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Hassan Tanko Kyaure Esq

ADMINISTRATIVE LAW IN NIGERIA

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DEFINITION OF LAW

By

 Hassan Tanko Kyaure Esq

Jurist and learners are not in dispute as to the existence of law, but what is quite unharmonious is its meaning and definition. Every jurist defined law in accordance with his understanding, religion or environment.

a working definition of law ha been given as “the body of rules set to regulate human conduct that is backed by authority.”

Law performs some crucial functions in the society, such as:

  1. Social control;
  2. Dispute settlement
  3. Regulation of social relations
  4. Social engineering.

            1.1 SOURCES OF LAW

In terms of broad categorization, there are 2 primary sources of law, namely, natural and positive law.

  1. Natural Source. These are basic fundamental agreement or law on which the society is developed. Example Fundamental Human Right.
  2. Positive Source. These are enactments made by the state from time to time to regulate the behaviour of the people. They include Acts of parliaments, Constitutions, Treaties, Judicial decisions and Delegated Legislation.

2.0      ADMINISTRATION

Administration can be defined as the activities of a group co-operating to accomplish common goals.

As Simon rightly puts:

            “When two men co-operate to roll a stone that neither could have moved alone, the rudiments of administration have appeared. This simple act has two basic characteristics of which have come to be called Administration.”

 There is a purpose – moving the stone, and there is co-operative action – two persons using combined strength to accomplish something that could not have been done without such a combination.”

Administration involves more than co-operating to achieve a common goal. Other things to be considered include;

    1. Method of co-operation.
    2. How workers are selected to do the job.
    3. How workers are motivated or induced to put in their best.
    4. How the jobs are divided among workers.
    5. How workers are taught how to do the job.
    6. How the activities of various workers are co-coordinated.

3.0        TYPES OF ADMINISTRATION

There are two types of administration. The Public and Private Administration.

Public administration is an administration organization in government institutions such as Federal, State, local government and other governmental organizations or agencies, while private administration processes and organizations by non-governmental institutions.

 

 

 

3.1            ADMINISTRATIVE LAW

A proper working definition of Administrative law could be desired as those authoritative rules which regulate the conduct of those who co-operate to achieve a purpose.

This definition refers to those in a public administrative setting such as;

(i)                 The institutions and administrative process of central and local governments.

(ii)               The principal sources of governmental legal powers, parliamentary and subordinate legislation.

(iii)             The mechanisms by which citizens grievances in respect of governmental actions may be examined and, where appropriate, redress be offered. Such channels of redress may be parliamentary, administrative or judicial.

(iv)              Public corporations.

(v)                The administration of local government and the general legal principles applying to local authorities.

In a nutshell, Administrative law is a branch of public law dealing with the actual operation and the control of the powers of government through administrative processes. When a constitutional process (election) resulted to a duly elected government, an administrative process begins when that government determine its policies any necessary legislation for its sustenance.

3.2 FUNCTIONS OF ADMINISTRATIVE LAW

Administrative law as a procedural or adjectival law is there to perform the following functions;

a.      it enables the task of government to be conveniently performed;

b.      it governs the relationship between the various administrative agencies;

c.      it examines the limit of all the administrative powers;

d.      it also examines the legislative and judicial control on administrative bodies.

3.3 LAW AND PRACTICES GOVERNING PUBLIC AUTHORITIES

Administrative law as part of public law is either governed by an Act of Parliament, or by the rules of practice. Public authorities came into being by virtue of an Act of parliament that establishes these authorities, its composition and function. It is therefore a matter of law that such established authorities are expected to comply and execute its activities in accordance with the provision of the law that gave birth to its existence.

The aforementioned appraisal could easily be understood when regard is made to a legislation that establishes the department or ministry of a minister. The same law or legislation may authorizes a minister) the head of the established ministry) to make any order as he deems fit so far as the orders will effect the smooth running of his ministry. However, the power of making of such orders could be valid only if the minister has exercise of such power, the minister acted otherwise, his order or discretion can be invalidated by the court of law, because the order is in breach of the principles of law. In essence, the rules of natural justice bind the ministers and officials in every departmental adjucation. They must act in good faith and thoroughly listen to both side because is a duty bound.

