Administrative Law

• Pages: 475-616

ADMINISTRATIVE LAW

(1) ADMINISTRATIVE AND JUDICIAL TRIALS

1001. Dismissal of a public officer is an administrative and as a judicial act.

“The actual making of the order or promulgation thereof is an administrative act but

the exercise leading to the decision to dismiss the public officer definitely affects the

rights of the public officer and, consequently, it is a judicial act. In this connection we

refer with approval to the statement of Lord O’Brien, L.C.J. in the case of R. (Wexford

C.C.) (supra):- “I have no hesitation in saying that I have always considered, and still

consider, the principle of law to be as stated by the Chief justice (i.e. May, C.J. in the

Queen v. Corporation of Dublin - 2 L.R. Ir. 371) assuming that there is nothing in

the statute constituting the particular tribunal or investing it with the particular power

which indicates a contrary intention. I have always thought that to erect a tribunal

into a “Court” or “jurisdiction”, so as to make its determinations judicial, the essential

element is that it should have power, by its determination within jurisdiction, to impose

liability or effect rights. By this I mean that the liability is imposed or the right is

affected by the determination only, and not by the fact determined, and so that liability

will exist, or the right will be affected, although the determination be wrong in law or

in fact. It is otherwise of a ministerial power. If the existence of such a power de-

pends upon a contingency……. his determination does not bind. The happening of a

contingency may be questioned in an action brought to try the legality of the act done

under the alleged exercise of the power. But where the determination binds, although

it is based on an erroneous view of facts or law, then the power authorizing it is

judicial (provided it is within the limits of its jurisdiction) (see Irish Law Reports

(1902) 2 L.R. at 373 – 374).”

As already indicated, it is clear from a close examination of Regulation 52

aforesaid that the statute invests the “disciplinary authority” (i.e. the Commission)

with the discretionary powers to either initiate proceedings under Regulations 55 &

58 if the said edict in cases where it receives a complaint relating to a public officer

who absents himself or herself from duty without leave or reasonable cause or ignore

the provisions of the said Regulations i.e. 55 or 58, and dismiss the officer forth with

if satisfied that the complaint is valid. There is, of course, need for investing the

commission with this discretion.

The raison de’tre for this provision is not far to seek, if, of course, an officer

who absents himself from duty without leave or reasonable cause can be found, or

does not obstruct efforts by his superiors to get him, to explain or justify his behaviour

and his explanations are considered unsatisfactory by his superior officers then, upon

a report made to the Commission, that body may (and quite often should), pursue the

course provided by Regulations 55 and 58 aforesaid before taking a decision on the

issue. If, however, the officer absenting himself from duty without leave either (as in

the instant case) cannot be found to be queried or invited for his explanation (if any)

Administrative and judicial trials Para. 1001

475

by his superior officer or again, as in the instant case), refuse to sign for documents

either querying or inviting explanation for his behaviour, it will, of course, be absurd to

expect the disciplinary authority, in those circumstances, to embark upon a futile

exercise under the provisions of Regulations 55 and 58 aforesaid.

The above, it seems to us, together constitute the raison d’etre for the spe-

cific provisions in the Regulations or, and the special treatment of, misconduct by

absence without cause from duty. Hence, the existence of the “peculiar” course to

be adopted by the Commission with respect of public officers who absent themselves

from duty without leave or reasonable cause. Under the Regulations aforesaid (i.e.

52) the Legislature has invested in the Commission the discretion either to apply the

audi alteram rule of the principle of natural justice prior to its decision (and it is

expected that the membership of the Commission being reasonable will always pur-

sue this course wherever and whenever possible) or, in appropriate cases (such as

the case in hand, where the offending public servant is not only unreasonable in his

behaviour but also cannot be found), to take a decision, on a complaint before it –

provided the grounds for taking such a course abound in the said complaint – from

the appropriate quarter, without first giving the officer concerned a hearing. The

need for the application of the audi alteram partem rule is amply taken care of in the

said Regulation for it affords the public officer concerned the chance, of a hearing

subsequent to the decision of the disciplinary authority if the public officer affected

eventually seeks one.

A review, of the order by the body making it, such as is provided for under

the proviso to the said Regulation is a “judicial one”. As was stated by Lucas, J.: - “I

can see nothing in the procedure laid down by the Act which departs from the prin-

ciples of natural justice. In deciding to issue a prohibitory order that the Board may be

acting in a quasi-judicial or in a ministerial capacity; in whichever of the two capacity

it is acting, the actual making and promulgation of the order is an administrative act.

