UNIVERSITY OF IBADAN, IBADAN

FACULTY OF LAW
DEPARTMENT OF PUBLIC LAW

COURSE TITLE: LPU 510: ADMINISTRATIVE LAW I (1ST SEMESTER

LECTURE NOTE)

Lecture Note prepared by Dr. S. Akinlolu Fagbemi (Reader), FIPMD, AISDS, AICMC

Synopsis/Course Contents

1 (a). General Introduction

(b). Nature, Scope and Sources of Administrative Law
(c). Administrative Agencies and Procedure
2. Relationship between Administrative Law and some Constitutional Concepts: The Rule of Law,
Separation of Power, Ministerial Responsibility and Constitutional and Parliamentary Supremacy.
3. Classification of Powers: - Nature and scope of powers
4. Delegated Legislation: - Its nature, forms, making and control.
5. Review of Exercise of Discretionary Powers.

Objectives of the Course

To introduce student to Administrative law

To expose student to the nature, scope and sources of Administrative Law
To discuss administrative agencies and their internal working arrangements
To introduce students to various constitutional concepts and their relevance to
administrative law and governance
To discuss the importance of delegated legislation and control mechanisms
To expose students to judicial control of administration
To expose students to methods and grounds for judicial review of administrative actions
To highlight the remedies available for administration maladministration and procedures
To discuss the modalities for taking action against government and its agencies

Recommended Textbooks/Reading Materials

1. Okany. M. C. Nigerian Administrative Law. (Onitsha, Nigeria: African First Publishers.

Africana Academic, 2007).
2. Ese Malemi: Administrative Law, 4th Edition, (Ikeja: Princeton Publishing Co., 2012).
3. Iluyomade, B. O. and Eka, B. U. Cases and Materials on Administrative Law in Nigeria
(Ile-Ife: University of Ife Press, 1980).
4. Hood Phillips, Constitutional and Administrative Law, 3rd edition
5. Prof. Oyelowo Oyewo, Modern Administrative Law & Practice in Nigeria
(Lagos: University of Lagos Press & Bookshop Ltd., 2016).
6. Constitution of the Federal Republic of Nigeria, 1999 (as amended)

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TOPIC 1. NATURE, SCOPE AND SOURCES OF ADMINISTRATIVE LAW:
ADMINISTRATIVE AGENCIES AND PROCEDURE

Introduction.

Administration is indispensable for the organisation, management and achievement of the

goals and objectives of any unit of people, business, department or body. As a matter of fact,
without administration, the business or purpose of any unit of people would probably be in
disarray or grind to a halt.

In view of the necessity of administration, every country, unit of a country, organisation or

community of people usually set up a government or some form of administration to manage
its affairs and objectives and to see to its welfare.

The administration in managing the affairs and objectives of any given unit of people or
body, makes policies and takes decisions. It implements the decisions or objectives of the
unit of people or government. In the course of these, the administration may infringe on the
rights and interests of a person or group of persons. Therefore, unless the law regulates the
functions and actions of administration, it may be unruly and an aggrieved person or persons
may be without remedy. Conversely, if the law does not recognise the role, functions and
power of administration, the objectives of government or of any given unit of people would
not be achieved. The need for the above has given rise to a body of law classified as
administrative law.

Administrative law is part of public law and derives its sources from other areas of public
law and other disciplines in humanities such as: constitutional law, public administration and
political science, especially on state, government, administration, institutional processes,
among others. It has also derived benefits from concepts, principles and theories from public
law and other disciplines.

Due to the closeness of administrative law and constitutional law, there have been a lot of
confusion on the nature and scope of Administrative Law. This confusion is premised on the
overlapping nature of the subject with the Constitutional Law, particularly in countries
operating Unwritten Constitution. Hence, there is no ‘bright line’ demarcating administrative
law from constitutional law. As a matter of fact, many constitutional law cases are also
administrative law cases. Similarly, administrative law and constitutional law focuses on the
same subject matter of the rule of law, which is a constitutional law concept, and apart from
this, both subjects also deal with government, its agencies and the citizen. However, despite
the seemingly overlapping/interwoven relationships between the constitutional and
administrative laws, the two subjects are not the same.

Nature of Administrative Law

From above explanation, the nature of administrative law can be summarised as follows:

1. It is the law that regulates administration.

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 2. It regulates the powers and duties of government and administrative authorities, and
provides remedies for mal-administration and other administrative wrongs. In the case
of Stich v. A. G. Federation (1986) 5 NWLR 1027 at 1030, it was held that
administrative law relates to the discharge of functions of a public nature in
government and administration.

3. It deals with the organisation, functions, powers and procedures of government and
administrative authorities.

4. It regulates the relationship between, or among various governments, administrative

authorities and agencies.

5. It deals with the rights and remedies of person affected by administrative powers and
conduct.

Definitions of Administrative Law

There are several definitions of administrative law from different jurisdictions and among
authors. The best way to appreciate the definition of administrative law is to compare it with
constitution law. This is necessary due to the intimate relationship existing between the two
subjects. In this context, the following definitions have been offered by authors:

1. Maitland believed that: - “---- while constitutional law deals with the structure of
Sovereignty. Administrative law deals with functions”

2. Wades and Phillips: - “Administrative law is a branch of public law which is

concerned with the composition, powers, duties, rights, and liabilities of the various
organs of government, which are engaged in administration”.

3. Prof Wades in his book: “Administrative Law” further contended thus:-

“Administrative law is concerned with the operation and control of the power of the
administrative authority with emphasis on function rather than structures”.

4. Bernard Schwartz: - “Administrative law is that branch of the law which control the
administrative operation of government. It sets forth the power which may be
exercised by administrative agencies, lays down the principles governing the exercise
of those powers and provides legal remedies to those aggrieved by administrative
actions”.

5. Sir William Ivor Jennings: “Administrative law is the law relating to the
administration; it determines the organization, powers, and duties of administrative
authorities”

6. K. C. Davis: “Administrative law is the law concerning the powers and procedures
of administrative agencies

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From the above definitions of administrative law, the distinguishing factors between
administrative law and constitutional law could be summarised as follows:

Similarities
Administrative law and constitutional law are closely related and similar in the following
respect.
1. Principles, rules and maxims
2. Statutes
3. Case law or judicial precedents
4. Remedies
5. Application of constitutional law and powers and the administration thereof.

Dissimilarities.
The dividing line between administrative and constitutional laws is thin, though, each is a
complete body of law. However, the differences between the two can be seen from the nature
of each and they are summarised thus.

Administrative law
1. It is the law that regulates administration
2. It regulates the organisation, powers and duties of government authorities
3. It regulates the procedure of administrative agencies,
4. It provides remedies for administrative acts

Constitutional law
1. It is the organic, fundamental and supreme law of a nation or state;
2. Due to its supremacy, all laws contrary to it are null and void and of no effect. See
section 1 (3) of the 1999 Constitution (as amended);
3. It may be written or unwritten;
4. It stipulates the concept and structure of the government of a given nation or state;
5. It lays down the basic provisions which will govern the internal life of a country;
6. It assigns and limits the functions of different authorities and departments of
government.

Scope of Administrative Law

Administrative law, as discussed above directs greater attention to the control and regulation
of government powers by both public and private bodies. This could also be seen through
the workings of the various extra-judicial appeals and complaints procedures created to
supplement the judicial and political mechanisms for dealing with individual grievances
against the state. To this end, the scope of administrative among others include.
1. The organisation, functions and powers of administrative authorities.
2. Public administration and the civil service in various tiers of government: public
bodies, institutions and agencies.
3. Delegation of powers and delegated legislations.
4. Administrative adjudication and the right to fair hearing.
5. Judicial remedies, and factors affecting judicial review of administrative acts.
6. Suits against government, its servants and agencies and the liability or otherwise of
public officers to adjudicative processes. See section 2 of the Public Officers’
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 Protection Act. Cap P14, LF 2004. See also the case of Awolola v. Governor of Ekiti
State & Ors (2018) LPELR 46346 SC at pp 47-50; Salahudeen & other V Ajibola &
Ors (2019) LPELR (CA) at pp. 37-39

Functions of Administrative Law

Flowing from the above discussion, the functions of administrative law in modern
administrative and regulatory state becomes imperative. For instance, the state is operated
by a government with several functionaries, ministries, departments, agencies, institutions,
parastatals and authorities etc. The functions of administrative are as follows:

1. Administrative law enables the tasks of government to be performed. For

example, the ministries, departments, agencies and the likes are created by law and
vested with power to carry out the implementation of laws and public policies or
government objectives on behalf of the state or government, and in general specific
interest of the public. Several administrative agencies are established at the Federal
and State levels of governance in Nigeria to implement government policies.
Examples are: National Agency for Food and Drug Administration and Control
(NAFDAC), Federal Road Safety Commission (FRSC), Federal Inland Revenue
Service (FIRS) and National Drug Law Enforcement Agency (NDLEA).

2. Administrative law governs the relationships among various public agencies and
their functionaries visa vis individuals, private bodies, or corporate legal persons.
The relations among various public agencies are governed by law, especially the
enabling law establishing such agencies. The purpose of these is to minimise or
prevent conflicts among the various agencies of government.