In practice, public authorities are obliged and expected to observe the rules of Natural Justice, which infact have the forces of universal application. The rule of Natural Justice postulates that “Justice should not only be done, but manifestly be seen to be done.”

The above pronouncement embodies 2 rules;

1. NEMO JUDEX IN CAUSA SUA (RULE AGAINST BIAS)

The maxim simply means that decision shall be made by an impartial judge. In the case of R V. RAND (1866). It was held that disqualification of a judge from acting in a particular case can arise in two ways viz;

(a). Where he (the judge) has any pecuniary interest however small it is in the subject-matter in dispute; no matter how and likely it is to affect his judgement.

In the case of Dr. ALAKIJA V. MEDICAL DISCIPLINARY COMMITTEE (1959) 4 F.S.C. 38, a medical practitioner contended that the Medical Disciplinary Committee did not conduct the enquiry in accordance with the principle of natural justice in that the Registrar who was in fact the prosecutor took part in the Committee’s deliberations after the appellant and his legal representatives had been asked to retrieve from the room. The Supreme Court held that the Registrar was neither by name nor by virtue of the position he held in the service of the Federal government a member of the committee, and therefore, he should not have remained with the committee during the consideration of their decision. His mere presence at the deliberations offends the principle.

(b) Where there is a real likelihood of bias i.e. the judge would be biased in favour of one of the parties to a dispute. See R V. CAMBRIDGE UNIVERSITY.

2.  AUDI ALTERAM PARTEM (RIGHT OF FAIR HEARING)

The right of fair hearing require that one who decides must hear the two parties to the dispute. The idea is that party to a dispute must be given a reasonable chance to defend himself.

In the case of ADENIYI V. YABA COLLEGE (1993) 7 SCNJ 304. The appellant was Deputy Registrar of the college. He was the secretary of an interview panel for the appointment of a new Rector for the respondent (the college). He recorded the proceedings and was responsible for the preparation and production of the report of the panel.

Following an allegation that there was leakage of the report, the respondent set up an investigation panel to investigate the source of the leakage. The appellant testified before the panel as a witness. The contention of the appellant is that he was never informed of and was not confronted with the misconduct in respect of which he was subsequently compulsorily retired, and was not afforded an opportunity of depending himself in respect of the allegations.

He appealed to the High Court and the trial judge dismissed the action. In the court of Appeal, the judgment of the trial court was affirmed. He further appealed to the Supreme Court which allowed the appeal to it, set aside the judgement and granted to the plaintiff the relief which he sought.

In the lead judgement delivered by Justice A.G. Karibi-Whyte JSC (as he then was) he said;

            “Our law recognizes two fundamental principles of justice as natural and inherent to the proper and effective administration of justice. These are that no person should be a judge in his own case, and that the parties to a case should be given adequate notice and opportunity to be heard….these are universal principles of ancient origin and common to mankind. We are in this issue concerned with the second of the two principles of natural justice. This is the principle of fair hearing in its Latin expression (Audi alteram partem). The laws of God and man both give the party an opportunity to make his defence, if he has any. I remember to have heard it observed by a very learned man upon such an occasion, that even God himself did not pass sentence upon Adam, before art thou: Hast thou not eaten of the tree, whereof I commended thee that thou shouldst not eat? And the same question was put to Eve also.”

It is pertinent to produce section 33(1) (now section 36 (1) of the 1999 CFRN) 1979 which states that;

            “In the determination of his civil rights and obligations, including any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.”

It seems to me that this section which guarantees and has entrenched fair hearing is on strict interpretation limited to the determination of civil rights and obligation. It follows therefore that where the determination of civil rights and obligations are not in issue, particularly in an investigation committee, the observance of fair hearing is not stricto sensu obligatory. But our courts have held that although a non-judicial tribunal (or administrative body) is entitled to decide its own procedure and lay down its own rules for the conduct of enquiries regarding discipline, it is of the utmost importance that the enquiry be conducted in accordance with the principles of natural justice.”

See DONLOYE V. MEDICAL AND DENTAL PRACTITIONERS DISCIPLINARY COMMITTEE (1968) 1 All. N.L.R. 306.

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