In Nigeria, as in most countries, there is no rigid application of the doctrine of separation
of
powers in the constitutional practice or government framework. Administrative adjudication is one of the exceptions to the doctrine of separation of powers. Indeed, just as the complexity
of modern government has made it necessary to delegate power to the executive or administration to
make delegated legislation, so also the administration has had to take on some of the traditional judicial functions of the court and sit as tribunals, panels, or commissions and boards of inquiry and so forth and adjudicate on any matter, look into matters of administrative law, or perform
such other functions as may be assigned to them, subject to the legal and legitimate criteria
prescribed by law.
Administrative adjudication
involves the exercise
of discretion, that
is to say,
the ability of
individual administrators in a bureaucracy to make significant choices
affecting management and operation of programmes for which they are responsible.
Again, administrative adjudication is subject to the control of the legislative, executive and
judicial arms of government. The control
of
administrative adjudication, that is, the control of
tribunals, commissions of enquiries, panels and other such bodies is mostly judicial by the courts
at
the application or suit of an aggrieved party. This is otherwise known as judicial
review. Through the instrumentality of judicial control
of administrative adjudication, the court examines the powers and actions of the relevant
adjudicatory body.
It is in the light of the foregoing that this essay argues that the distinction between
administrative
adjudication and judicial
review
is akin
to a mile and a hundred
kilometers. In other words, there is a huge difference between the two concepts.
The Concept of Administrative Adjudication
Administrative adjudication
is the process used by an administrative agency to
issue regulations through
an adversary
proceeding. Administrative adjudication has developed all over
the world and there exists all kinds of
administrative adjudication in different countries. Such
adjudicatory bodies may therefore be set up by government under statute as
the need arises and be
charged with the duty to
exercise judicial,
quasi judicial and or other functions as may be conferred on them by statute or by the terms
of
reference given by the authority setting it up.
An administrative tribunal is a body outside of the hierarchy of regular
courts. They are usually established under specific legislations and charged
with the investigation, hearing or decision on matters in dispute, especially
matters arising from; public administration, controversies which require
specialized knowledge or experience, for instance, the assessment of
compensation for land acquired by government for public purposes, disputes
which are thought unsuitable for the regular courts to adjudicate.
Many administrative bodies have a standing administrative adjudicatory body, or do set up and administrative adjudicatory body, from time to time, to meet for instance their in-house need for regulation, standard and discipline and so forth as the case may be. Included in this category
are chartered professional bodies which have been established to project such professions, train personnel and also to maintain standard amongst their membership.
Furthermore, apart from administrative tribunals or similar bodies set up under, the administrative machinery all over the world, in its day
to day function and performance of their duties do adjudicate or make one type of
determination or decision, to act one way or the other,
which determination or decision may affect the rights or interest of concerned individuals or groups.
Some
of
these decisions
may be
purely administrative or discretionary
for which affected parties may or may not readily have a remedy.
The Concept of Judicial Review
The control of administrative adjudication by the legislature or by the executive arms of government is not as common as judicial review or control. Judicial control of administrative
adjudication or of administrative bodies and their powers, actions and
omissions generally, is better known as judicial review. By judicial review, we mean a court’s power to review the actions of other branches or levels of government; especially the
courts power
to invalidate executive and
legislative actions as being unconstitutional.
The concept of judicial review is geared towards the promotion of
the ideals of
rule of law,
independence of the judiciary, human rights and indeed social justice in our body politic.
It is
important to emphasis that the judicial review of administrative decisions is
concerned only with the legality of those decisions. Judicial review is not
concerned with the general merits of the decision under review, in the sense of
whether the decision was the correct or preferable decision. The Court will
only be concerned with factual issues to the extent that a breach of the law is
said to have occurred in the determination of the facts. Further, in conducting
a judicial review, the Court will only be concerned with policy to the extent
that it is said that the application of any particular policy contravened the
law. If the decision maker complied with the law in arriving at his or her
conclusion, the Court has no power to intervene.
The
judicial
review
of administrative
decisions is
a
compendious description of the process whereby
a Court determines whether or not decisions having an
administrative character comply with the requirements of the law. The process includes the remedies the Court should
provide in consequence of any noncompliance with the
law. The
law
relating
to “Judicial
Review” includes both the “substantive” law and the “procedural” law.
The substantive law
governs the acts or omissions in question and the grounds upon which the Court
can review those acts or omissions to determine whether or not they comply with
the law. On the other hand, the procedural law includes the practices and procedures
of the Court in undertaking such a review, together with the remedies available
to a Court in the event the law has been contravened.
Judicial control or review is the more common, frequent and familiar source of redress for aggrieved parties. One main reason for this is that either the legislature or executive may be the
one that set up the tribunal, to perform
the judicial or quasi judicial duties it is doing and it may
therefore be reluctant to upset or vary the tribunal’s finding, so that through the tribunal’s finding
it
will be able to achieve its set policy objective, whether or not such objective is for public good or a hidden selfish agenda.
Generally, a High Court and other superior courts are superior to a tribunal, and may
therefore control a tribunal or other similar bodies by reviewing their findings. Affirming this
view in the Supreme Court case of Arubo v.
Aiyeleru, (1993) 3 NWLR (Pt. 280) at 145 SC, Nnaemeka Agu JSC
opined as follows:
A tribunal of inquiry is inferior to both the High Court and the
Supreme Court which are vested by the constitution with unlimited powers to adjudicate on the rights of parties who appear before them
and see to the execution and enforcement of their decision. Consequently, once a party gets a final judgment in his favour before a court of
competent jurisdiction, such a judgment is effective, conclusive and binding on the parties and their privies and can only be upset on appeal and a tribunal of enquiry not being an
appellate court, is incompetent to review, overrule, or set aside
such a judgment.
Therefore, in the exercise of its powers of
review, a High Court may issue an order of
prohibition to stop a tribunal from entertaining a matter, or it may issue an order of certiorari in order to review the decision of a tribunal and so forth.
Conclusion
From the foregoing, it is clear that administrative adjudication and or statutory tribunals
are an
integral part of the machinery of justice and
not merely administrative agencies
for disposing of allegations
or cleverly and conveniently putting to rest burning issues
of
the moment.
It is also clear that the need to control the powers of administration is dictated by
the dangers
associated with such powers.
In
fact, the risks of abuse are incidental to the exercise of administrative power and it is
believed that safeguards are required if the country is to continue to enjoy
the advantages of the rule of law without suffering from
its dangers, hence judicial review. Accordingly, the distinction between
administrative
adjudication and judicial
review
is akin
to a mile
and
a
hundred kilometers.
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