3. Administrative law embodies positive principles to facilitate good administrative

practice, which include ensuring adherence to rules of natural justice (fair
hearing) in all administrative adjudication processes or proceedings. For
instance, the rule against delegation without authorization checks abuse of rule-
making powers. Similarly, the principle of natural justice is to ensure fair hearing and
justice in adjudicative processes. The principle of natural justice finds expression in
the twin pillars of justice namely: nemo judex in causa sua and audi alteram partem.
See the case of Isiyaku Mohammed v Kano Native Authority (1968) 1 ALL NLR 424.

4. It formulates and secures redress or remedies for any person who has suffered
injury for any breach in the exercise of any governmental power by an
administrative agency. For example, prerogative remedies – mandamus, prohibition,
certiorari and habeas corpus. There are also various common law and equitable
remedies such as declaration, injunction damages and apology etc.

5. It operates to provide for transparency, accountability and good governance at

all levels of governance within the Nigerian Federation.

6. Administrative law provides the necessary framework for interaction between the
administration and the general public, thereby providing a medium for the assessment

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 and reform of administrative processes and procedures, especially equality of the
services delivery being rendered by the civil or public service to the general public.

SOURCES OF ADMINISTRATIVE LAW.

Introduction.
The concept of the source of law is generally used in various senses. First, it means the
ultimate origin of the whole body of a legal system i e the origin from where the system
derives its validity, be it the electorate, special body, the general will or the will of the
dictator. Secondly, the term is used to mean the historical origin of a rule of law. Thus, the
common law is historically the source of English law and the origin of many rules of English
Law and principles traceable to common law. Thirdly, the term means material containing
fundamental rules of law. In this sense, it includes Statutes books, law report and textbooks.
A source in this sense is said to be a literal source. Fourthly, source of law means the
fountain of authority of a rule of law, that is, the origin from which a legal rule derives its
authority. In this sense, a source of law is a legal source. Examples of legal sources are
legislations and judicial precedents. Premised on the foregoing, the sources of
administrative law are as follows:

1. Constitution
In Nigeria, constitution is the grundnorm upon which all other laws are premised, Nigeria
operates a written Constitution, and it is from the Constitution that all other laws or statutes
derive their authorities or powers. See Section 1 (1) and (3) of the Federal Republic of
Nigeria Constitution, 1999, which provides as follows:

1. (1). This Constitution is supreme and its provision shall have binding force
on all authorities and persons throughout the Federal Republic of Nigeria;
(2). -----------------------
(3). If any other law is inconsistent with the provisions of this Constitution,
this Constitution shall prevail, and that other law shall to the extent of the
inconsistency be void”.

The relationship between the Constitution law in Nigeria and administrative law as could be
seeing above clearly demonstrate this point. Hence, the major source of the administrative
law in Nigeria is the constitution itself after which we can refer to other local legislations.
See the case of Yantaba & Ors v. Governor of Katsina State & Ors (2021) 10 SCM 147 at
177/178. It was held that ‘The supremacy of our Constitution is evidently contained in section
1 of the Constitution (supra). This court has in numerous decisions re-echoed the supremacy
and overriding effect of the Constitution of the Federal Republic of Nigeria (1999) as
(amended) ….. Section 7 (1) of the Constitution guarantees a system of Local Government
by democratically-elected Local Government Councils. Section 81A of the Katsina State
Local Government Law 0f 2000 (as amended) does not have such guarantee, rather it allows
the Governor of the State or the State House of Assembly, subject to the approval of the
Governor, to remove from office, democratically-elected Local Government Councils,
instead of ensuring their existence. There can be no doubt after reading section 81A (supra),
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that Local Government Councils may be dissolved at any time before the expiration of the
tenure. Any law on Local Government made by Katsina State or any other state must make
provisions within the limits of the provision of the Constitution. Provisions of the
Constitution must never be exceeded. Where the provision of State legislation, in this case,
the Katsina State Local Government Law, 2000 (as amended) is inconsistent with provisions
of the Constitution, the provision of such law is invalid, and the law itself is to that extent
invalid. Section 3 (1) of the Constitution (supra) stated in clear and unequivocal terms that
any law that is inconsistent with the Constitution is void to the extent of its inconsistency and
the Constitution shall prevail. See further the following cases – Kalu v. Odili & Ors (1992)
LPELR – 1653 (SC) and Olafisoye v. FRN (2004) LPELR – 2553 (SC).

2. Legislation.
This consists of rules of law made by parliament either directly in the form of statute
(sometimes referred to as ‘primary legislation’) or indirectly by those other authorities on
which parliament has conferred power to legislate (delegated, subordinate or secondary
legislation). It has been said that legislation is now the most important sources of
administrative law. To the extent that this is so, it would tend to undermine many of the
notions that the United Kingdom does not have a constitution in the formal written sense.

Legislations in this regard consist of Statutes and subsidiary legislation; statutes are laws
enacted by the Legislative arm of government. Subsidiary legislation/instrument/delegated
legislation is law enacted in the exercise of powers given by statute to legislative arm of
government. Subsidiary legislation usually consists of rules, orders, bye-laws and others
instruments made under the authority of statutes to give effect to the main legislation. A
statute is usually referred to as the principal legislation in a later statute amending it. A statute
under which subsidiary legislation is made is referred to as an enabling statute. More
importantly, legislation constitutes the legal sources for the creation and establishment of all
administrative institutions, authorities and agencies refer to as executive.

3. Judicial Decisions/Case Law.

The judicial contribution to the formation of administrative law is performed through
interpretation of statutory provisions having to do with the process of government and by the
declaration and development of relevant aspects of the Common Law. The modern judicial
approach to statutory interpretation is to seek to give effect to the literal meaning of the words
used by the parliament except where this would produce an absurd result or is not possible
due to uncertainty or ambiguity. See the following cases: Savannah Bank of Nigeria Ltd v.
Ajilo (1989) 1 SC (Part II) 90 at 146; Tukur v. Governor of Gongola State (1989) 9 SC 1
at 83/84; Uhunmwangho v. Okojie (1989) 12 SC 142 at 156; Araka v. Egbue (2003) 7 SC
75 at 85-86, 88; Federal Republic of Nigeria v. Ifegwu (2003) 9-20 SC 128 at 145;
Ibrahim v Mohamed (2003) 2 SC 127at 138; Gafar v. Kwara State & Ors (2007) 4 SCM
110 at 134-135; Global Excellence Communications Ltd v. Donald Duke (2007) 12 SCM
(Pt.2) 324 at 341 Per Niki Tobi and Peter Obi v. INEC & Ors (2007) 8 SCM 83 at 126 Per
Aderemi JSC.

In these circumstances, the usual expectation is that the provision in question will be given
a meaning which is compatible both with its linguistic contents and the purpose which
appears it was designed to achieve. To assist in this sometimes difficult task, judges may
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resort to a number of interpretative presumptions i.e. normative judicial suppositions of
parliamentary intention, some of which are of particular significance to constitutional and
administrative law. These would include the presumptions that in the absence of express
words or necessary implication Parliament do not intend to:
(a). alter the existing rights and privileges of the Crown;
(b). reduce or extinguish the pre-existing rights of the citizen;
(c). impose any taxation;
(d). restrict the citizens access to the courts, or exclude the power of judicial review;
(e). give retrospective effect to penal enactments;
(f). extinguish proprietary rights without compensation; and
(g). alter the constitution by a ‘sidewind’ (i.e. effect major changes indirectly or
surreptitiously).

4. Common Law
This consists of rules of law formulated to deal with those disputes for which there are no
statutory prescriptions. This remains a significant source of law in relation to certain
elements of the constitutional and administrative law. For instance, various common law and
equitable remedies.

Originally, in the middles ages, the common law meant the law that was common to the
whole of England, as oppose to purely local systems. But long ago, these local systems have
disappeared, and for centuries, the phrase ‘common law’ has meant the basic law of the land
which was developed by judges of the old common law courts. Its distinctive character is
that it is almost entirely a development of the judges, its principles are to be discovered in
previous cases, and not in a comprehensive code.

Since the common law is essentially a system of rules abstracted from cases, it involves the
notion of precedent. A court declared a rule in order to determine the case before it. But the
slate is not wipe clean, so as to speak as soon as the judgment is declared, for the case remains
a precedent for the rule applied in it, and as such should be followed by a judge in a later
case upon the same point.

5. The Received English Law

The received English law has always been a source of law, administrative law inclusive, in
Nigeria. These are English laws foisted upon Nigeria through what is known as ‘reception
clause’. The received English law are statutory provisions as oppose to common law of
England and imported into Nigeria by British colonial rule as part of statute of general
application (SOGA). The first reception clause was contained in Ordinance No. 3 of 1863
that fixed the reception date for the received English Law ‘enforced within the realm of
England on the 1st day of January, 1863. Subsequent enactments extended the date to 1st
January, 1900 and brought to Nigeria to form part of Nigerian law particularly where there
is no local law addressing the matter. See section 32 of the Interpretation Act Cap 123 LFN
2004

These received common law, doctrine of equity and statutes of general application have long
formed part of Nigerian administrative law. Similarly, the common law doctrine of natural
justice encapsulated in the twin maxims of audi alteram partem and nemo judex in causa
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sua continue to play a fundamental role in the development of administrative adjudication
complimentary to the constitutional fair hearing principle.

