THE CLASSIFICATION OF ADMINISTRATIVE POWERS

1.0     Introduction

2.0     Objectives

• Main Content
• The problem of classification
• Distinction by the Committee on Ministerial Powers
• Limitations of the Classification
• Legal Significance for the classification of administrative powers
  • The right to fair hearing and rule against interest and bias;
  • Prerogative remedies;
  • Duty to give notice;
  • Sub-delegation;
  • Ultra vires

4.0     Conclusion

5.0     Summary

6.0     Tutor marked assignment

7.0     Further reading and references

INTRODUCTION

Earlier on in our study, 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

• 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

 Main Content

Administration today exercises not only what may be called traditional executive functions but also legislative, judicial and quasi-judicial functions.

The primary function of the administration or the executive arm of government is the maintenance and execution of public policies as set out in laws, written and unwritten. That is why section 5 of the 1999 Constitution of Nigeria defined executive powers to include the execution and maintenance of the constitution, all laws made by the legislature and all matters with respect to which the legislature has the power to make laws. Today, administration is not confined to the execution and maintenance of law; it goes further to play a significant role in initiating and formulating policy decisions. The bulk of the laws enacted by the legislature are initiated and drafted by the executive department. The reason is quite clear. He who wears the shoe knows where it pinches and calls for flexibility. The administration concerned with the day to day application of the existing laws knows best what defects or shortcomings there are in the legal systems and what modifications are necessary to update the system and make it efficient and defective in action.

Problem of classification

The dividing line between the three types of governmental functions -legislative, executive and judicial has never been clear-cut. It is in many cases, hazy and most confusing. The decision in Lakanmin & Kikelomo Ola v. AG West & Ors (1974) ECSLR 173 shows that the dividing line between these functions may never be clear. In that case, a function seen and treated by the Federal Military Government as legislative was held by the Supreme Court to be a piece of legislative adjudication which violated the principle of separation of powers enshrined in the 1963 Constitution i.e. Decree No 45 of 1968

The reason for this confusion and indistinctiveness appears to lie in the fact that the administration exercises all these functions. All of them are lumped in the executive. Again, all these functions involve in one way or the other formulation, laying down or execution of policies.

Thirdly, all the functions, whether legislative, administrative or judicial, involve the exercise of discretionary powers and both executive and judicial arms of government make determinations of issues of law and fact.

Notwithstanding the difficulties associated with differentiating between these functions, attempts have been made to do so. This distinction is generally required because, whereas the administration has legitimate (Constitutional) mandate to exercise purely executive functions, it cannot validly exercise legislative or judicial functions without any statutory backing. Again, it is said that judicial functions must be exercised strictly in accordance with the rules of natural justice. Accordingly, certiorari or prohibition lies to control judicial but not administrative functions.

Therefore one of the problems of administrative law is how to draw the distinction or where to draw the line between the functions which are legislative, judicial and administrative so as to determine the appropriate procedure for exercising a given function.

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. In its 1932 Report, the British Committee on Ministers’ Powers attempted defining and distinguishing these powers as follows: -

DISTINCTION BY THE COMMITTEE ON MINISTERIAL POWERS

The committee on Ministers’ powers 1932 otherwise known as the Donoughmore Committee, was concerned primarily with the development or provision of a formula to guide legislators and draftsmen of statutes in the task of rationally allocating powers to ministers and courts or tribunals. Administrative functions should go to ministers while judicial functions should be assigned to courts or tribunals. In carrying out its assignment, the committee identified not only functions that are either administrative or judicial, but also those that are quasi-judicial, standing between the two earlier ones.

According to the committee,

“administrative and quasi-judicial functions involve the exercise of a considerable amount of discretionary powers and must be vested in the ministers, while pure judicial functions must be exercised strictly in accordance with well-established rule of law.,

According to the committee’s report:

“ a true judicial decision presupposes an existing dispute between two or more parties, and then involves four requisites-

the presentation (not necessarily orally)of their case by the parties to the dispute;

if the dispute between them is a question of fact, the ascertainment of the facts by means of evidence adduced by the parties to the dispute and often with the assistance of argument by or on behalf of the parties on the evidence;

if the dispute between them is a question of law, the submission of legal argument by the parties; and

a decision which disposes of the whole matter by a finding upon the facts in dispute and an application of the law of the land to the facts so found, including, where required, a ruling upon any disputed position of law”.

“a quasi-judicial decision equally presupposes an existing dispute between two or more parties and involves (1) and (2) but does not necessarily involve (3) and never involves(4). The place of (4) is in facts taken by administrative actions, the character of which is determined by the minister’s choice...”

“Decisions which are purely administrative stand on a wholly different footing from quasi-judicial as well as from judicial functions and must be distinguished accordingly in the case of the administrative decisions, there is no legal obligation upon the person charged with the duty of reaching the decision to consider and weigh the submission and argument, or to collate any evidence or solve any issue. The ground upon which he acts and the means which he takes to inform himself before acting are left entirely to his discretion.”

