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THE CHALLENGES OF CONTROLLING ADMINISTRATIVE LEGISLATION IN NIGERIA By Oyelami, T.O.

Introduction

In any democratic setting, the law making power certainly

and indeed, rightly belongs to the legislature. This body is represented in Nigeria in form of National Assembly, made up of Senate and House of Representatives, and Houses of Assembly at the Federal and States level respectively.1 Their equivalent is the Congress in the United States and Parliament in Britain. Perhaps, it may be reiterated that the assignment of law making power to a particular body is founded on John Locke's theory of separation of powers popularized by Montesquieu. No doubt, the same theory necessitated the conferment of executive power on the executive2 and judiciary the adjudicatory power.3 To say the essence of all these is anchored on the need to check anarchy and misuse of powers at various levels of governance is but saying the obvious. Going through the literature however, one cannot but acknowledge the existence of the practice whereby the executive enjoy considerable law making power in addition to its usual executive power. It is incontrovertible that the practice is a negation of doctrine of separation of powers. As noted earlier, one consequence of this is anarchy. But the practice seems inevitable given the exigency of modern governance. To forestall the negative consequence, certain

1. 2. 3. See ss. 4 and 30 of the Constitution of Federal Republic of Nigeria, 1999. S. 5 Ibid. S. 6 Ibid.

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control mechanisms have been institutional. Prominent among these are the working organs of government i.e. the executive legislature and judiciary. Of course, the existence of others is not in doubt. It is the experience however, that the establishment of an institution to achieve a particular purpose is one thing, its efficacy is completely another. This is moreso when the dynamics of the society is taken into consideration. As such a routine examination of these mechanisms becomes imperative. Infact, this becomes more imperative in countries like Nigeria where its administrative law, compared with places like United States and Britain, is in its developmental stage. The appreciation of this informs this discourse. And in so doing, the following questions appear germane. What is administrative or delegated legislation? Why administrative legislation? What are the control mechanism and what are their challenges? Administrative (Delegated) Legislation in PerspectiveMeaning Administration or the executive is that organ of government responsible for the executive of governmental policies. In common parlance, its action is always qualified with the word "administrative". On the other hand, in general, a legislation is that law enacted by a legislative body. However, it is important to note that given the exigency of modern governance it has been the practice for the law making body to delegate law making power to the administrative organ of government or its agencies. The law emanating from the exercise of such delegatory powers is invariably termed administrative or delegated legislation. Thus, its definition as the legislation by some persons or

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body of persons under statutory authority given to that person or body of person by statute4 seems infallible. For the purpose of clarity, it appears relevant to appreciate the fact that both the empowering act otherwise known as enabling, primary or parent law, the delegated legislation otherwise known as administrative, delegated or subsidiary legislation have equal force of law. This is however on condition that the power under which the later emanates is delegable, delegated, properly delegated, and must be exercised by appropriate officer(s). There are numbers of decision in support of this. In Attorney-General, Bendel State v. Attorney-General Federation,5 the passage of the Allocation of Revenue (Federal Accounts etc.) Bill into law was declared unlawful as the power to make such law resides restrictly with the Senate and House of Representatives hence, not delegable. And in AttorneyGeneral, Kaduna State v. Hassan,6 the nolle prosequi entered by the plaintiff respondent was held invalid because the Attorney-General did not delegate the power to do so. On proper delegation, the law is also very clear. Where a particular or special method of delegation is required or specified by law in delegation, any deviation from the requirement or specification by law will render the delegation ineffectual.7 Concerning the exercise of delegated power by appropriate officer, it is sacrosanct that where a power is exercised by a body, such body must be the right authority to exercise the power under the enabling Act. Anything in deviance of this will be held invalid.8

4. 5. 6. 7. 8.

Bird, Roger (Ed): Osborn's Concise Law Dictionary (London: Sweet & Maxwell, 1982) p. 113. (1982) All NLR 85 SC. (1985) 2 NWLR (Pt. 8) p. 483 SC. See PHMB v. Ejitagba (2000) 11 NWLR (Pt. 677) p. 154 SC. NAF v. Obiosa (2003) 4 NWLR (Pt. 810) p. 233 SC.

