VALIDITY OF DELEGATED POWER

 CONTENTS

1.0 Introduction

2.0 Objectives

• Main Content
• Validity of Delegated Power
• The Rule against Sub-delegation

4.0 Conclusion

5.0 Summary

6.0 Tutor-Marked Assignment

7.0 References/Further Readings

 INTRODUCTION

Having come this far in this module,  this  Unit  looks  at  the  appropriate  way  of donating  and exercising power. With all the numerous powers placed at the doorsteps of the agencies, there is the need to guide against procedural allocation or exercise of power.

In our country where so many people tend to claim  both  what  belongs  to  them  and what does not, it is  of  the essence that  certain principles or  rules  are put  in  place so that we will be able to honor power properly delegated and ignore those that have no such provenance.

Similarly, regarding  the  exercise  of  power,  there  is  the  need  to  know  whether  the donee  of  power  must   without   any   exception   perform   that   task   personally   or vicariously. This is because acts that ought to be personally  carried  out  but  actually  carried  out vicariously risk being declared null and void pursuant to the legal maxim of  delegatus non potest delegare. In order for an agency not to indulge in expending or, actually, wasting tax payers’  money  doing  what  would  be  declared  invalid,  it  is essential to,  from the  outset, get the agency sensitized enough to do only that which it can lawfully do.

OBJECTIVES

At the end of this Unit, you will be capable of:

• Distinguishing valid power from invalid power
• Evaluating the claims of persons who pretend to possess valid power

MAIN CONTENT

Validity of Delegated Power

For power to be said to have been validly and regularly granted to an  administrative agency,  the following conditions must exist:

The power must be delegable

There  are  certain  powers  that  cannot  be  delegated  by  one  arm  or   branch   of government to another but must be performed by the repository of such power. Such powers include:

• Powers that require personal performance;
• Powers involving exercise of discretion;
• Judicial or quasi-judicial power
• Legislative powers such as the power to declare war, the power to  impeach,  and the power to create new States

A state which takes the view that the legislative procedure followed in prescribing theterms   and manner of distribution of the finance of the Federation is not in accordance with theprocedure laid down in the Constitution has a justiceable dispute. A legislature which operates a federal written Constitution in which the exerecise of legislative power and its limits are clearly set out has no power to ignore the conditions of law making that  are imposed by that Constitution which itself regulates its power to make law. See the case of A.G. Bendel  State v. A.G. Federation &22 Ors. (1981) 1 ALL NLR 85 S.C.

There must be a delegation of power

Generally, for a delegated legislation to be so-called, the donor of power must have actually granted such powers to the agency. Where, in the event that the agency acted without prior authorization, the repository of power may ratify the agency act, that is, if such act is amenable to ratification. See the case of Anya v. Iyayi. (1993), 7 N.W.L.R. Pt. 305 p. 290 S.C.; see also the case of Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR Pt. 135 p. 688 S.C.

There must be a proper delegation

There are so many ways of transferring power to another person or authority – orally,  in writing, by deed, etc. No matter the chosen method of transfer of  power or delegation,  the most important thing is that the donor must effectively communicate such transfer  to  the donee. Furthermore, where a particular or special method of delegation is required or specified by law, then the power must be delegated according to the method specified by such law. See the case of PHMB v. Ejitagha (2000) 11  NWLR Pt 790, p. 362; Comptroller of Nigeria Prison Service, Ikoyi v. Adekanye (2002)  15 NWLR Pt. 790 SC and Unipetrol Nigeria Plc v. Edo State Board of Internal Revenue.78

In the case of Comptroller of Nigeria Prison Service, Belgore JSC as he then was delivering the judgment of the Supreme Court explained the law thus:

“It is clear from the provisions of section 160 of the Constitution that the Attorney General’s powers of public prosecution is not exclusive; the ‘any other authority or person’ in sub- section (1) can institute and undertake criminal proceedings. The Central Bank of Nigeria and the Nigerian Deposit Insurance Corporation are also authorities that can institute criminal proceedings under the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Decree 1994; see section 24 thereof; the Attorney General can institute and undertake criminal proceedings”

Delegation must be to an appropriate officer or authority

The donee of power must be an appropriate officer or authority to exercise the power. For example, if the National Assembly enacts the National Health Act, it is taken for granted that the power of delegated legislation would be transferred to the Minister of Health. But  where, for any reason, the National Assembly grants such power to the Minister of Labour, such delegation would be null and void because the  Minister of Labour is ill-suited to make rules and regulations in the Ministry of Health.

