Administrative Law

• Pages: 6-282

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ADMINISTRATIVE LAW

(1) ABUSE OF POWER.

Forms of abuse of power.

“The Supreme Court in the case ofHead of the Federal Military Government v. Public Service

Commission & anor. ExParte Maclean Okoro Kubeinje(1974) 11 SC 79 at 125, statedinter

alia, thus: “abuse of power may take the form of non-compliance with rule or rules of procedure

prescribed for that body; it may be exemplified in the denial of the right to be heard in one’s

defence; it may consist of irregularities which are tantamount to a denial or breach of the rules

of natural justice; indeed, it may take the form of an assumption of jurisdiction to perform an

act unauthorised by law or a refusal of jurisdiction where it should be exercised.” – PerOrji-

Abadua, J.C.A., in Muhammed v. A.B.U. ZariaSuit No. CA/K/295/2010; (2014) 7 N.W.L.R.

(Pt. 1407) 500 at 535.

(2) ACCUSED PERSON OR PERSON UNDER INVESTIGATION.

Duty on an accused person to raise the defence of alibi timeously and to give particulars

of his whereabout at the time the offence was committed; effect of failure.

“It would be necessary to consider the Alibi raised by the Appellant for the first time at the

trial. He stated in his evidence that on the day of the incident he dressed up and, on his way, to

board a vehicle to his place of work, when a bus parked in his front and one passenger pointed

at him as the person that he picked as passenger the previous day. He stated further that the

others in the vehicle who were OPC officials directed him to enter the vehicle and was taken

to Adatan police station. See pages 80 to 83 of the record of appeal. This Alibi was not disclosed

to the police at the time Appellant volunteered his statements Exhibits “C” and “J”. By this act

the Appellant failed to afford the police the opportunity to investigate the Alibi.? It is incumbent

on the Appellant to inform the police of his Alibi and also furnish the police with detailed

particulars of his whereabouts so that same could be investigated. It is trite law that Alibi must

be made at the earliest opportunity to the police. I am of the view that since the Alibi of the

Appellant is not contained in his statement to the police, it is an afterthought. Moreso since the

evidence of PW2, PW3, Exhibits “C” “J” and “E” fixed the Appellant to the scene of crime.

The defence of Alibi is therefore destroyed. See - Tajudeen Iliyasu v. The State(2015) 11

N.W.L.R. part 1469 page 26. - Hassan v. State(2001) 6 N.W.L.R. part 709 at page 305. -

Obakpolor v. The State (1991) 1 S.C.N.J. page 91. - Opeyemi v. The State(2019) L.P.E.L.R. -

48764 (SC). - Abubarkar Mohammed v. The State (2015) 10 N.W.L.R. part 1468 page 496.”

–Per Bada, J.C.A., in Momodu v. State Suit No. CA/IB/112C/2018; (2020) L.P.E.L.R.-49612

at 18 – 19.

Effect of an accused person raising the defence of alibi at trial and not before trial.

“I agree with the Court below that the defence was belatedly raised and relieved the Police of

investigating it. The Appellant first raised the defence of alibi during his evidence in chief

before the trial Court, after he had admitted the offence for whichhe was charged, in his extra-

judicial statement before the Police. Learned counsel for the Appellant has failed to state how

a miscarriage of justice was occasioned against the Appellant by the failure of the trial Court

to consider a belated and unsubstantiated defence of alibi. The Court below was therefore right

in not considering the defence of alibi, which in my view, was an afterthought. See Akeem v.

State(2017) L.P.E.L.R. - 42465 S.C.” – PerAboki, J.S.C. in Ossai v. People of Lagos State

Suit No. SC.853/2017; (2022) L.P.E.L.R. – 57297 at 27 – 27.

Need for a Tribunal or panel of inquiry to allow accused person or person under

investigation to confront all his accusers.

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“A citizen under investigation cannot be said to have received fair hearing if he was selectively

invited to confront some, and not all his accusers. The argument of the appellant that the

respondent elected not to recall such witnesses who testified in hisabsence is balderdash.

Indeed, that statement is a confirmation that the entire procedure was a breach of the provision

of section 36(1) of the1999 Constitution of the Federal Republic of Nigeria (as amended). Why

should any witness be taken in the absence of the “suspect”? Presence makes a lot of differen ce.

If the witnesses were witnesses of truth, why was a “cover” necessary? The two cardinal

principle in the provision of section 36(1) are independence and impartiality. A proceeding

which shielded seventeen (17) out of twenty-three (23) witnesses can hardly be said to be

impartial if at all independent. (See pages 187-188 & 345-346 of the record transmitted on the

9th April, 2013). Even-handedness is the hallmark of impartiality. The respondent had the right

to elect which of the witnesses who appear before the panel to cross- examine and which not

to. Having been denied that right of choice, the proceedings cannot be said to be impartial.

Being the product of a flawed procedure, the dismissal of the respondent is of no legal

consequence. The implication, as well adumbrated in the lead judgment, is that the respondent

is entitled to be restored to his office.” – PerDongban-Mensem, J.C.A., in U.C.H.B.M. v.

Morakinyo Suit No. CA/I/113/2013; (2014) 16 N.W.L.R. (Pt. 1434) 589 at 618.

Right(s) of an accused person as enshrined under the Constitution and does an accused

person have the right to be present during visit to the scene of the crime by the

investigating police officer.