Limitations of the classification

Looking at the Report, we could perceive that the above classification is not without its problems for a power that is classified one way may, in fact or  ultimately,  possess  the features of a different power. For instance, though we could easily understand  the classification of legislative power vis-à-vis executive power, our  declared  understanding could become unfounded. Thus, a power that appears to be executive may turn out to be legislative. In respect of this, Benjafield and Whitmore note:

Thus a power vested in a governmental authority to make grants to schools if it is satisfied that they are  being  efficiently maintained  might  appear  on  the face of it, to be plainly executive or administrative but, if the authority were to elaborate in detail the conditions under which it would regard a school as qualifying for a grant, and issue circulars setting out such conditions, this would seem to be in substance formulation of a general rule. Indeed the distinction between that which is  general and that which is particular is a matter of degree.

If the above comments could apply to an area we  thought we  know  pretty well, how about the classification of judicial and quasi-judicial  powers?  We  tend  to  lose understanding  as the  classification  progresses  into  the  spheres  of  judicial   and quasi-judicial categories. This is because it seems what is said  about judicial classification is similarly written about quasi-judicial classification. On this, Benjafield and Whitmore are of the opinion that:

The distinction between judicial and quasi-judicial powers is based  on  the fallacy that in deciding cases all that the courts do is to apply pre-existing law. The most that can be said is that the discretions of  the  courts  may  differ  in  nature and  extent from the discretions of the administrator.

Our difficulty is even hardened when we are faced with the classification of the judicial, quasi-judicial and administrative. Commenting on the trouble with understanding administrative power, de Smith said:

A legislative act is the creation and promulgation of a general rule of conduct without reference to particular cases. An administrative act cannot be exactly defined but includes the adoption of a policy, the making and issue of a specific direction and the application of a general rule to a particular case in accordance with the requirement of policy or expediency or administrative practice.

The source of the problem is the peculiarity of administrative administration that unifies the powers of law-making, implementation and enforcement in one agency. Put differently, we have this kind of problem because the doctrine of  separation of power  has  no meaning  to  the fourth arm of government. According to Professor Griffith and Street:

But the distinction between legislative, judicial and administrative action is often difficult to draw … A statute may empower a Minister to delegate part  of  his function to some other authority. When he delegates he may impose certain conditions. Is the laying down of these instructions a legislative act? Legislation is often distinguished from administration on the ground that there

In the U.S. it is recognized that no real distinction can be drawn between judicial, quasi- judicial and administrative powers because constitutional requirements of due process will convert administrative power into adjudicative powers by requiring, inter alia, the giving of a fair hearing. According to Prof. Davis, the conceptual approach is worthless and is not followed by the courts in the U.S. and, where disputed facts are in issue, the courts would require fair hearing even though the action might otherwise be classified as legislative.

SELF ASSESSMENT EXERCISE 1

1. Discuss the problems inherent in the classification of administrative power
2. The problems of classification are more apparent than Do you agree?

LEGAL SIGNIFICANCE FOR THE CLASSIFICATION OF ADMINISTRATIVE POWERS

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

The right to fair hearing and Rule against interest and Bias

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

Prerogative Remedies

Prerogative orders of prohibition and /or certiorari are normally available to quash an administrative action classified as judicial or quasi-judicial. However, in the case of legislative, executives or administrative act an order of mandamus may lie to compel performance of a public duty. In the case of Banjo & Ors Vs Abeokuta Urban District Council (1962)

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

Duty to Give Notice

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

Sub-delegation

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

Ultra Vires

Where a power is legislative, an exercise of it may not be set aside by court on ground of been unreasonable, arbitrary, or ultra vires except for the instances it breaches the constitution or other statute. However where a power is administrative or executive, it will be set aside as ultra- vires on ground of unreasonableness, arbitrariness, mala fide etc. In Unilorin Vs Adesina(2009) 25 W.R.N. 97 an issue came up for determination on whether court has jurisdiction to entertain matters on administrative affairs of a University. In his judgment Per Agube JCA commented “In so far as the award of a degree or certificate is concerned, the courts have no jurisdiction in the matter and any attempt by any court including the Supreme court to dabble into the arena of purely administrative and domestic affairs of a university may lead to undue interference and weakening of the powers and authority conferred on the universities by statute and will not be justifiable or justified. He went on to say that “the courts are reticent in interfering in the domestic dealings of a citadel of learning and excellence such as a university, in situations where the university in the process of performing its functions under the law is found to have breached the civil rights and obligations of its students, the court will not hesitate to step in to remedy the grievances and grant reliefs for the protection of those rights and obligations.

Conclusion

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

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

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

SUMMARY

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

TUTOR-MARKED ASSIGNMENT

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

REFERENCES/FURTHER READINGS

1. O Iluyomade & B.U. Eka, Cases and Materials on Administrative Law p. 4 (Ibadan: Obafemi Awolowo University Press Limited, 1992).
2. Ese Malemi, Administrative Law (Lagos: Princeton Publishing Company, 3rd Edition, 2008).