6. Customary Law.

These are customary rules evolved by the indigenous people to administer justice before the
advent of the received law. The rules are very potent and used to control indigenous people
and the ruling class. For instance, a traditional rulers and Oba are very powerful in the
Western region of Nigeria. However, they could be asked to abdicate the throne when their
acts are becoming inimical to the welfare and progress of their subjects. Good example is
the old Oyo Empire where the power of Alaafin (Iku Baba yeye, Alase ekeji Orisa) could be
checked by the Oyo Mesi.

ADMINISTRATIVE AGENCIES AND PROCEDURES

Definition
According to the US Federal Administrative Procedure Act 1946, an Administrative Agency
means ‘each authority … of the Government of the United States other than the Congress
and the Courts’. In other words, it means a body constituted by the executive arm of
Government with mandate to perform specific duties. For instance, an Administrative
Agency may be a Commission, Board, Authority such as the Nigerian Ports Authority,
Bureau, Office, Department, Corporation, Division of government by whatever name called.
Agencies that are expressly created by the Constitution have their powers and functions
codified in the Constitution. See for instance, Code of Conduct Bureau, National Population
Commission and Independent National Electoral Commission etc.

The powers and functions of Statutory Agencies are to be found in Enabling Acts. Some
Administrative Agencies are found almost everywhere – at the Federal, State and Local
Government levels. They do the work of the legislature as they are authorised to make certain
Rules and Regulations, judicial work – by being empowered to determine whether or not the
law has been violated and to impose penalty as appropriate. They also do executive jobs like
conferring privileges on persons or Institutions they deem worthy.

Administrative Powers
Administrative Powers are defined as discretionary powers of an executive arm of
government that are conferred by legislation on government Ministers, Public and Local
Authorities, other Bodies and persons for the purpose of giving detailed effect to broadly
defined policy of government such as powers to acquire land compulsorily, to grant or refuse
licences or consent and to determine the precise nature and extent of services to be provided.
They are simply exercised by Administrative Agencies.

Sources of Administrative Powers

The powers exercised by Government and administrative Agencies may be classified into
three namely:

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 a. Express Powers
Given by the Constitution, Statute or Subsidiary legislation, e.g Sections 4-6 1999 CFRN
which give powers to the legislative, executive and judiciary arms of government.

b. Incidental Powers
This is a power which is not expressly granted, but which is necessary for the
accomplishment of expressly granted powers. It is a power to do things which are ancillary,
related, subordinate, incidental to or providing support to express power, duties, functions.
For example, a small agency established to grant soft loans to individuals has a duty (even
though not expressly empowered by Statute) to demand and receive collaterals for loans
given. Any act done by a Public authority which is not express or incidental power is usually
held to be ultra vires, null and void and of no effect by the Court. See Ekemode v. Alausa
(1961) 1 All NLR 143.

c. Implied Powers
This is a power which a person assumes rightly or wrongly. Many times, implied power is
usually ultra vires. Implied powers depend on imagination which may be stretched too far.
Therefore, it is always better for power to be expressly granted or incidental to an express
power.

Examples of Constitutionalized Administrative Agencies

Section 153 (1) of CFRN 1999 as amended directly creates the following Bodies:

a. Code of Conduct Bureau

b. Council of state
c. Federal Character Commission
d. Federal Civil Service Commission
e. Independent National Electoral Commission
f. National Defence Council
g. National Economic Council
h. National Judicial Council
i. National Population Commission
j. National Security Council
k. Police Service Commission
l. Revenue Mobilization, Allocation & Fiscal Commission

Section 160 (1) & (2) of the Constitution highlights the powers and procedure of the above
administrative agencies. For instance, the powers of the three of these agencies are
considered briefly bellow.

1. Code of Conduct Bureau

This agency consists of a Chairman and nine other members. It is empowered in the
Constitution to
i. Receive asset declarations by Public Officers
ii. Examine the declarations in accordance with the code of conduct or any law

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 iii. Retain custody of such declarations and make them available for inspection by
any citizen of Nigeria on such terms and conditions as the national assembly
may prescribe;
iv. Ensure compliance with, and where appropriate, enforce the code of conduct or
any law relating thereto;
v. Receive complaints about non-compliance with or breach of the provisions of
the code of conduct or any law in relation thereto, investigate the complaint and
where appropriate, refer such Matters to the Code of Conduct Tribunal;
vi. Appoint, promote, dismiss and exercise disciplinary control over the Staff of the
Code of Conduct Bureau in accordance with the provisions of an Act of the
National Assembly enacted in that behalf; and
vii. Carry out such other functions as may be conferred upon it by the National
Assembly.

CCB was established by the Constitution with the mandate to establish and maintain a high
standard of public morality in the conduct of government business and to ensure that the
actions and behaviours of public officers conform to the highest standards of public morality
and accountability. Part of the duty of the Bureau is to prevent and control corruption among
Public Officers. Hence, any violation of the above stipulations by a public officer is
forwarded to the Code of Conduct Tribunal for necessary action.

2. The National Population Commission

This Commission has the power under section 158 (2) of the 1999 CFRN to
i. Appoint, train or arrange for training of enumerators or other Staff of the
Commission to assist in the conduct of any population census;
ii. Decide whether or not to accept or revise the return of any Officer of the said
Commission concerning the population census in any area or part of the
Federation
iii. Carry out the operation of conducting the census;
iv. Compile its Report on the National Census for publication.

3. The Federal Civil Service Commission

The Commission under the Constitution, the FCSC has the power to
i. Appoint persons to the Offices in the Federal Civil Service
ii. Dismiss and exercise disciplinary control over persons holding such offices.

Statutory Agencies
The National Assembly of Nigeria in its capacity as the law making arm of the Government
has enacted some Statutes which authorised the establishment of Administrative Agencies.
Examples are the Economic Financial Crimes Commission (EFCC) Act 2004, Independent
Corrupt Practices Commission (ICPC) Act 2000 (though efforts are being made by the
current Dispensation to merge the EFCC & the ICPC), and the National Drug Law
Enforcement Agency (NDLEA) Act of 1989. These Statutes respectively established the
EFCC, ICPC and NDLEA. For instance, the NDLEA has the functions under s. 3 NDLEA
Act 1989 to (a) adopt measures to eradicate illicit cultivation of narcotic plants, and (b) adopt
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measures to identify, trace, freeze, confiscate or seize proceeds derived from drug-related
offences or property whose value corresponds with such proceeds. Again, while the ICPC
targets corruption in the public sector, especially bribery, gratification, graft and abuse or
misuse of office, the EFCC investigates people in all sectors who appear to be living above
their means, and is empowered to investigate and prosecute money laundering and other
financial crimes.

Reasons for the Creation of Administrative Agencies

Administrative Agencies are created for the following reasons:
1. To provide certain Goods/Products - e.g The Liquefied Natural Gas (LNG), NNPC,
Nigerian Coal Corporation, Nigeria Tin Mining Corporation;
2. To render certain services – e.g The Nigeria Fire Service, Water Corporation etc.
3. To manage Public Assets or Resources – e.g FAAN, Nigeria Tourism Development
Corporation.
4. To implement a Law e.g CBN Rules on Lending must be followed by Banks,
NAFDAC (for conditions as to quality of products to be consumed)
5. To regulate certain Sector – e.g CBN for banks, Standards Organisation of Nigeria
(SON), FRSC, NAFDAC, CAC (for registration and incorporation of businesses,
NGOs, etc
6. To advise the Federal or State Government through relevant Federal or State
Ministries.

Administrative Procedures
Administration/Administrative process or procedure is a part of all the three branches of
Government. In view of this, it is often argued that Administration is more or less a fourth
arm of Government, which combines the characteristics of the three Organs of Government.
Administrative procedures are carried out independently by Administrative Agencies
because they are the sole Bodies appointed to carry out certain functions on behalf of the
Government. The only thing is that in Nigeria, one can safely conclude that some
Administrative Agencies are not really desirable because they duplicate the functions of
some other Agencies existing before they were created. For instance, the Nigeria Security &
Civil Defence Corps appears to be duplicating the duties of the Nigeria Police Force. Same
applies to the creation of the EFCC and the ICPC. Nigerians only know these Agencies to
be doing the work of the Police. The Federal Road Safety Commission (FRSC) appears to
be doing the same thing too. The National Examinations Council (NECO) duplicated the
functions of the West Africa Examinations Council (WAEC). The NABTEB seems to be
doing so, even though it may claim to be handling examinations for only Technical subjects.
The truth is that the WAEC already sets examinations in these fields as well. The only
justification that can be tendered for the proliferation of these Agencies is that those
originally empowered to perform those duties before new ones were created do not perform
their duties and specified roles very well. For instance, Nigerians believed that there was not
adequate policing and arrest of criminals as armed robbers, assassins always had their way
in most cases and were hardly caught. Therefore, inefficiency is a name tag that has always
been used to identify most Staff of the Nigeria Police Force. In The case of the NECO,
justification may be found for its creation because of the simple fact that the WAEC serves
other West African Countries, and not Nigeria alone. However, one truth is that the WAEC
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has always been able to adequately cater for the increase in demand of those writing its
examinations.
Therefore, to effectively performs its duties, an Administrative Agency usually combines
and exercises all the functions of the three branches of Government which are –

a. Legislative
It may make Rules by virtue of power confers on it under Statute. For example, NAFDAC
is created under Statute to give steps to be taken before certain products produced can be
approved for sale and human consumption. NAFDAC gives criteria for quality of drugs,
canned foods, water, body or hair creams and so many other products before releasing its
number to the manufacturer who will then go and sell in the market.

b. Executive
It may carry out purely administrative duties and execute its own rules.

c. Judiciary
It may perform judicial or quasi–judicial functions, including exercise of the powers of
investigation, inspection, arrest, interrogation, seizure, subpoena, recovery, sanction, etc.
The NAFDAC can get the Police to arrest a person caught selling contraband, poisonous or
substandard goods to the Public. The EFCC can use the Police to arrest somebody reported
for fraud or money laundering. The Nigeria Customs and Excise can arrest an Importer of
contraband goods or a person who fails to pay his customs and Excise Duties. The FIRS can
use the Police to arrest and detain a Tax Evader, etc.