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Justification Pertinent to reiterate that it is undisputable that delegated legislation infringes on the principles of separation of powers, certain reasons however underline its practice. One of such that has been put forward is that delegated legislation enables the experts to complement the legislature in law making.9 This becomes paramount in modern time where demand for legislation in technical aspects appears to be on the increase. This must have informed the British Committee on Ministerial powers' opinion when it noted: If the Parliament were not willing to delegate law making power, Parliament would be unable to pass the kind and quality of legislation which modern public opinion requires.10 It is also not in doubt that delegation of legislative power allows flexibility, adaptability and quick response to local need. This assertion was further put in perspective by Malemi. According to the erudite scholar: An administrative authority or agency which deals directly with the people is in a better position to make rules and regulations ­ tailored to meet contingencies and unforeseen circumstances that may arise from time to time, from day to day or even on the spot.11

9. Nigerian Air Force v. James (2002) 18 NWLR (Pt. 798) p. 205 SC. 10. (Cmnd 4060 p. 23) 1932. 11. Malemi, Ese: Administrative Law (Lagos: Princeton Publishing Co., 2008) p. 134.

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Finally on this is the suitability of delegation of legislative power and delegated legislation in time of war or other state of emergency, as it is devoid of extensive procedural debate when compared to the process of law making by the Parliament. Thus, the danger of long time response is promptly accounted. But this does not obviate the fact that unless it is well handled, emergency regulation constitutes potential danger as it often infringe on civil liberties. Method The delegation of power on administrative bodies to make law takes different forms. Though the common method is for an Act of Parliament to empower an authority to make regulation, rules, bye laws, orders or do give directions, this is not exclusive of others. The delegation may also come under the Constitution as seen under the Nigerian Constitution of 1999.12 And unlike the delegation under the enabling statute where an authority is only empowered to make subsidiary legislations, the delegation under the Constitution goes to the extent of modification in the text of any existing law as deemed necessary or expedient to bring that law into conformity with the provisions of the Constitution by the executive.13 It is important to note that even the delegation under the enabling Act is devoid of any uniformity. Infact, some may take the form of simple delegation of powers to make subordinate legislation. The Emergency Power Act 1961 provides an example of this by conferring upon the Presidentin-Council the power to make such regulations that appear to him to be necessary or expedient for the purpose of

12. See s. 315 Constitution of Federal Republic of Nigeria, 1999. 13. Ibid.

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maintaining and securing order and good government in Nigeria. Under section 6 of the same Act, the President-inCouncil is empowered to amend, suspend, or modify a law enacted by any legislature in the country. It provides further that any regulation made by the President has effect notwithstanding anything inconsistent therein contained in any law and only provision of a law which is inconsistent with any such in consistency have no effect so long as such regulation remain in force. Interesting enough, the Act as simple as it appears was none the less a subject of controversy especially with regard to the above mentioned provisions. In the view of Professor Nwabueze, the Act merely constituted the President-inCouncil into a legislature and these grounds went beyond mere delegation but a mere surrender of power by Parliament.14 Whereas, the reverse was the joint opinion of Professors Iluyomade and Eka. According to these erudite authors, the provision in issue is far from being an abdication of legislative powers by the Parliament as it still has control under section 5 of the Act.15 The constitutionality of the Act was somehow put to test in William v. Majekodunmi,16 where an action seeking the act declared unconstitutional was filed. The plaintiff sough inter alia, his restriction of movement to a distance of three miles from a certain address at Abeokuta made under the Emergency Powers (Restriction Orders), a subordinate legislation of the Act in issue declared illegal and ultra vires the defendant. An injunction restraining the defendants, his servants and/or agents from giving effect to the restriction order was also sought therein. Drawing

14. Nwabueze, B.U.: The Presidential Constitution of Nigeria (London: C. Hurst & Co. 1981) P.32. 15. Iluyomade & Eka: Case and Materials in Administrative Law in Nigeria (Ile-Ife, OAU Press, 1985) p. 72. 16. (1962) 1 All N.L.R. 413.