SELF ASSESSMENT EXERCISE 1

1. Under what conditions can power be said to have been properly delegated?

The Rule against Sub-delegation

When the Constitution or a Statute delegates the power of law-making to an administrative agency, is that agency seized of the power or authority to entrust the performance of that function to another agency or body. In other words, can the delegate sub-delegate its power to another delegate? The general position is captured by the Latin maxim delegatus non potest delegare meaning that “ a delegate may not sub-delegate its power unless and except he is expressly or impliedly authorized so to do.” Put differently, a person or authority charged with the duty of law making is not at liberty to surrender  that  power  to  a  different  person  or body. See the case of A.G.Bendel State v. A.G. Federation and 22 Ors (supra). In this case, the President and Commander-in-Chief sent the Allocation of Revenue (Federation Account, etc) Bill 1980 – outlining a new formula for  the  distribution  of  the  amount  standing  to  the  credit  of  the  Federal  G o v e r n m e n t   amongst   the   Federal Government, State Governments and Local Governments – to the National Assembly for consideration and passage by virtue of S. 149 of the CFRN 1979. The Joint Committee of the National Assembly worked on the bill and reverted back to the National Assembly. Subsequently, the National Assembly passed the Allocation of Revenue (Federation Account, etc) Act 1981. The question for determination by the Supreme Court was  whether  it  was lawful for the National Assembly to delegate its legislative functions to its Committee. The court answered in the negative and annulled the Act. Note the comments of Fatai Williams, CJN as follows:

“… a legislature which operates a written Constitution in which the exercise of legislative power and its limits are clearly set out has no power to ignore the conditions of law making  that are imposed by that constitution which itself regulates its power to make law.”

However, there are exceptions to this general rule. First, the Constitution or the enabling  Statute may itself expressly authorize the agency to which power is being delegated to; likewise, delegate it to some other authorities. Under S. 5(1) (a) of the CFRN 1999, the executive powers of the Federation is vested in the President who may exercise same either directly or through the Vice President and Ministers of the Government of the Federation or officers in the public service of the Federation. In other words, the Constitution expressly permits  a  situation  the  President  performs  the  duties  of  his  office  either  personally  or  vicari ous l y . For equivalent provisions regarding the Governor of a State, see S. 5(2) (a) CFRN.

Many Statutes or Acts of the  National  Assembly  contain  express  provisions  which permit the head of an agency to act personally or through the agency of his lieutenants. For example, S. 17 of the Prisons Act empowers the Minister of Internal Affairs to delegate  any of  his functions under the Act to a public officer in his ministry or to an officer in the  Civil  Service  of a State, as the case may be.  You  should  note  that  a  decision  in  favour  of  sub-  delegation is sustainable only where the words in the enabling or parent Acts are plain and unambiguous.

But what happens if the Statute is silent on sub-delegation? This is one area where the donee of power must be careful because if  he  sub-delegates to  a  wrong person, the eventual exercise  of such power risks judicial invalidation.

Also, you should note that the maxim does not apply to an agency exercising  purely ministerial functions (such as the signing of  documents);  executive  or  administrative functions (such as the issuance of licenses, permits, etc). In other words, unless there is any clear indication to the contrary, an agency performing ministerial, executive, or administrative functions can sub-delegate to another delegate. It is important for you to note again that unless the law provides otherwise, note that legislative, judicial or quasi-judicial function, duties involving the exercise of discretion, and duties required to be performed personally cannot be sub-delegated.

SELF ASSESSMENT EXERCISE 2

1. Under what circumstances may the donee of power be competent to sub-delegate such power to another?

 CONCLUSION

Because it is of the essence that the power of a person  or  agency which  seeks  to deprive others of their rights and liberties is validated or traceable to a  legitimate  authority,  considering the validity of delegated power is significant. This is the more so in our country where so many persons and  organizations  arrogate  to  themselves powers to which they are, as a matter of law, not entitled. Thus, the frequency of such ‘passing of’ makes an examination of this Unit necessary.

Similarly, we have looked at the  rule  against  sub-delegation. It  is  important that  the objects or victims of power be acquainted with the rights, duties and limits of agencies so that, in appropriate cases, they may be able to invoke judicial process against excessive agency acts. Afterall, one of the foundational rationales for the existence of administrative law is providing avenue for those aggrieved by administrative activities to seek redress.

SUMMARY

In this Unit, we considered the validity of power and the rule against sub-delegation.

 TUTOR-MARKED ASSIGNMENT

1. The rule against sub-delegation may be a check on the excesses of  administrative  agencies. Discuss.

REFERENCES/ FURTHER READINGS

T.F. Yerima & B. Abegunde (Ed.), Essays on Administrative Law in Nigeria (Ado Ekiti: Petoa Educational Publishers, 2006).

T.F. Yerima & B. Abegunde (Ed.), Essays on Administrative Law in Nigeria (Ado Ekiti: Petoa Educational Publishers, 2006).