Administration is very important for every unit of people, for the management, promotion
and success of every good human endeavour. Administrative Law enhances administrative
process and performance.

In conclusion, Administrative Agencies are established directly or indirectly by the 1999

Constitution of the Federal Republic of Nigeria, especially in its Section 4 which gives the
Legislature the powers to make Laws, as this includes Laws establishing Agencies. There
are also Constitutionalized Agencies which are expressly created by the Constitution as
highlighted above. Administrative powers are decentralized and shared at different levels of
every democratic government in order for the Government to effectively and efficiently carry
out its duties to the citizens, for there is no way only one or two persons can effectively
govern any country, especially where the population is in millions, without having chaos.
Power has to be shared to Ministries, Departments, Parastatal and Agencies of Government
with specific assignments and functions given to them, and that also makes separation of
powers desirable in every democratic setting. We have the NAFDAC, CAC (Corporate
Affairs Commission), SON (Standards Organization of Nigeria), CBN, FIRS, etc. Each are
assigned with different and very important functions, all in a bid to ensure that the society
keeps moving. Hence, no Parastatal/Agency of Government is over-burdened with duties
beyond its capabilities.

13
TOPIC. 2

RELATIONSHIP BETWEEN ADMINISTRATIVE LAW AND SOME

CONSTITUTIONAL CONCEPTS: THE RULE OF LAW, SEPARATION OF
POWER, MINISTERIAL RESPONSIBILITY AND CONSTITUTIONAL
SUPREMACY.

Introduction
As noted at the beginning of this course, there is no bright line of difference between
administrative and constitutional laws. There are some constitutional concepts which are also
relevant to administrative law. These concepts are indispensable and necessary for the proper
functioning of government and administration. They are sometimes used to determine
administrative acts and duties. Among these categories are doctrines of the Rule of Law,
Separation of Power, Ministerial Responsibility, Constitutional Supremacy and
Parliamentary Sovereignty.

1. THE RULE OF LAW

Introduction
The term ‘Rule of Law’ has today enjoyed a universal recognition and acceptance. As a
matter of fact, governments, the world over, always claim association with it even when
some of them pay mere lip service to its tenets. It is acclaimed because adherence to it, is a
passport to international associations; and no government would yield to the discriminatory
attitude of its real adherents towards non-conformist.

The concept is as old as law itself and its origin or foundation was premised on the theories
of law postulated by philosophical analysists and eminent jurists in the realm of
jurisprudence. For instance, Greek philosophers like Plato, Bracton and Aristotle etc. spent
their lives reflecting on the problems of society and on how best to secure internal peace and
stability for the ultimate protection of the individual in his quiet enjoyment of rights, liberty
and freedoms. Thus, the doctrine of the rule of law was founded on the theories and thoughts
of these early Philosophers.

Meaning of the Rule of Law

The Rule of Law has a number of different meanings and corollaries, which include the
following:

a. The term literally means the government of law, the state of being governed by law
through the agency of man i.e. a regime or government of law as opposed to a
government based on the whims and caprices of man. In summary, its primary
meaning is that everything must be done according to the law of the land.
b. Rule of law at its broadest sense is a framework that constrains arbitrary use of powers
either by government or its agencies.
c. It presupposes that when power is exercised, it should always be subject to the
principle of accountability before the law.
d. It is a set of rule which connotes that private citizen should be allowed to lead their
lives without undue interference from the state and its representatives.
14
Applying the above to the powers of government, this requires that every government
authority which does some acts, which would otherwise be a wrong, must be able to justify
its action as authorized by law. i.e through the Act of Parliament or recognised Legislative
Body. If they are unable to justify such actions any affected person may resort to the Courts
of Law for appropriate remedy or remedies. Thus, every act of government power, i.e every
act which affects the legal rights, duties or liberties of any person, must be shown to have a
strict legal pedigree and if the legal pedigree is found to be imperfectly in order, the court
will invalidate the act. To this end, Aristotle has this to say: “the rule of law is preferable to
that of any individual”.

Bracton, writing in the 13th century, adopted the theory held in the Middle Ages that:

“the world was governed by law, human or divine” and held that, “The king himself ought
not to be subject to man, but subject to God and to the law, because the law makes him king”.

In England, the greatest advocate of the rule of law was Prof. Albert Venn Dicey, a Vinerian
Professor of English Law at Oxford whose lectures were delivered at Oxford and first
published in 1885 under the title: An Introduction to the Study of Law of the Constitution.
10th Edition, (London: Macmillan, 1985) 1-463, has reduced the concept into a tripartite
formula of:

(1) Absolute Supremacy or Predominance of regular as oppose to Arbitrary Power.

It means that government should be conducted within a framework of recognised rules and
principles which restrict arbitrary power. In other words, no man should be punished or made
to suffer in body or goods except for a breach of law established in the ordinary legal manner
before the ordinary courts of the land. Putting this in perspective, Prof. Dicey, opined that.
“English men are ruled by law, and law alone, a man may with us be
punished for breach of law, but he can be punished for nothing else”

What this means in effect is that powers, whatever their extent, must be exercised in
accordance with the ordinary law of the land, and that administrative agent must not possess
discretionary power outside the Act of Parliament, so that, everything that they do must be
within the law- Quod principi placuit legis habit vigorem (the sovereign’s will has the force
of law) is a perfectly legal principle. Many of the rules of administrative law are rules for
restricting the wide powers which Acts of Parliament or laws of State Assemblies may confer
very freely on Ministers or Commissioners or other authorities.

The rules of law demand that the courts should prevent any abuse of discretionary power
especially, when such powers are conferred in excessively sweeping language as to be easily
abused by an overzealous officer. Faced with the fact that parliament freely confers
discretionary power with little regards to the dangers of abuse, the courts must attempt to
strike a balance between the needs of fair and efficient administration and the need to protect
the citizen against oppressive govt.

The position of Prof. Dicey seems to have found favour in the decision of the Court in the
Nigerian case of Agbaje v C.O.P (1969) 1 NMLR 176. In that case, the applicant, Alhaji
15
Mojeed Agbaje alleged that he was unlawfully detained in the Police Station, Ibadan by the
Commissioner of Police as from 31st of May, 1969 to 12th June, 1969. In his affidavit, he
deposed that he repeatedly demanded the reason or authority for his detention, but no one
answered him, his letter to that effect fell on deaf ear. He claimed to have been treated rather
roughly, the C.O.P in defence of their act admitted detaining the applicant as aforesaid, but
relied for his authority on Section 3(1) of the Armed Forces and Police (Special Power.)
Decree No. 24 of 1967. It was held that detention of the applicant under the said Decree was
unlawful and the applicant is entitled to be released. The C.O.P appealed on the ground that
the learned trial judge erred in law in holding that the order under which the applicant was
detained was unlawful. The Court of Appeal held that the C.O.P had no authority under
Section 3(1) of Decree No. 24 of 1967, which he relied upon, to detain the applicant in a
Police Station, the applicant’s detention was therefore held unlawful and the appeal was
dismissed.

In Gouriet v. Union of Post Office Worker (1977) 1 QB 727 at 761, the Court put its weight
behind the rule of law when it held thus: ‘To every subject, in this land no matter how
powerful, I will use Thomas Fuller’s word over three hundred years ago, be you even so
high, the law is above you’.

The importance of the rule of law during the military era as obtained in Nigeria was reiterated
by Taylor C. J. (as he then was) in the case of Re: Mohammed Olayori & Ors. (1969) 2
ANLR 299. The five applicants were at all material times contractors to the Nigeria Army
on 4th March, 1968, 18th November, 1968, 29th November, 1968 and 5th January, 1969. They
were arrested and detained under the authority of the Nigeria Army. They were alleged to
have received money for services not rendered or goods not supplied to the Nigerian Army.
At a subsequent time, the applicants were released “on bail” on what is said to be “an
enforced promised” to pay the money claimed by the Army or part thereof admitted as
Exhibit “A”. The applicants were re-arrested and detained on various dates between 8th and
13th October, 1969, on their failure to carry out the terms of repayment as in Annexure A.
The applicants filed this suit on habeas corpus ad suscipiendum to enforce their right. The
respondent argued that once an order for detention is issued under Section 3(1) of the Armed
Force and Police (Special Powers) Decree, 1967, during this period of emergency, it is not
competent for the court to inquire into it on an application for habeas corpus.