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conclusions upon the evidence present in the case, the court was of the opinion that there was no reasonably justifiable ground to restrict the plaintiff's freedom of residence and movement. Consequently, a declaratory judgment with liberty to apply for an injunction was granted. The court was however silent on the legality of the main legislation, possibly because it was not in issue. In addition to the foregoing, there abound other methods of delegated legislation but not as all-embracing as those just discussed. The methods are however somehow restrictive. An example is the enumeration of subject on which regulations may be made as found in section 33(10) of the Firearms Act. This empowers the President, after consultation with the Council of Ministers to make regulations in the areas of methods of application and items or conditions for firearms dealers and licensing authorities, the procedure for sale and transfer of firearms licensing fees and so on. Delegation to make regulation and obligation to publish is another example. This is illustrated under section 9 of the Nigeria Civil Aviation Training Centre Act 1964 which authorizes the Board to make regulations whenever any act, matter or thing, falls to be prescribed under the Act and when approved by this Minister the regulations shall be published in the Gazette. Procedural Rules Some formal orders in rule making by administrative authorities have been developed over the years. The development, no doubt, must have been in furtherance to the need to reduce to possible limit the arbitrariness in making delegated legislation. Prominent among these orders are the investigative procedure; the consultative procedure; the auditive procedure and the adversary procedure. The adoption of any particular choice however depends on certain number of factors such as the stipulation as to the adoptable

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orders contain in the enabling law or statute, the character of the parties affected and the nature of the problem to be dealt with. Others include the character of administrative determination, the type of administrative authority exercising the rule making function and the character of enforcement attached to the resulting regulation. Nevertheless, it is important to note where the enabling Act stipulates a particular procedure for law making, failure to comply with such portends a great danger for the resultant law.17 Control of Delegated Legislation An erudite jurist Gayer once noted "an unfettered power is certainly good for no one, and government departments are no exception to that rule".18 Consequently, in modern government, be it the British parliamentary system or the presidential system practice in United States and Nigeria among others, the entire machinery of governance i.e. the legislative, executive and judiciary and extra judicial bodies have been brought to bear in the control of delegated legislation. The basic question here however is how effective are these control devices? Legislative Control Indeed, it is incumbent on the legislature, as the donor of legislative power to the executive, to exercise control over the power so donated otherwise the donation may turn into abdication. Generally, two methods of legislative control of delegated legislation are well known - the control through the enabling Act and through various legislative committees. On the former method of the control is the insertion of some

17. See for example, Agricultural and Forestry Industrial Training Board v. Aylesbun Mushrooms Ltd. (1972) All E.R. 280; Ifezue v. Mbadugba (1984) 1 All NLR 256 SC. 18. Gwyer: The Powers of Public Departments to Make Rules Having the Force of Law, 5 Public Admin 404.

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condition precedent or subsequent or both for the enactment of the law in the enabling Act. This can be instanced with the Foreign Judicature Act 1890. According to the Act, every Order-in-Council made pursuance of the Act shall be laid before the House of Parliament forthwith after it is made, if the Parliament be then in session and if not, forthwith after the commencement of the next session of the Parliament. Obviously, the requirement here is simply mere laying without further condition. There are however instances whereby the laying may be conditional i.e. subject to annulment, amendment, or disallowance. Example of this is found in the Nigerian Citizenship Act 1961 which stipulates that: "any order made by the Governor General (President-in-Council) addition to, altering, amending or replacing the Third Schedule to the Act shall be laid before both Houses of Parliament within 14 days after making or if Parliament is not in session as soon as may be after commencement of next session".19 And either Houses may within seven days of sitting days pass a resolution disallowing the regulation, thereby rendering the order void but without prejudice to any action taken there under. The legal consequence of non-compliance is that the regulation or order is void if not laid within the specified periods but without prejudice to the validity of any action taken pursuance to such order. The other instance is the laying subject to affirmative resolution as contained in the Emergency Act 1961 which provides viz: "Every regulation made under s.3 of the Act every order or rule made wider any regulation, shall cases to have effect after four months of its making unless approved by resolutions of both Houses of Parliament but without prejudice to any action lawfully taken under it".20

