CLASSIFICATION OF ADMINISTRATIVE POWERS
A 1932 Report of the British Committee on Ministers’ powers classified the powers of the administration as:
- Legislative Powers
- Executive Powers
- Judicial Powers
- Administrative Decision
Legislative Powers: This is the process of formulating a general rule of conduct and applying it in later cases. For administrative authorities or agencies, to exercise these legislative powers, there must be an enabling law, conferring rule-making power on them. The laws these administrative agencies make are called delegated or subsidiary legislation.
Executive Powers: This is the process of performing particular acts, of issuing particular orders, or of making decisions, which apply general rules to particular cases. These can be divided into:
Ministerial Powers: These are delegated or subsidiary legislation enacted for execution and implementation of certain policies. These powers specifically state who is to exercise certain powers usually Ministers, Heads of offices etc. Section 2 of the Ministers’ Statutory Powers and Duties (Miscellaneous Provisions) Act describes the powers conferred on Ministers.
Administrative Powers: These are delegated powers that are used to coordinate and regulate the operations and activities of the administration.
Discretionary Powers: These powers are permissive. They are granted by statute or delegation and they do not impose an obligation on a decision-maker to exercise them in a particular manner. However, it is expected that this discretionary power will conform to certain principles. The agency or regulator has (i) a duty to act in good faith; (ii) a duty not to be influenced by irrelevant considerations; (iv) a duty not to exceed the statutory bounds of the discretion. In the case of Margaret Chinyere Stitch v Attorney-General of the Federation Board of Customs and Excise, it was agreed that the Minister had discretionary power to handle certain issues as contained in Section 3(2)(a) of the Finance Act 1981.
Judicial/ Quasi-Judicial Powers: Administrative adjudication has been defined as the process by which an administrative agency issues an affirmative, negative, injunctive or declaratory order. Administrative agencies are allowed, legally, to exercise these judicial powers. This process involves setting up a panel or tribunal, applying the agency’s policies and laws and arriving at conclusions that will affect the civil rights of the persons involved. Quasi-judicial powers involve making decisions on presupposed dispute between parties in the agency.
Administrative Decision: This is when the decisions to be made do not require the authority to employ any of the processes ascribed to a court of law and where the basis of the authorized official’s actions or judgments are left entirely to his or her discretion.
LEGAL IMPLICATIONS OF THE CLASSIFICATION
Natural Justice: This is a legal principle used in the determination of just or fair processes in legal proceedings. It imposes a code of fair procedure, including the right to be given a fair hearing and the right to have a decision made by an unbiased decision-maker. It embodies two principles:
Nemo Judex in Causa Sua (Rule against Bias): The maxim means that decision shall be made by an impartial judge. In the case of Dr. Alakija v Medical Disciplinary Committee, a medical practitioner appealed that the case was carried out contrary to natural justice because the registrar, who was also the prosecutor, sat in during the committee’s deliberations. The Supreme Court held that the Registrar’s presence in the room was against the principle (Nemo Judex in Causa Sua) that clearly states that one cannot deliberate over a case that he/she is invested in.
Audi Alterem Patem (Right of Fair Hearing): The right of fair hearing requires that one who decides must hear the two parties to the dispute so both sides will be given a reasonable chance to defend themselves. Section 36(1) of the 1999 Constitution clearly states that every person is entitled to a fair hearing. In the case of Adeniyi v Yaba College, the appellant was the secretary of an interview panel. It was discovered that the report of that panel was leaked. An investigation panel was set up to find the source of that leakage and the appellant was subsequently fired after the result of that investigation. The Supreme Court ruled in favor of the appellant who claimed that he was never informed or allowed to defend himself against the allegations before he was fired.
Granting of Prerogative Remedies: Administrative acts that are judicial/quasi-judicial but are not legislative powers can be overridden by prerogative orders of certiorari, mandamus or prohibition.
See Shitta-Bey v Federal Service Commission
See Shugaba v Minister of Internal Affairs
Duty to Give Notice: For judicial powers, the administrative body is compelled to give notice to any person who will be affected for the panel to be set up. But, for legal administrative power, there is no compulsory duty on the administrative agency’s part to consult or notify anyone (whether affected or not by the action) unless an enabling statue imposes.
Sub-delegation and Ultra-vires: The legal maxim “delegatus non potest delegare” means “a delegate may not sub-delegate powers or functions delegated to him except expressly authorized to do so”. In the case of A.G Bendel State v A.G Federation, the Supreme Court held that the National Assembly cannot delegate its law-making functions to a Joint committee of the National Assembly. Administrative authorities may be allowed to sub-delegate powers which are classified as ministerial or executive and not judicial or legislative.
Ultra-vires for Unreasonableness: Administrative or executive powers may be declared invalid on the basis of unreasonableness, arbitrariness or ultra-vires. In Contrast, legislative powers can only be declared invalid if it breaches the constitution or existing statutes.
Privileged Evidence: Unlike regular court procedure, evidence presented before an administrative tribunal is not covered by the common law rule of absolute privileged except in cases where a specific statue states otherwise.