The provision of Section 3(1) of the 1967 Decree referred to by the learned counsel to the
respondents read thus: “power to order detention of trouble makers”. The learned Lord
observed that in what way do any of the applicants come under the description of trouble
maker? and said as follows:
“I am, as I know is every member of the bench and every right thinking and
honest member of our society, against the prevailing conditions of
corruption and embezzlement of public funds existing in the country today,
but if we are to live by the rule of law, if we are to have our action guided
and restrained in certain ways for the benefit of society in general and
individual members in particulars, then whatever status, whatever post we
hold we must succumb to the rule of law. The alternative is anarchy, chaos
and the whole purport of the Defence Regulations and Emergency
Regulations is to prevent this state of things”
16
 .
(2). Equality before the Law:
This is the second aspect of the rule of law. It was summarized by Dicey as follows: ‘It means
equality before the law, or the equal subjection of all classes to the ordinary law of the land
administered by the ordinary law courts’.

It means all persons in society should be equal and subject to the law of the land. In other
words, the state should not be given any advantage over the ordinary citizens. Dicey
considered that the law was founded on fundamental principle of fairness that were capable
of supporting equality of treatment before the courts whatever the status of the individuals
concerned. This is also reinforced by a belief that the rule of law is particularly relevant to
the protection of equality, and that equality is related to the generality of the law. Dispute as
to the legality of the acts of the government/executive will be decided by Judges who are
independent of the Executive. In the case of Military Governor of Lagos State v. Ojukwu
(1986) 17 NSCC (Pt.1) 304. In that case, the plaintiff had brought an action at the Lagos
State High Court to challenge the constitutionality of the decision of the defendant to eject
him from the premises located at 29 Queen’s Drive, Ikoyi, Lagos. The said premises belong
to Ojukwu Transport Limited. The defendant in ejecting the plaintiff moved into the
plaintiff’s premises with over 150 Armed Policemen and forcibly ejected the plaintiff and
threw him out into the Street without any court order to back their action. Chief Ojukwu
applied for interim injunction with prayer to the Court of Appeal for an order to reinstate
him into possession, the appeal was granted hence the present proceeding. The court held
that:

”The essence of the rule of law is that it should never operate under the rule
of force or fear. To use force to effect an act and while under the Marshall
of that force, seek court’s equity, is an attempt to infuse timidity into the
court and operate a sabotage of the cherished rule of law. A party has resort
to self-help in these circumstances at its peril”.

The Supreme Court has reiterated the same position in the following cases: Shinning
Star Nig. Ltd. v. AKA Steel Nig. Ltd (2011) 1-2 SC (Pt. 10) 1, Akingbola v. FRN
(2012) 8 NWLR (Pt. 1036) 511 and Amaechi v INEC (2008) 5 NWLR (Pt. 1080) 227
at 315.

Again, the provision of 6 (6) (b) of the 1999 Constitution (as amended) vest judicial powers
on all courts, which extend to all matters between persons, or between government or
authority and any person in Nigeria, and to all actions and proceedings relating thereto, for
the determination of any person as to the civil rights and obligations of that person. See the
case of Olufunmilayo Ransome-Kuti v. A. G. of the Federation (1985) 2 NWLR (Pt. 26) 211

From the position of Section 6 (6) (b), two issues which clearly demonstrate the operation of
the rules of law in Nigeria are that, it, in one hand undermines the doctrines of sovereign/
state immunity to legal action imported into this country via English common law. For
instance, the public servant in Nigeria no longer holds their appointments at the pleasure of
the sovereign. In other words, the law is even handed between the citizen and the state. The
second aspect of the section is that the citizens are equal before law.
17
Note however that section 6 (6) (b) of the Constitution still confers on the courts the power
of judicial review of legislative, ministerial and administrative actions, although the
Constitution still confers immunity and special privileges on some government officials –
the President, Vice-President, Governors and Deputy Governors. (see section 308 of the
Constitution).

The requirement of equality before the law has also been extended to mean the absence of
discrimination before individuals in governmental actions and decisions solely on unfair or
arbitrary grounds, such as race, colour, ethnicity, place of origin, political opinion, creed,
sex, or religions and this is described as social objective of the 1999 Constitution and
expressed in section 17.

(3). Individual Right:

The third meaning which Dicey gave to the doctrine of rule of law is that the rule of law
indicates the principle of fundamental rights of the people which according to him are
expressed through the various decisions of the court.

In expressing the foregoing views, Dicey was influenced by his observation of the
codification of constitutional safeguards adopted in Europe and America following the
exposition made by Montesquieu. The observations thus made by Dicey regarding the
traditional and conventional foundations of individual liberty in Britain still hold good in the
21st century throughout the rest of the world and the United Nations Organisation has
epitomised it in the Universal Declaration of Human Rights of 1948 by embarking on
comprehensive codification of it in constitutional safeguards.

In Nigeria, of great importance to the operation of the rule of law is the guarantee of
fundamental rights to the people in Chapter IV of the 1999 Constitution and the African
Charter on Human and People’s Right (Ratification and Enforcement) Act, Cap A9, Laws of
the Federation of Nigeria 2004. The fundamental rights of Nigerian citizens to right to
personal liberty or the rights to public meeting among others are enshrined in the Constitution
thus making them identifiable even before any breach.

Furthermore, one aspect of the rule of law provided by the Constitution of Nigeria is the fact
that no citizen can be punished except for some legally defined crime. In this connection,
section 36 (8) of the 1999 Constitution provides that no person shall be held guilty of a
criminal offence on account of any act or omission that did not at the time it took place,
constitute such offence and no penalty shall be imposed for any criminal offence heavier
than penalty in force at the time of the commission of the crime. The inclusion of the
principle of the rule of law at the time the offence was committed was decided in the case of
Aoko v. Faghemi (1961) l All NLR 406. In that case, the accused was charged with and
pleaded guilty to and was convicted of an alleged offence of adultery by a customary court.
On an application to High Court, the conviction was quashed on the grounds that it violated
the fundamental rights of the accused since adultery is not defined as an offence under any
written law in the western region.

18
The inclusion of the principle of the rule of law in the Nigerian constitution as exemplified
in the above case confirmed that in Nigeria we have a “government of laws and not of men”.
Hence, the guaranteed rights are today enforceable through the special procedure under the
Fundamental Rights (Enforcement Procedure) Rules, 2009 made pursuant to section 46 of
the 1999 Constitution (as amended).

Criticisms of the Dicey Tripartite Formulation

Although, the concept and meanings of rule of law as propounded by Prof. Dicey are still
relevant to the modern governance. However, the formulation has been criticised on the
ground that it was an attempt to turn particular political and economic theories into a
constitutional doctrine, especially as the granting of wide discretionary powers to ministers
through delegation of powers is now a settled feature of legislation and the process of
delegation of powers by the legislature under most modern constitutional laws.

In modern governance, the State regulates the public life in multifarious ways and as such,
the exercise of discretionary power in most spheres of government has become inevitable.
In view of this, Lord Bingham has broken the idea down into eight sub-rules:

1. The law must be accessible and so far as possible intelligible;

2. Questions of legal right and liability should ordinarily be resolved by application of
the law and not the exercise of discretion;
3. The laws of the land should apply equally to all, save to the extent that objective
differences justify differentiation;
4. The law must afford adequate protection of human rights;
5. Means must be provided for resolving disputes, without prohibitive cost or inordinate
delay;
6. Ministers and public officers at all levels must exercise the powers conferred on them
reasonably, in good faith, for the purpose for which the powers is conferred, and
without exceeding the limits of such powers;
7. Adjudicative procedures provided by the state should be fair; and
8. The state must comply with its obligations in international law. See the case of Abacha
v Fawehinmi (2006) 6 NWLR (Pt. 660) 228.

Globally, two events which have emphasised the importance of the doctrine of the rule
of law are:

1. The European Bill of Rights of 1950, contained in the Rome Convention (and its
protocol). The Convention imposes on every participatory member states an
international obligation to ensure that their law are in conformity with its provisions.
2. An Important Conference of 185 Jurists comprising Judges, Law Teachers and
Practicing Lawyers from 53 Countries was held at New Delhi in January, 1959. The
Conference assembled under the sponsorship of the International Commission of
Jurist, with the subject of discussing freely and frankly the rule of law and the
administration of Justice throughout the world.

Finally, there is in Nigeria a body known as Public Complaints Commission (Ombudsman),

which plays an important role in the dispensation of administrative justice. It is certainly not
19
a regular Court in the real sense of it. However, it has gained a world-wide reputation in
ensuring administration of justice in many countries where it exists in one name or the other.
The Commission was set up to protect the ordinary citizen from undue influence, negligence,
error or maladministration by government officials and staff of parastatal.

In this country, the standing of regular Courts is so high that no one would wish to see them
abandoning their historic function of protecting the citizen against unlawful acts of
government or its agents. But this is not to say that Public Complaints Commission would
weaken administrative law. Rather, its presence on the scene should improve public
administration and consequently the rule of administrative law.

2. SEPARATION OF POWER

Introduction.
The term “separation of powers” in its modern connotation is an influential concept
especially in democratic governance. It deals with the distribution of governmental powers,
among the three organs of government. Like the principle of division of labour of Adam
Smith economic theory, the doctrine of separation of powers is directed towards
specialisation in the art of governance, and more importantly, towards guarding against abuse
of political power, for the benefit of the individual citizen. It is a liberty-sensitive concept.