19. See section 10(3). 20. See section 5(1).

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On the other hand, the Parliament may by resolution amend or void the order even before the expiration of the time stipulated in the Act. The hallmark of the foregoing devices for control through the enabling act is that for any law to be enacted intra vires the stipulated condition precedent must be fulfilled. On the control of delegated legislation through the House Committee, the process may vary depending on the system of governments, yet the methods largely correspond, as will be seen in the course of this discussion. Under the British parliamentary system one of the methods of control is through the proceeding in full House which include, full-sale debating on enabling bills and general motion. Under this, a bill may be required to be laid before the legislature which may be mere laying without further direction or laying subject to annulment, amendment or disallowance or laying subject to affirmative resolution. In addition, there are checks through legislative committees and through the motion of censure on the Minister responsible for instrument of parliamentary questions and debate relating to delegated legislation. With this, every Minister is kept on his toes to ensure compliance with the provisions of the enabling Act relating to his office and thereby avoids unnecessary sanction which may even result into the dissolution of the cabinet. The aforementioned methods of checking the powers of delegated legislation are also applicable under presidential system. As part of its oversight function on the executive, the legislature is empowered to direct or cause to direct an investigation into the conduct of affairs of any person, authority, ministry or government department charged or intended to be charged with the duty of or responsibility for executing or administering law enacted by the legislature. It is interesting to note that the essence of these control devices conferred on the legislature is to ensure the executive

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is confined to making laws in respect to any matter within its legislative competence simplicita! As noted earlier, one justification for delegation of power of legislation to the administrative is to enable it handle technical legislation. This no doubt suggests the incapability of the legislature to handle technical matters. If so, how then can it control technical legislation? Afterall, it is a popular adage, `physician heal thyself'. Nevertheless, it is quite obvious that the role of higher education in the path of the legislators in remedying this legislative handicap cannot be overstressed. Therefore, the rejection of the attempt to raise the educational benchmark for the would-be legislator in the recent constitutional review appears rather unfortunate. Also, if the wise saying that gift blinds the wise is anything to go by the spate of bribery allegation between the legislature and the administration in Nigeria seems to constitute an undermining factor for the efficacy of the legislative control. The alleged 2005 N55 million bribery scandal between the Ministry of Education and certain members of Senate Committee on Education appears apt in this regard. Executive Control In order to avoid the danger and the consequential embarrassment of unlawful exercise of power of delegated legislation, the executive itself, as a matter of practice directs and supervises its law making powers. This executive approval in Britain is manifested in the establishment of a cabinet committee, a body known as legislative committee charged mainly with the responsibility of screening delegated legislations to ensure that: When instruments were of importance or likely to be controversial and certainly when any principles of liberty were involved, we require

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them to be submitted to the legislative committee for examinations as if they were bills. The authority to make them was of cause contained in the Act of Parliament, but at times there was considerable argument, for we were rightly on the watch lest the department went too far ...21 The aforementioned practice may not be directly applicable in Nigeria under the presidential system of government. Its equivalent, however, is at the federal level, Federal Executive Council (FEC) which meets on weekly basis under the present democratic dispensation. During the meeting, each Minister, as a matter of obligation, presents his policy proposal to the Council of Ministers for appraisal and possible approval or rejection. Thus, administrative legislation in aid of such unpopular or unacceptable proposed policy could be prevented from seeing the light of the day. The suspension of the new Naira notes policy proposed by the Central Bank of Nigeria (CBN) by the President Yar'Adua is nothing short of an illustration.22 Indeed, the foremost method of controlling delegated legislation by the executive is its ability to appoint and remove the members of its statutory bodies and corporations. The importance of this lies in the fact that it is a potential way of terminating unpopular policy. In the United States the exercise of this power by the executive is shared with the Senate. This is not exactly the same in Nigeria. For instance, in Nigeria the President who is the chief executive officer has the sole authority to hire and fire. This can be exemplified with the Central Bank Act which provides that there shall be for the bank a Board of Directors which shall be responsible

21. Morrison: Government and Parliament, p.239. 22. See Vanguard online, Friday 24th August, 2007.

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for the policy and general administration of the affairs and business of the bank.23 Besides, it further provides that the Board shall consists of a Governor, five Deputy Governors and five Directors all shall be appointed by the President by instruments under the public seal and on such terms and condition as may be set out in their respective letter of appointment.24 But one seems to subscribe to the view of that school of thought which perceives the Unites States' model as a better option as it invariably gives room for checks and balances.25 However, one noticeable challenge of the removal of the head of administrative body or any of its members to right any perceived wrong of an administrative legislation is that such may halt the alleged wrong legislation but may not be good enough to cure the injury it occasioned. Perhaps, the situation may even turn for the worst where the capacity or power to remove such head may be lacking as found in the case of State Governor and State Commissioner of Police under section 215 of the 1999 Constitution of Nigeria. Judicial Control As legally and firmly established as the legislative and executive control of the administrative rule making power seem to be, an aggrieved individual in private or public capacity is also empowered to check delegated legislation through the judiciary. This is sequel to the power conferred on the judiciary by virtue of section 6 of the 1999 Constitution which extend to matters between persons, or between government or authority and to any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and

23. S.4 Central Bank of Nigeria Act, 2003. 24. Ibid. 25. The fact that the law has been amended to accommodate this view justifies the assertion (See s. 8(1) CBN Act, 2007).

