minister concerned and after it has been laid before Parliament.

Similarly is the case of Jones v. Robson where the Coal Mines Regulations Act 1906 empowered the
Minister to make orders prohibiting the use of certain kinds of explosives in mines. The Act also had
provisions about giving notice of these orders. The Minister made an order on July 24, 1809, to come
into effect on October 1, 1899. No notice in the form required by the Act however had been given. D
was charged with breach of the order and argued in effect that the order was void because statutory
notice had not been given. The Court held that the notice requirements were directory only and did not
affect the validity of the order.

While it can be said that the above cases seems to suggest that the defendant indeed did not deny that
the Order had in fact been published or that he himself knew of the order like in the Jones case, as in
that case, the defendant contention was that in effect the order was void because statutory notice had
not been given and he did not deny that he himself knew of the order. And also in the Metalcraft case
the defendants contention was not ignorance but predicated on the invalidity of the order, subject to
the failure to print the schedule. But what then becomes the right course of action at the instance
where ignorance of the law becomes the contention. To this end, it can be inferred that the case of Lim
v the Queen support the position that ignorance of the law becomes an excuse with regards to
delegated legislation and publication. In this case, i.e. Lim Chin Aik v. the queen, Singapore made it an
offence for a person to remain in Singapore if the appropriate Minister made an order prohibiting his
presence. The Minister made such an order in respect of the defendant but the defendant had no notice
of the order which had not been published. The Judicial Committee advised that the defendant's
conviction should be quashed. The Crown's contention that ignorance of the law was no excuse was
rejected by the court. A rationale that can be ascribed as a justification of ignorance being an excuse is
especially at certain instance where the law would not be ascertained even when best attempts and
endeavors were taken to make it known.

The case of Simmond v Newel can be said to be subject to the full vigor of section 3(2) of the statutory
instrument Act 1946 where the court stated that since the crown had not shown that reasonable steps
had been taken to bring the instrument to the notice of S, his conviction must be quashed. The court
rejected the crowns argument that though it wasn’t printed, it was still valid.

However it should be stated that the position of R. v. Sheer Metalcraft, Jones v. Robson and Simmond v
Newel all concerned instruments/orders with specific commencement date, and these cases acts as
precedence to cases of similar facts regarding this position. But where the case is one where there is no
statutory requirement of any particular form of publicity and where the piece of delegated legislation
does not specify the date on which it is to come into operation. Here there is clear authority that the
legislation does not come into effect until published. For this position, the case of In Johnson v. Sargant
is the precedence for cases that falls within this position. Thus in Johnson v. Sargant, an Order made by
the Food Controller under the Defense of the Realm Regulations, in part required importers of beans to
hold them at the disposal of the Controller unless they had been sold and paid for before the Order took
effect. The Order was made on May 16, 1917, but was not published (i.e. commenced) until May 17.

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Bailhache J. held that imported beans which had been paid for on May 16 were not caught by the Order.
His Lordship said that he was unable to hold that the Order came into operation before it was known
and that it was not known until May 17.

The above paragraph contends that a piece of delegated legislation which does not itself state a
commencement date comes into effect on the date of publication and not that on which it was made.
But it is however suggested that the Johnson’s case be authority for a more robust constitutional
principle which states: that a piece of delegated legislation stating that it is to come into effect on a
certain date but which is not published until a later date does not come into force until it is published.
To put in other words, so to be applicable even in orders with commencement dates as a matter of
justice, and that the general common law rule is that delegated legislation does not come into effect
until published.

It is of good knowledge to know that the united state case of Hutch v U.S.A. the court held that a person
who had actual knowledge or notice of an unpublished regulation cannot be found guilty. This seems to
be contrary to that seen in the Jones case where the validity of the order was upheld, the implication of
which is that the defendant is guilty.

Finally with all said and done, where the rule or order is published, i.e. publication is fulfilled and notice
is given, ignorance of the existence will not be an excuse as was held in the case of Federal crop
Insurance Corporation v Merill.

Control by the court

Just the way primary legislations are subject to judicial review, so also are delegated legislation. To this
extent delegated legislation can be reviewed in the procedure followed in its enactment or in its
substance. These are classified as procedural ultra vires and substantive ultra vires.

Procedural ultra vires

 Entails that where the requisite procedure is not followed and that procedure is held to be
mandatory and not directory, any such legislation will be invalid. – see chapter seven of
Administrative Law by Professor Lawrence Atsegbua –

Substantive ultra vire

 Entails delegated legislation being invalid, where its substance infringed the parent Act or some
other primary statute. In the case if A.G. v Wilts united Daires where the food controller was
empowered to regulate the sale, purchase etc of goods granted a diary company license to
trade but subject to a charge, the court upheld the refusal of the diary company to subsequently
pay after the first payment. This is because the Bill of right stated that no money should be
levied for the use of the crown without the consent of the parliament.

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 Delegated legislation may also be struck down if it unreasonable, manifestly unjust, if it involve
the oppressive or gratuitous interference with the rights of those subject to it and could find no
reasonable justification in the mind of a reasonable man, if it is disclosed in bad faith or
impartial in its operation with respect to different classes.
 Delegated legislation is invalid where it is repugnant to the general law of the land, this was the
position of the court in the case of Powell v May.
 Delegated legislation will also be struck down where it is too vague

QST 7: As an administrative law student, with the aid of decided cases, give a detailed and exhaustive
exposition on the controls of delegated legislation.

GUIDE TO THE QST:

QST 1… the concentration of this question is Dicey’s role in the development of administrative law.

QST 2… this question is predicated on the weaknesses of the position of absolution of the rule of law as
expounded by Dicey and then the unavoidability of discretion in the administration of the state as Legal
intellects like David rightly pointed out. The continuous growth of government activities comes with a
certain level of discretion for effective administration.

QST 3… discuss the exponents of separation of powers. The fact that pragmatically, it is not so a
stringent system of separation of powers as it may sound in theory. The position of this concept in
Nigeria as well and statutory and judicial authorities. And the concept of check and balance.

QST 4… The focus of this question is on the position that certain administrative bodies exercise powers
which do not fall within the initial mode of classification, flowing from this, there becomes the need for
a reconsideration of the powers being exercised by these organs and the effects of these powers on the
person or body so concerned.

QST 5… Exhaust your knowledge on this concept and the relevant cases.

QST 6… Discuss the principle Delegatus non potestas delegare. The reason for the exceptions as already
stated in the question. The exceptions and the relevant cases.

QST 7… Exhaust your knowledge on this area and the relevant cases.

I wish you what you desire come your exams and test.

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