In summary, the doctrine envisages that while legislature is assigned with the responsibility
for enacting law, the executive is charged with the responsibility of administering law and
the judiciary is responsible for the interpretation and application of the laws. Such
arrangement is described as horizontal (parallel) separation of powers in a state. The theory
of separation of powers implies that the three functions of the government should be
performed by different bodies of persons, such that each organ is limited to its own sphere
of actions, and within that sphere should be independent and supreme. However, in a federal
structure like Nigeria, governmental powers are diffused in a manner term vertical separation
of powers whereby such powers are shared amongst central government, state government
and local government. This practice is better explained in terms of exclusive legislative lists
assigned to the centre, concurrent legislative list assigned to the centre and state government
pari pasu subject to the principle of covering the field. In such a situation, each government
comprising its three organ deals with any matter within its own sphere of authority.

Origin of the Doctrine

The doctrine is of great antiquity, dating back to the classical period of great Greek city states
and spanning through the middle ages, the turbulent revolutionary periods of the 17 th and
18th centuries to the democratic administration of the present. Prominent Greek Philosophers
like Plato and Aristotle muted the idea of modern state as a means of avoiding undue
concentration of government powers in one class or group of persons.

Apart from classical and medieval periods, the evolution of the doctrine is also traceable to
the resistance of British Parliaments to the Decrees of British monarchs, and gradual
assertion of powers in the 14 th century. The English scholar, James Harrington was one of
the first modern Philosophers to analyse the doctrine. In the essay “Commonwealth of
20
Oceana,” (1656), building upon the works of the earlier philosophers like Aristotle, Plato
and Machiavelli, Harrington described as utopian (imperfect) any political system that
exclude a separation of powers. An English political theorist, John Locke (1632-1704) gave
the concept more refined treatment in his second Treatise on Government (Treatise and Civil
Government (1690). He argued that legislative and executive powers were conceptually
different, but that it was always necessary to separate them in different institutions. Judicial
powers, however, played no role in his thinking. Locke thought that it was convenient to
confer legislative and executive powers on different organs of government as the legislative
can act quickly and at interval while the executive must constantly be at work. He argued
that it was foolhardy to give to lawmakers the power of executing the laws, because in the
process they might exempt themselves from obedience and suit of the law (both in making
and executing) in their own interest.

The modern idea of the concept was explored more profoundly in the “Spirit of the Law”
(1759), a study by a French Political Philosopher, Charles Louis Montesquieu, who was
considered the author of the system of checks and balances, and the organisation of the theory
of separation of powers. In developing his theory of separation of powers he argued that in
every government there should be three types of powers: the legislative, the executive, and
the judicial powers. Montesquieu was concerned with the preservation of political liberty.
According to him, it is requisite that the government be construed so that one man need not
be afraid of another. He argued that when the legislative and executive powers are united in
the same person there can be no liberty, because apprehensions may arise lest the same
person or senate should enact tyrannical laws, and execute them in a tyrannical manner.
Again, there is no liberty if the judicial power is not separated from the legislative and the
executive powers.

Where judicial power is joined with the legislative power, the life and liberty of the subjects
would be exposed to arbitrary control, for the judge would then be the legislator, where it is
joined with the executive power, the judge might behave with violence and oppression. There
would be an end of everything where the same man or the same body, whether of the nobles
or of the people exercise those three powers, that is, that of enacting laws, that of executing
public resolutions and of trying the course of individuals concluded Montesquieu.

Montesquieu proposition may be broken into three thus:

i. That a person belonging to an arm of government should not belong to the other arm.

ii. That an arm of government should not control any other arm

iii. That an arm of government or a person belonging to an arm of government should not
perform the functions of any other arm.

Application of the Doctrine of Separation of Power in Nigeria

The adaptation of the principle of separation of power has been one of the fundamental
features of the Nigerian Constitution, the separation of powers of government is clearly
delineated in sections 4, 5 and 6 of the Constitution of the Federal Republic of Nigeria, 1999

21
(as amended), which provide for the legislative, the executive and the judicial powers
respectively.

The 1999 Constitution clearly outlined the duties of the different arms of government and
leaves no one in doubt that it is in tandem with the doctrine of separation of powers and
checks and balances. However, the separation is that of functions and functionaries, as
enumerated in Chapters: V – (The Legislature), VI – (The Executive) and VII – (The
Judicature) respectively. Note that the demarcation of powers in each chapter include the
two tiers of government i.e. Federal and State. The implication of this is that the functions
and functionaries at Federal level are distinct from State levels. For instance, members of
legislature who are nominated or appointed into the executive arm of government at the State
or Federal levels are required by the 1999 Constitution to vacate their seat in the legislative
arm as the Constitution does not permit a person or group of persons to hold offices in more
than one arm of the government at the same time. See the case of Ugba v Suswan (2014) 14
NWLR (Pt. 1427) 264SC. Wabara v Nnadede (2009) 16 NWLR (Pt. 1166) 204.

Members of the executive or judiciary cannot, at the same time, be members of the
legislature, or vice versa. In summary, the functions of each arm of government are as
follows:

The Executive Arm of Government

The executive arm of government is regarded as the most influential organ of government is
charged with the responsibility of exercising and enforcing laws. It comprises all the
functionaries and agencies that are concerned with the administration of the state. It consists
of the President and his ministers as in presidential system of government; the Prime Minister
and his cabinet as in parliamentary system of government, the politicians elected or
appointed to the executive arm of government, the civil servant, police, and other security
agencies.

The functions of the Executive arm of government as contained in the 1999 Constitution
includes: budget preparation, initiation of development projects, execution and maintenance
of the Constitution and laws and by-laws made by the National, State assemblies and
Councilors, preserving, protecting and defending the territorial integrity of the nation,
ensuring the stability and security of the nation, states and local government areas and caring
the business of governance in all ramifications including conducting the nation’s
international relations.

The Legislature

The legislature is an organ of government that comprises the elected representatives from
geo-political zones whose primary functions is to make laws and change laws and policies
for the welfare of the citizenry. In democracy, the legislature plays a crucial rle to give voice
to the voiceless and ensure effective representative of all interest. and cultural affiliations or
segments of a country. Legislature can be described as symbol of liberal democracy, because,
it is only the institution or arm of government that always receive the sledge hammer of the

22
military juntas whenever there is coup d’etat, as the executive and judiciary continue to
function even during such periods.

The Legislature is classified into two: Unicameral and bicameral. Unicameral legislature is
the type of legislature with a single or one chamber while bicameral legislature is type of
legislature with two chambers. One of the chambers is called a lower chamber while the
other is call an upper chamber. In Nigeria, the two chambers called the House of
Representative – presided over by the Speaker and the Senate – presided over by the
President of the Senate.

The Primary functions of the legislature remains enactment of laws, modification or

amendment of existing laws to make them to be effective to address the multifaceted and
critical needs of populace through good governance. Other functions of the legislature
include: amendment of the constitution, supervision of the activities of the executive,
approval of the budget, provision of forum for public opinion of appointment, ratification of
treaties and approval of state of emergency and declaration of war by the executive.

The Judiciary.

The judiciary as one of the organs of government is saddled with the primary function to
discover facts, the interpretation and application of laws, as well as the constitution in cases
of dispute between or among individuals in the state. The members of the judiciary are the
Bar Association, comprising of lawyers and the bench, as well as Magistrates and Judges.
Judiciary is seen as the legal institution that protects the interest of the citizens in the state
especially the law courts.

Furthermore, judiciary is responsible for punishment of offenders, enforcing the judicial

process, judicial review, maintenance of peace and order and ensuring the both the exceutiev
and legislative arms do not act ultra vire. Otherwise, declaring such law or laws
unconstitutional, null and void and of no effect whatsoever.

At the Federal level, we have the Supreme Court which is the highest court in Nigeria judicial
system and which has the final say of any judicial matter. Other courts at the federal level
includes: Court of Appeal, Federal High Court, The National Industrial Court of Nigeria,
Federal Customary Court of Appeal and Federal Sharia Court of Appeal. At the State level,
we have state High Court, Magistrate Courts and the Customary Court. Also there is Sharia
court of Appeal in the North that treat cases according to Islamic laws. Courts are the most
powerful legal institution, the courts interpret the laws, pronounce judgments on cases and
give pronounce judgment on cases and give punishments to the offenders.

The head of all courts in Nigeria is called the Chief Justice of the Federation, while judges
pronounce judgments in the courts, lawyers, defend cases in the courts.

Objectives of Separation of power

1. Prevention of tyranny and preventing an individual or group of individuals to combine

two or more state powers in their hands.
23
In reality there cannot be a water tight/complete compartmentalisation of state powers.
Hence, a total separation of powers is difficult to attain in any modern governance. For this
reason, Hamilton and Maddison once stated thus:

“If men were angels, no government would be necessary. If angels were to

govern men, neither external nor internal controls on government would be
necessary”

But as human beings are not angels Philosophers of old and modern commentators have
propounded theories on governance. Hence, Maddison explained the import of separation of
powers as follows:

“Separation of powers mean that one of the three department of the

government must not have the whole of another branch vested in it nor
obtain control over another branch, but, even, if they are separated, they
must be connected by a system of checks and balances”.

2. Separation of powers is a mechanism for promoting and enhancing the

independence of the organs of government in building a virile and stable
political environment.

There can be no liberty where the executive, legislative and judicial powers are
united in one person of body of persons, because such concentration is bound to
result in arbitrary despotism.