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obligations of that person. It should be noted that under section 46 of the Constitution, any person who alleges that any of the provisions of the Chapter has been, is being, or likely to be contravened in any state in relation to him may apply to a High Court in that state for redress. And the High Court may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement within that state of any rights to which the person making the application may be entitled under Chapter IV of the Constitution. It is necessary to state that successful application for judicial review by individual in Nigeria is predicated on a general limitation of locus standi, a concept defined as the right to be heard in court or other proceedings.26 In other words, the term denotes legal capacity to institute proceedings in a court of law.27 Infact, it is used interchangeably with terms likes "standing" or "title to sue". By the application of this concept in Nigeria, a plaintiff whose claim is in respect of a subject matter that concerns the public at large is lacking in standing to maintain a claim unless he has a special legal right or alternatively, if he has sufficient or special interest in the performance the duty sought to be enforced.28 What constitutes sufficient, or special interest or whether an interest is worthy of protection is however a matter of judicial discretion.29 Historically, in Nigeria the requirement to disclose locus standi in order to challenge public policy dated back to 1961 in the case of Gambioba and Ors v. Insesi and Ors,30 where it was held that its absence is fatal to a case. One of the relatively recent matters in this regard is Captain Din v.

26. 27. 28. 29. 30. Rogers, Bird, op. cit. p.209. Thomas v. Olufosoye (1986) 1 NWLR p.670. Sehindemi v. Governor of Lagos State (2006) 10 NWLR p.9. Adesanya v. President of Nigeria (1981) 2 NLLR p.358. (1961) All N.L.R. 584.

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Independent Electrical Commission (INEC),31 where it was held that the plaintiff lacks locus to sue for the recall of Deputy Senate President, Alhaji Nasir Mantu. The justification for the requirement of locus standi according to one school of thought arises out of the need to shield the governmental authorities or the executive from frivolous or unnecessary litigation which may distract the government from its arduous task of administration.32 Anxiety has however been expressed over the manner of the application of the concept in certain cases. Infact it has been opined that courts in certain cases have not only fought shy of standing up to the executive in place, it also give up to the body without a fight in their avowed tasks of deciding what the law is.33 The court's decision in following cases seems to buttress this view. In Olawoyin v. Attorney General of Northern Nigeria,34 the court dismissed on preliminary objection a claim by the applicant on the constitutionality of certain provisions of Young Persons Law 1958. The opinion of eminent jurists in this regard points to the fact that since the litigant happened to a popular politician and one of the opinion leaders in the then Northern Nigeria, the matter ought to be heard on its merit. Also in Senator Adesanya v. President, Federal Republic of Nigeria,35 it was held that the senator had no locus to challenge the constitutionality of the appointment of the Chairman of Federal Electoral Commission. If a senator of the Federal Republic had no locus on electoral matter then who else? Whereas by virtue of section 36 of the 1999 Constitution, every person is accorded the right to be heard by a court or tribunal. As such, the right to be heard is fundamental. The bench mark of this right as

31. 32. 33. 34. 35. See Guardian, Thurs. 27 July 2006 p.4. Iluyomade and Eka, op. cit. p. 85. Ibid. (1961) All N.L.R. 269. (1981) 2 N.C.L.R. 358.

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recently highlighted lies in being a potential weapon against abuse of power in high places and that "denial of access to court would lead to precincts of tyranny, dictatorship, fascism and in the fore sable future, anarchy".36 Hence Lord Denning asserted: ... these courts are open to any citizen who comes and complain that the law is being broken. So far he has proper case for consideration we will hear it. No one shall forbid him access. He is not to be turned away on some technical objection about locus standi.37 Also, one cannot be oblivious of the challenge posed by the doctrine of ripeness and that of judicial interpretation of status when it comes to judicial review of delegated legislation. It is a well known fact that the review an action of an administrative body by court calls for interpretation of the enabling status. Such a review may be sought before the legislation in issue is enforced or thereafter. Where the formal is the case a litigant is expected to cross hurdle of doctrine of "ripeness" among other requirements. The gist of the doctrine is that in order that the case may be `ripe' for judicial consideration, it must involve issues which are real, present or imminent and not those which are abstract, hypothetical and remote. Several attempts to seek reviewed of delegated legislation have been frustrated by courts as a result of using this doctrine.38