“The Constitution of the Federal Republic of Nigeria 1999, as amended, provides that

whenever a person is charged for a criminal offence, he shall, unless the charge is withdrawn,

be entitled to a fair hearing in public within a reasonable time by a Court or Tribunal. See

Section 36(4) of the Constitution. Furthermore, the Constitution in Section 36(5)-(12) makes

elaborate provisions to safeguard the right to fair hearing of a person who is charged with a

criminal offence. None of the provisions relate to investigation of a crime except Section 36

(6) (a) which provides for the right of a person charged with a criminal offence to be informed

promptly in the language that he understands and in detail the nature of the offence. It follows

therefore that the contention of the appellant’s counsel on the right of the appellant to be present

during the visit to the scene of the crime by the investigating police officer is misplaced. There

is no such right known to the Constitution of Nigeria. However, that is not to discountenance

the necessity of investigation of a crime by the police before any person is charged to Court for

allegedly committing a crime. The need to investigate criminal cases properly and thoroughly

particularly those attracting capital punishmenthas been emphasized in judgments of Courts

of this clime. See for example, Onah v. State(1985)12 S.C. 59, 78 and Atiku v. State(2010) 9

N.W.L.R. (Pt. 1199) 241, 280.” –PerEkanem, J.C.A., in Ossai v. StateSuit No.

CA/AS/494CA/2018; (2021) LPELR-54796 at 6 – 7.

(3) ACTION FOR CERTIORARI.

Duty of a petitioner filing a petition for certiorari with the appellate Court to specifically

state why the relief sought is unavailable in any other Court or through any other

appellate process.

“A petitioner filing a petition for certiorari with the appellate Court must specifically state why

the relief sought is unavailable in any other Court or through any other appellate process. An

application for certiorari can be denied where the appellate Court is of the view that the case

does not disclose an appropriate matter for its consideration. See Popoola v. Nigerian Army

(2022) 6 N.W.L.R. (Pt. 1825) 1 (SC), Jamaare v. Jamaare & Ors(2022) L.P.E.L.R. -

57113(CA).”– PerOnyemenam, J.C.A., in Fountain Links Ltd & Anor v. Uboh & OrsSuit

No. CA/AS/472/2017; (2023) L.P.E.L.R. - 60249 at 9.

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When can an action be commenced by a writ of certiorari.

“The Court has a discretionary power to either grant or refuse the application for an order of

certiorari. It is important to note that for an action to be commenced by a writ of certiorari,

there must be a decision of an inferior Court or body and the Court must have acted in a judicial

or quasi-judicial capacity.” – PerOnyemenam, J.C.A., in Fountain Links Ltd & Anor v. Uboh

& Ors Suit No. CA/AS/472/2017; (2023) L.P.E.L.R. - 60249 at 10.

Whether and when a party can maintain action for certiorari as per denial of fair hearing.

“The contention whether a party must have participated fully and cooperated in proceedings

before he could successfully maintain an action for certiorari as per denial of fair hearing may

not always be correct. Depending on the circumstances of the case, a party does not have to

fully cooperate in proceedings before an action for certiorari as per denial of fair hearing can

be maintained. Depending on the facts and the circumstances surrounding a case, a party may

refuse to participate fully non cooperate and yet still maintain an action for certiorari as per

denial of fair hearing. See Lawal v. Quadri (2004) 6N.W.L.R. (Pt. 868) 1.” – Per Denton-

West, J.C.A., in Ogene v. OgeneSuit No. CA/E/65/2006; (2008) 2 N.W.L.R. (Pt. 1070) 29 at

49.

(4) ADMINISTRATIVE ACT.

Can administrative direction or act override provisions of legislation.

“The directive, assuming it existed, as an administrative direction or act cannot override or

amend the provisions of a legislation. Learned counsel for the respondent did not state who

gave the directive. It is only the competent legislative authority thatcan amend a law in the

manner prescribed by law. In the case of the Rules of the High Court, it is only the High Court

Rules Committee by virtue of section 72 of the 1991 Anambra State High Court Law that can

do so, not by issuing directives, but by enacting Rules amending the principal Rules.” – Per

Agim, J.C.A., in Sylvester v. OhiakwuSuit No. CA/E/359/2008; (2014) 5 N.W.L.R. (Pt. 1401)

467 at 506.

•Criterionfor determining judicial or administrative act.

•“Whether an order is judicial, quasi-judicial or not, involves in certain cases,

considerations of public policy. The criterion however, for determining a judicial or

administrative act is whether the order affects or is capable of affecting legal rights atissue.

This excludes where report or recommendation by a panel of inquiry as in the case in Ortese v.

Military Governor of Benue State (1991) 4 N.W.L.R. (Pt. 183) 102 at 117.” – Per Peter-Odili,

J.C.A., in Ajayi v. S.E.C. Suit No. CA/A/200/M/05; (2009) 13 N.W.L.R. (Pt. 1157) 1 at 27.

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•Essence and purpose of the Administration of Criminal Justice Act and Law.

•“As I aptly postulated in the sister appeal (SC/353F/2O19), the fundamental purpose

necessitating the enactment of the Administration of Criminal Justice Act (ACJA) supra, has

been unequivocally provided in section 1 of the Act itself: 1(1) The purpose of this Act is to

ensure that the system of Administration of Criminal Justice in Nigeria promotes efficient

management of criminal institutions, speedy disposing of justice, protection of the society from

crime and protection of rights and interests of the suspect, the defendant, and the victim. (2)

The Courts, law enforcement agencies and other authorities or persons involved in this

Criminal Justice administration Shall ensure compliance with the provisions of this Act for the

realization of its purposes. 2.(1) without prejudice to section 86 of this Act, the provision of

this Act shall apply to criminal trials for offences established by an Act of the National

Assembly and other offences punishable in the Federal Capital Territory, Abuja. (2) The