Operation of the Doctrine of Checks and Balances in relations to Nigeria

Circumstance.
Since, it is not possible to have a water tight/complete compartmentalisation of state powers,
the principle of checks and balances have evolved to ensure effective administration in
governance by evolving an arm of government in the discharge of functions of the other arms
of government. The constitution of the Federal Republic of Nigeria provides for a system of
checks and balances to restrict the powers of each arm of government as both the federal,
state and local government tiers. The practical applicability of the doctrine of checks and
balances in Nigeria are highlighted below:

Power to veto bills by the President: The President is vested with the constitutional power
to either assent or veto a bill passed by the Houses of the National Assembly, although the
National Assembly can override a veto of the President by mustering a two-third majority to
override the Presidential veto and pass the vetoed bill into law. See section 58 (3)-(5) of the
1999 Constitution and the case of National Assembly v President of the Federal Republic of
Nigeria (2003) 41 WRN 94. In that case, the Supreme Court affirmed that a Presidential veto
can only be overturned by the votes of two-thirds majority of the whole house and not a
quorum, and that there must be a full reconsideration of the vetoed bill before being passed
into law.

24
During the Second Republic, President Shehu Sagari vetoed two Bills while exercising this
constitutional power – Economic Stabilisation (Temporary Provision) Amendment Bill,
1982 and Legal Aid (Amendment) Bill 1983. President Goodluck Jonathan also vetoed the
1999 Constitution (amendment) Bill 2015.

Power of prerogative of mercy: The Presidential and Governors power to issue executive
orders in some areas is another example of the adaptation of the principle of checks and
balances to qualify the constitutional adaptation of the doctrine of separation of power. Such
order includes that of the prerogative of mercy or grant of state pardon under sections 175
and 212 of the 1999 Constitution for the President and State Governor respectively. These
powers clearly amount to a check on the power of the judiciary to impose sentence after a
due process of adjudication. This is also the case in the appointment of judges and members
of the executive council with the approval of the legislature.

Power to make by-law and Regulations etc: The executive has statutory power to make
Bye-Laws, Regulation, Orders, Rules etc as part of its incidental and implied power and to
enhance smooth administration. This power is ordinarily a legislative function, which the
executive may perform for effective governance.

Power to constitute Tribunal and Board etc: when bodies like Tribunal, Boards,
Commission etc are set up within and by the administration to take disciplinary action against
person within the administration or to take decision affecting the rights and obligations of
person generally, they are performing judicial functions.

Power to appoint Judges: the executive can check the judiciary through its power to appoint
or remove judges.

Oversight function: By virtue of Section 88 of the 1999 Constitution, the National

Assembly is empowered to carry out oversight functions over the executive. By so doing,
the National Assembly may carry out investigation into conduct of affairs of any person,
authority, Ministry or government department charged or intended to be charged with the
duty of or responsible for executing or administering laws enacted by the National Assembly
and disbursing or administering money appropriated by the National Assembly.

The power of the legislature in the area of investigation of the activities of the executive is
to expose arbitrariness, abuse of power, corruption and bad governance on the part of the
executive and this has been severally deployed into effective use in Nigeria. Few examples
will suffice: In October, 1979, the issue of N2.8billion improperly misappropriated from the
accounts of the Nigerian National Petroleum Corporations (NNPC) was exposed by the
National Assembly. On January 15, 1980, the House of Representatives decided by
Resolution 48 to set up a Special Committee in line with Section 58 (1) of the Constitution
to investigate the matter. In view of the annual Auditor’s Report issued by Messrs Cooper
and Lybrant Chartered Accountants. Apart from this, The National Assembly during the
Second Republic investigated the National Electric Power Authority (NEPA), the West
Africa Examination Council (WAEC) and the Central Bank of Nigeria (CBN) on the
conditions of service of its employee visa-vis the theft of currencies intended for burning.

25
 Also the National Assembly investigated the activities of the Petroleum Trust Fund
Development Fund (PTDF) on the purported mismanagement of the money realised by the
Fund by the executive arm of government. Most recently, the 7 th National Assembly exposed
the corruption in the petroleum sector in the aftermath of the announcement of the increase
in the pump price of petrol from N65 to N151 on 1st January, 2012 under the guise of
deregulating the petroleum sector. The aftermath of this led to national strike by the
organised labour and eventual reduction of pump price to N97 and thereafter to N87.

It is also importance to mention the fact that the legislature has in fact turned its search light
on itself in the past in the following instances

Case of Senator Chuba Okadigbo: The Nigerian Senate had in the past impeached Senator
Chuba Okadigbo on the account that he used 75 Million Naira to buy Sallah Rams and the
same

Case of Senator Adolphus Wabara: Senator Wabara was impeached on the account that
he and other distinguished Senators received bribe during the debate to pass 2005
Budget/Appropriation Bill.

Mrs Patricial Olubunmi Etteh: the House of Representative impeached Mrs Patricial
Olubunmi Etteh Speaker of House and her Deputy Alhaji Babangida Nguroje on the account
that the duo used the sum of N628 Million to renovate their official Quarters. The David
Idoko’s panel reported that the due process was not followed in the award of the contract to
renovate the official quarter of the Speaker and her Deputy.

Ratification and Domestication of Treaty: the section 12 (1) of the 1999 Constitution
provides that no Treaty between the federation of Nigeria and any other country shall have
the force of law except to the extent to which any such Treaty has been enacted into law by
the National Assembly, the implication of this provision goes to show that the President has
the duty to negotiate Treaties. However, such Treaties cannot have force of law until the
National Assembly approves it.

Removal of the Head of the President or Governor: the legislative arm has power to
remove the President, prime minister and Governor through impeachment process in
accordance with the constitutional provisions

Ratification and appointment made by the Executive: the legislature is conferred with the
power to ratify or approve the appointment made by the executive arm. These includes the
ministers, ambassador, commissioner and head of some agencies who are members of the
executive.

Control of the expenditure of public fund: as part of its oversight function, the legislature
is empowered to control public expenditure and audit public account spend by the executive.

The above shows the measure of cooperation between the executive and the legislative in
the art of public administration in Nigeria. The truth therefore is that there is no rigid
separation of powers between the executive and the legislature under the Presidential system
26
of government but separated institutions sharing powers in same sphere for the welfare of
the people of Nigeria.

Judicial power in section 6 of 1999 Constitution: The third arm of government under our
presidential system of government is the judiciary. By virtue of Section 6 of the Constitution,
the judicial power of the federation is vested in the court established for the federation of
Nigeria. These Courts which include the federal and states courts as are established or may
be established from time to time. We have seen from the above discussion that both the
executive and legislative arms of government perform quasi-judicial functions through the
establishment of one Commission of Inquiry or the other. What is important for now is to
examine whether the judiciary in turn perform the functions of either the legislative or the
executive or put in another way, do judicial arm has power to check the executive or
legislative arms?

It has been severally debated that judges do not make law and that judge do make law.
Whichever view is adopted; we cannot run away from the fact that the primary function of
the court is to interpret the law. In the process of interpretations, the Judges tell us what the
law is, should be and has been. For instance, one of the English feudalism in English
Common Law imported into the Nigeria public service was that the public servants hold their
appointments at the pleasure of the (sovereign) state as decided in the case of Dunn v The
Queen (1896) 1 QB 116, and that they could be dismissed or relieved of their appointments
at any time without complying with any rules or regulations. However, in the case of Shitta
Bay v Federal Public Service Commission (1981) 1 S C 40, the Supreme Court broken from
the aforementioned shackles of imported English feudalism system said that as a watchdog
of the citizens, the Public Servants in this case under a Written Constitution has a duty to
uphold the provisions of the Constitution (being a creation of the Constitution). The Supreme
Court compelled the Commission to perform its duties and observe the rules and regulation
made thereunder. This decision in a way is like judicial enacting law.

Invalidating the actions of the executive and Legislative arms: the judicial arm in the
process of interpreting the law do invalidate the actions of the executive done in excess or
beyond the constitutional pressures by declaring it null and void and no effect whatsoever.
similarly, the judicial arm can declare laws made by the legislature unconstitutional.

In practice, the principle of separation of powers brings about conflicts, deadlocks and threat
of divided and failed government when two arms of government clash intensely over issues
that involve the exercise of their powers, particularly when one arm of government, typically
the legislature, is trying to assert its independence and autonomy from another arm of
government, typically the executive. In trying to gain the upper hand in such conflicts
between the legislatures tend to resort to the threat or use of power of removal of the
executive. For instance, sections 143 and 188 of the 1999 Constitution confer on the National
Assembly and State Assembly respectively powers to remove the President, Vice-president,
Governor and the Deputy Governor from office in the event of a gross misconduct. Similarly,
in the performance of its quasi-judicial function. The National Assembly may sometimes act
as an Appeal Court vide their Public Petitions Committee to which a citizen can send his
petition even after the aggrieved citizens must have exhausted all the possible judicial
remedies. By so doing, the legislative may intervene on various issues affecting the welfare
27
of citizens. Due to the importance of the executive and legislative arms of government, there
is usually executive and legislative conflict.

Executive and Legislative conflict had been defined as a situation whereby the legislature is
opposed to the executive and vice versa in matters pf policy and their perception of vaue of
good governance. Some of the factors usually leading to conflict between the executive and
legislative arms includes: pride and personality clash, executive dominance, ignorance of the
constitution, overlapping functions and legislative performance of oversight function.