36. See Femi Falana: The Effect of Locus Standi on Access to Justice: EPunch 8/3/2006. 37. Gurret v. UPW 1971 QBD 730-731, Pp. 763 ­ 772. 38. For instance, see the case of Abbot Laboratories v. Gardner, 387 U.S. 137 and Toilet Goods Association v. Fardner (1967) 875, Ct. 1520.

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On issue of interpretation of statute, it is a well known fact that the court has to look for the true intent of the empowering Act by interpreting the power confined on the administrative authority. This is predicated on the fact that delegated legislation involves only the exercise of powers conferred by the Act of legislative, except where the power is derived from the common law. Even so, it must be exercise lawfully. The declaration of Tony Blair's security policy put in place in the name of terrorism orders in the wake of terrorism in Britain in 2006 as unlawful is very instructive in this regard. The foregoing notwithstanding, occasion where the decision of the court has been found wanting in the performance of this arduous statutory task cannot be ruled out. Suffice to say there are pletorial of cases which underscore this, striking among them is the matter of Awolowo & Ors. v. Federal Minister of Internal Affairs and Anor.39 Therein, the plaintiffs who had been charged with treasonable felony contrary to section 41(b) and conspiracy contrary to section 518(6) of the Criminal Code had retained the service of a British subject, E.F.N Gratiaen Esq. Q.C. who was resident in the United kingdom as counsel to come to Nigeria for the purpose of defending them, having enrolled at the Nigerian Bar in 1959 to practice as a legal practitioner in Nigeria. He, on getting to the airport, was however refused entry into Nigeria by an immigration officer acting on the directive of the Minister of Internal Affairs, despite the fact that all his papers were in order. According to the defendants, Mr. Gratiaen was refused entry on the grounds of the authority vested in them under section 13 of the Immigration Act, since Mr. Gratiaen is not a Nigerian citizen. The aforesaid administrative directive prompted the plaintiffs complaints that the refusal to admit Mr. Gratiaen

39. (1962) L.L.R. 177.

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into Nigeria to defend them is prejudicial to their best interest as their liberty is in jeopardy and that by so refusing, the defendant has deprived them of their right to be defended by a counsel of their choice as provided in section 2(5)(c) of the 2nd Schedule to the Nigerian Constitution Order in Council, 1960. It was further argued that the refusal amount to a denial of their constitutional rights, maliciously and without just cause, having regard to the fact that on three different occasions between 1961 and 1962 non-Nigerian counsel from United Kingdom have been allowed entry into Nigeria for the sole purpose of appearing and conducting cases in court for the persons who were involved in such cases. Pursuant to this, a declaration and injunction were sought by the plaintiffs in terms of writs of summons filed by them. It was also the contention of the plaintiffs counsel that all exercise of executive power must be subject to, and be directed towards the maintenance of the Constitution and therefore towards securing for the benefits of the citizens the right enshrined therein. Any exercise of ministerial power which makes it difficult for the citizens to benefit to the fullest extent from any of the provisions of the Constitution must be considered ultra vires and therefore inconsistent with the Constitution, the counsel further argued. In examining the submissions of both parties, the court considered the two laws in issue i.e. section 13 of the Immigration Act and section 21(5)(c) of the Constitution. The Acts go thus: Notwithstanding anything in this Ordinance contained, the Governor-General may, on his absolute discretion, prohibit the entry into Nigeria of any person, not being a native of Nigeria. Whereas the Constitution states that:

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Every person who is charged with a criminal offence shall be entitled to defend himself in person or by legal representatives of his own choice. On the foregoing statutory provision, the court held that there can be no question that under the Act it was incompetent for the first defendant to so direct. And that the first defendant acted within the scope of powers conferred on him under section 13 of the Immigration Act when he directed that Mr. Gratiean or any other counsel not a Nigerian cannot be granted entry into Nigeria. Hence, his action is held intra vires of his powers. It was stressed further by the court, that it appears that the legislature having enacted that it is lawful for the first defendant in his absolute discretion to prohibit a certain class of persons from entering Nigeria, it cannot be said that what the legislature has authorized is unlawful and therefore actionably wrong, unless it can be shown. On the provision of section 21(5)(c) of the Constitution, the court held, inter alia that since the Constitution is meant for Nigerians and runs in Nigeria, the natural consequence of this is that the legal representation contemplated in the section ought to be a Nigerian and the section is not intended to be invoked in support of the expensive undertaking of importing lawyers whether British or otherwise into Nigeria. Therefore, any legal representative chosen must not be under a distability of any kind, the court further observed. In view of the purported limitations of the provision of section 21(5) of the Constitution highlighted by the court, the plaintiffs were invariably refused the declaration and the injunction sought. It is important to state that this decision has been severely criticized on the ground that the constitutional

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provision and the law in issue should have been interpreted in favour of whose liberty is at stake. The same was adopted by the Supreme Court decision in Chief Adolo Okotie-Eboh v. Chief James Ebiowo Manager,40 where the apex court held that: It is also a recognized principles of interpretation of statutes which encroached on the rights of the subject whether as regard personal or property ... contained as penal laws fortissimo contra preferences, ... must be interpreted strictly in favour of the subject. But the court seems to be charting a new path from the above case as seen particularly in the case of Action Congress (AC) v. Independent National Electoral Commission (INEC), where the court overruled the decision of INEC barring the erstwhile Vice President Atiku Abubakar from contesting in the April 2007 election. Conclusion Certainly, the idea of delegation of law making powers to administrative bodies has come to stay. But this does not discount the fact that it is a negation of the theory of separation of powers. And to say consequence of this is the abuse of power is but saying the obvious. There is no doubt that the realization of this informed the creation of various control mechanism including the three organs of government among others. But as it has been earlier noted, one thing is the establishment of these controlling bodies, their efficacy is entirely another. In an attempt to examine the control mechanism, certain facts become manifest.

40. Reported THISDAY Tue. Jan 11 2005 p.42.

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As a way of control, while the legislature is empowered under the law to review any delegated legislation, the power of the executive lies in its ability to hire and fire any member of an administrative body. On the other hand, the judiciary can be moved, subject to the limitation of "locus standi" and "ripeness" by any individual to nullity an offensive delegated legislation. Two, it has however been observed that the challenge of legislative control hinges essentially on the need to enhance the educational background of its members and how to avoid their unholy alliance with the administration. In the same vein, the executive control seems comparable to closing a stable when the horse has escaped. The efficacy of the judiciary in this regard however appears undisputable. This however, does not suggest the absence of any watershed. Can one be oblivious of the injustice occasioned by court's seemly improper interpretation in the aforementioned case of Chief Obafemi Awolowo v. Minister of Internal Affairs? Or the rigid adherence to the principle of locus standi in Senator Adesanya's case? Let alone, the ambiguity which shrouded the decision in A.G. Lagos State v. A.G. Federation.

Recommendations Given the disdainful consequences of delegation of powers to make law and since human ingenuity is yet to fashion out a substitute for it, all hands must be on deck to ensure compliance with rules and all regulations guiding its exercise. The centrality of the three organs of government in achieving this cannot be overstressed. On the part of the legislature, its potency in achieving this first depends on ingrained tradition of competency, transparency, literacy and commitment to duty. As such, the need for higher education, employment of

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special assistant for committee works and adequate remuneration becomes paramount. On executive control, appropriate power of sanction must go with power of control as anything to the contrary remains a facade. However, the situation as obtained in section 173(4) of the 1999 Constitution must be avoided as it appears to be a double edge sword. As already noted, the judiciary appears more animated in controlling the powers of administrative bodies. This notwithstanding, it must not only divest itself on unnecessary self-limitation of adherence to the doctrine of locus-standi, but must also discard the idea of unnecessarily shielding the executive through improper constitutional or statutory interpretation and ambiguous judgment among others. Similarly, the independence of the judiciary must be enhanced by, among other things, paying the salary of judicial officers from the first line charge. In the final analysis, if good governance has become a modern day desideratum, the fact must be grassed by all and sundry that except and unless to the extent the foregoing recommendations are taken as vital, all efforts to set effective limit on administrative legislation in this country may remain a mirage.

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