Thus, the prescribed course of procedure provides for an administrative act followed

by a judicial hearing if an applicant seeks one. Such a procedure constitutes in my

opinion a sufficient compliance with the principles of natural justice. (See Lucas, J. in

Ex parte H.M.H. Publishing Company Inc. (1964) Queensland Reports 261 at

289).” - Per Idigbe, J.S.C. in Falomo v. L.S.P.S.C. Suit No. S.C. 457/1975; (1977)

11 N.S.C.C. 230 at 239-240.

1002. Need to give fair hearing in all trials.

“In all the trials whether judicial or administrative, the person against whom a com-

plaints is laid must be heard in compliance with the principle of audi alteram patem.

This is the crux of S. 33 of the Constitution of the Federal Republic of Nigeria, 1979

and always reflected in statutes where persons could be put on trial or investigated

with possible consequence of reprimand and or punishment. For every accusation

there must be a right to be heard.” – Per Belgore, J.S.C. in Council Fed. Poly.

Vol. 1: ADMINISTRATIVE LAW 476

Paras. 1001,1002

Mubi v. Yusuf Suit No. S.C. 141/1991; (1998) 1 N.W.L.R. (Pt. 533) 343 at 351.

(2) ADMINISTRATIVE BODIES

1003. An administrative body has a duty to act fairly.

“In matters of this nature, the earlier view of the law is that an administrative body,

in ascertaining facts, may be under a duty to act judicially notwithstanding that its

proceedings have none of the formalities of, and are not conducted in accordance

with, the practice and procedure of a Court of law. It is enough if it is exercising

judicial functions in the sense that it has to decide, on the materials before it, between

an allegation and a defence. (See R. v. Manchester Legal Aid Committee, Ex parte

R.A. Brandy and Co. Ltd. (1952) 1 All E.R. 480 at p. 489; Board of Education v.

Rice (1911) A.C. 179 (H.L.) at p.182; Local Government Board v. Arlidge (1915)

A.C. 120 (H.L.) 120 at p. 132).

The modern concept which, however commends itself to us, is that the duty

placed on such a body is to act fairly in all such cases. No labels such as “judicially”

or “quasi-judicially” are necessary, as they only tend to confuse. As Lord Parker,

Lord Chief Justice of England, has aptly put it in Re: H.K. (In Infant) (1967) 2 Q.B.

617 at p.630, a case involving the immigration authorities – “That is not, as I see it, a

question of acting or being required to act judicially, but of being required to act

fairly”. Thus, in Re Pergamon Press Ltd. (1971) Ch. 388 (C.A.) Lord Denning,

M.R., said at p.399 that the duty of the inspectors conducting an enquiry under Sec-

tion 165(b) of the Companies Act, 1948, to act fairly – “rest on them, as on many

other bodies, even although they are not judicial nor quasi-judicial but only administra-

tive”. See Reg. v. Gaming Board for Great Britain, Ex parte Benaim and Khaida

(1970) 2 Q.B. 417. Again, as Sachs, L.J., pointed out at p. 402 of the same judgment:

– “It is not necessary to label the proceedings ‘judicial’, ‘quasi-judicial’, ‘adminis-

trative’, investigatory’; it is the characteristics of the proceeding that matter, not the

precise compartments into which it falls.”

Moreover, wherever any body of persons having legal authority to determine

questions affecting the rights of subjects, and having the duty to act judicially or fairly

acts in excess of their legal authority, an Order of certiorari or prohibition would

lie. (See R. v. Electricity Commissioners (1924) 1 K.B. 171 at pp. 204, 205). It is the

same with individual officers discharging public functions (See R. v. Boycott and

Ors., Ex parte Keasley (1939) 2 K.B. 651), and to Ministers of the Crown such as

in the case of The King v. Minister of Health, Ex parte Yaffe (1930) 2 K.B. 98

where the Court of Appeal held that: – “an order made by the Minister under Section

40, subsection 3, of the Housing Act, 1925, in respect of which the statutory condi-

tions under which alone it can be made, have not been complied with, is not an order

which, when made, can by reason of Section 40 subsection 5 of the Act, have statu-

tory effect; that as the order in question was made without the statutory conditions

477 Paras. 1002,1003

Administrative and judicial trials