It is necessary to determine whether the act or power exercised by the administrative authority is that of executive, legislative or judiciary because each of them has its own legal implication. It has been contended that remedies available to an aggrieved person depend upon the types of power exercised by the administrative authority. If such power is classified as judicial or quasi-judicial, the order of Mandamus, certiorari and prohibition may be issued to stop or quash it. However, where he is acting in a legislative or executive capacity, a prerogative order of mandamus may not as a general rule lie against it to compel the performance of the public duty. In Banjo vs. Abeokuta Urban District Council (1965) I, NMLR 295, the applicants requested for the issuance of permit to operate their cabs in the area of jurisdiction of the Council after having paid the necessary fees and filling required forms. The permit was denied by the secretary to the Council. They brought an action for an order of mandamus against the Council. It was held that if a body against whom an order of mandamus is sought from the previsions laid down in the law empowering that body to perform a public duty, mandamus would lie against it to compel it to act according to law.
The general rule of “delegatus non potest delegare” meaning, a delegate cannot sub delegate his power unless empowered by statute applies strictly to judicial or quasi-judicial power or function. However, an executive or administrative function may be delegated unless the enabling law expressly forbids the sub-delegation. In Banner vs. National Dock Labour Board, (1953) 2 Q.B. 18, was held that no judicial functionaire can delegate its functions unless he is enabled to do so expressly or by necessary implication.
Where an administrative body is performing a judicial or quasi-judicial function, he is expected to act in accordance with the principles of natural justice. These are: Audi alterem Partem a person cannot be condemned unheard) and Nemo Judex in causa sua, meaning:
one cannot sit in his own case (See Merchant Bank of Nigeria vs. Federal Ministry of Finance (1961), ANLR 568).
Where however, the administrative power is classified as legislative, executive or administrative, he need not apply the rules of natural justice as a rule. However, such
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administrative agent must act fairly. See R.V. Liverpool Corporation Ex Parte Liverpool Taxi Owner Association, 1972 2 Q.B. 299 AT 307.
Generally, a legislative power will not be declared invalid or void on the ground that it is unreasonable, arbitrary or ultra vires but where it is administrative or judicial, it can be set aside as ultra vires on ground of unreasonableness or arbitrariness.
Where an administrative body is acting in a judicial capacity, it will be protected against civil or criminal liability on the basis of judicial privilege. They must however act in good faith. In Collins vs. Henry Whiteway & Co. (1927) 2 KB, 378, the plaintiff, Louisa Collins, who sued by Williams Collins, her best friend claimed damages from the defendants; her former employers for false imprisonment, malicious prosecution and libel. These claims failed except in regard to one libel contained in a letter dated July 7, 1926. As to this, Horridge J. held that the occasion was privileged but the jury found that it was written with malice and awarded damages in favour of the Plaintiff.
SELF ASSESSMENT EXERCISE
Explain the various sources of administrative power.
4.0 CONCLUSION
The administrative agencies derive their powers from express, implied or incidental power.
Where it is exercised arbitrarily, it will be declared as ultra vires. In exercising these powers however, particularly when there is need for judicial review of their action, the issue of classification of powers ensues. This is a great task and despite this task, the legal consequence(s) of the function or power exercised by the administrators determine(s) what capacity he is acting.
5.0 SUMMARY
In this unit, we have discussed types of administrative powers such as express, implied and incidental powers. We have also discussed classification of governmental powers and finally the importance of classifying these administrative or governmental powers.
6.0 TUTOR-MARKED ASSIGNMENT
Discuss the various ways into which a governmental power may be classified.
7.0 REFERENCES/FURTHER READING
Egwummuo, J.N. (2000). Modern Trends in Administrative Law. Enugu: Academic Printing Press.
Malemi, E. (2008). Administrative Law. (3rd ed.). Ikeja: Princeton Publishing Co.
Nwagbara, C. (2016). Administrative Law as the Bedrock of Administrative Agencies and
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Procedure in Nigeria. International Journal of Business & Law Research 4 (1), p. 9-16.
Olaleye, O.A. (2005). Essentials of administrative law in Nigeria: a social science perspective. Akure: Bosem Publishers, p.16.
Report of the British Committee on Ministers‟ Powers 1932, cmd. 4060, 20, 73, 81.
The Constitution of the Federal Republic of Nigeria, (1999) (as amended).
Yakubu, J. A. (2003). Constitutional Law in Nigeria. Ibadan: Demyaxs Law Books.