The Nigeria Constitution, due to the foregoing, has been able to successfully produce a
government of “Separated Institutions” sharing power in some spheres rather than one
under a rigid separation of powers. The Presidential system of government introduced in
Nigeria since 1979, and now being practice has shown that the executive and the judiciary
are part of the law-making process.

Premised on the foregoing, although there is separation of powers in the Nigerian

Constitution, however, in reality, there are combination or fusion of power between the
executive and legislative arms. The truth is that, absence of such combination will ground
into halt the machinery of the administration. In spite of this overlapping and combination
of powers and function, where there is clear and manifest infringement on the separation of
power either legislatively or executively, the judiciary as the watchdog of the Constitution is
always quick to point it out as objectionable and unconstitutional. In the case of Liyanage
v. The Queen (1967) AC 259, the Judicial Committee of the Privy Council pointed out that
there existed under the Ceylonese Constitution a tripartite division of powers in the
legislature, executive and judiciary and that it would be unconstitutional for judicial
functions to be interfered with by the legislature by an Act of Parliament.

The conclusion to be drawn from the foregoing discussions of the interactions of the three
arms of government is that the three organs must operate in perfect cooperation for good
administration to ensure. This means that once a bill has been properly passed into law, the
executive is duty bound to execute the law, the judiciary on its part has no right to enquire
into the motives of the legislature or as to the rightness or wrongness in the abstract. The
judiciary must allow the executive to execute the law made by the legislative. Otherwise the
judiciary may constitute itself into a clog in the wheel of the executive and thereby turn
government to a “government of the judiciary”. Nonetheless, the judiciary has a duty to
watch for two things namely: (i) whether the executive or the legislative has observed the
procedure laid down for the discharged of their duties and (ii) to examine whether the law
itself is not ultra vires the grundnorm. See A.G of Bendel State v A.G. of the Federation &
others (1982) 3 NCLR 1. In Lakanmi & Another v. A.G Western State and others (1971) 1.
UILR 201 at 218 Ademola C.J.N (as he then was) said

“We must here revert again to the separation of powers, which the learned
Attorney General himself did not dispute is still the structure of our system
of government. In the absence of anything to the contrary it has to be
admitted that the structure of our constitution is based on separation of
power- the legislature, the executive and the judiciary. Our Constitution
clearly follows the model of the American Constitution in the distribution of
28
 powers. The courts are vested with the exclusive right to determine
justifiable controversies between citizens and the state. See Attorney
General for Australia v. The Queen (1957) A.C. 288 at p.311 etc. In Loyell
v. United States (1946) 66 Supreme Court Reports 1079. Mr. Justice Black
said as follows: ‘those who write our constitution well know the danger
inherent in special legislative acts which take away the life, liberty or
property of particular named person, because the legislative think them
guilty of conduct which deserves punishment. They intended to safeguard
the people of this country from punishment without trial by duly constituted
courts’. These principles are so fundamental and must be recognized. It is
to define the powers of the legislature that constitutions are written and the
purpose is that such powers that are left with the legislature be limited; and
that the reminder be vested in the courts”

The Supreme Court finally held that Act No 45 of 1968 was ultra vires since it was nothing
short of legislature judgment, an exercise of judicial power.

Finally, in the case of Yantaba & Ors v. Governor of Katsina State & Others (2021) 10 SCM
147 at 199-200. The Supreme Court held inter alia that the separation of powers as alluded
to above, was not designed to place the three arms of government into separate water-tight
compartments. There must be a synergy and harmonious cooperation with one another in the
best interest of our dear nation.

MINISTERIAL RESPONSIBILITY

1. Introduction
The word ‘minister’ comes from Middle English, derived from the Old French word ‘ministre’.
Originally, minister in Latin word means ‘servant’, ‘attendant’, which itself was derived from the
words ‘minus’ leaning ‘less’.1 At the inception, a minister is simply someone who serves other,
whether it be under the government, religious circle or any other authority or mandate. 2 However,
today, the word ‘minister’ may conjure up the image of superiority or high office, but the fact
remains that ministers are supposed to be servant, usually with special tasks to fulfill or accomplish.

* Fagbemi. S. A. LL.B (Hons), LL.M (Ife), Ph.D (Ibadan) FIPMD, AISDS, AICMC, Associate Professor, Department
of Public Law, Faculty of Law, University of Ibadan, Ibadan, Nigeria. Email: [email protected], Tel:
08034709340; 08101800280.
1
Online Etymology Dictionary available at https://www.etymonline.com>word, accessed on 8th January, 2021
2
Etymology – Religious sense of “minister” – English Language & Usage Stack Exchange, available at
english.stackexchange.com, accessed on 23rd January, 2021. According to Collins English Dictionary, a minister is a
person acting for another as agent and carrying out given orders or designs. Available at
www.collinsdictionary.com>minister, accessed on 8th January, 2021. In religious circle, a minister is a person whose job
involves leading church services, performing religious ceremonies (such as marriages), and providing spiritual or
religious guidance to others people, a member of the clergy in some Protestant churches. See www.britannica.com,
accessed on 8th January, 2021. However, the focus of this paper is concerned with the persons who perform ministerial
functions as an official or officers of the state or a head of government department or a major section of department in
some countries.
29
A minister, in terms of hierarchy, is a top government official and usual head a ministry or
department of state and also a member of the executive council headed by the head of state or
president.3
Under the Parliamentary System of Government, a minister is a member of the parliament and
member of the House of Lords who serve in the Government. 4 Ministers are appointed by the Prime
Minister and each has a specific area of government policy to oversee. Conversely, in Presidential
System of Government, a minister is a member of the executive, appointed by the head of
government,5 subject to approval or confirmation by the legislative arm of government. 6 Ministers
are generally responsible for the effectiveness and efficiency of the agencies within their portfolio. 7
According to Malemi8, a minister is a political appointee and he remains in office at the pleasure of
his appointor, who may be a president, prime minister or premier etc. Procedurally, a minister usually
vacate office on a change of government except they are re-appointed. Every act of government is
done through ministers and their ministries, departments, offices and other parastatals or public
agencies under a ministry. 9 Hence, during parliamentary debates, ministers speak on behalf of the
government and also answer questions from other members of Parliament or members of the House
of Lords.
The concept of ministerial responsibility can be ascribed to be a particular British contribution to
modern political practice at least as it is understood in Commonwealth Countries, where the British
Parliamentary system of government is practiced. 10

2. Historical Overview of the Concept of Ministerial Responsibility.

The historical struggle for ministerial responsibility was long and difficult to analyze, both in the
United Kingdom and in Commonwealth countries. In the United Kingdom, the origin of this concept
reached back to the end of the 17th century, during the late Stewart’s reign, when Parliament made
ministers responsible for any mismanagement as a way to assert their power without attacking the

3
Malemi, E, Administrative Law 3rd ed., (Ikeja: Princeton Publishing Company, 2012) p. 79
4
Ministers-UK Parliament. (n.d) available at https://www.parliament.uk/site-information/glossary/minister, accessed on
23rd January, 2021.
5
Either President, Head of State. Premier or Chancellor etc., just to mention but few.
6
See section 147 of the Constitution of the Federal Republic of Nigeria 1999 (as amended)
7
Roles and Responsibilities of the Premier and Ministers. (n.d) Parliament of NSW, available at
https:///www.parliament.nsw.gov.au/about/Pages/Roles-and-Responsibilities-of-the-Premier-and-Min.aspx, accessed
on 8th January, 2021
8
Malemi, E (n.3)
9
Ibid
10
Iluyomade, B. O & Eka, B. U, Cases and Materials on Administrative Law in Nigeria (University of Ife Press, 1980)
p. 20
30
king.11 Members of Parliament used the established maxim that “the king can do no wrong” to
preclude the monarch from shielding his ministers from parliamentary criticism. 12 The prerogative
of Parliament to reject the nomination of ministers was not fully established in the United Kingdom
until 1714. The necessity for a standing government to maintain the confidence of Parliament (i.e.,
the collective responsibility of ministers) became a reality in 1841 when Prime Minister Sir Robert
Peel formed a government without the support of Queen Victoria. The recognition of this principle
in the United Kingdom did not, however, signify its extension to other countries of the British
Empire. In Canada, for instance, the governor-general directly appointed colonial administrators
without consulting the House of Common up to the 1840s, when a parliamentary majority led by
Robert Baldwin and Sir Louis Hipolyte Lafontaine succeeded in establishing a constitutionally
responsible government in the country.13
In the United Kingdom, the concept of ministerial responsibility was further developed in the 19th
century. The 1833 report of the Selected Committee on Colonial Lands and Emigration, also known
as the Stanley Report, laid out the principle that ministers were responsible for the actions of their
department and its officials. The report stated that “ministers are responsible to the Crown for all
acts done by their subordinates in the execution of the public service”. In the 20 th century, the
principle of ministerial responsibility was codified in the British Cabinet Manual of 2011. It states
that Ministers are collectively and individual responsible to the House of Commons for the actions
of their departments, including the actions of their portfolio. 14
In Nigeria, the principle of ministerial responsibility has a chequered history. The doctrine has
experienced two system of governments. At the beginning of the Nigerian democratic dispensation,
the country, after independence in 1960, adopted Parliamentary System of Government due to
British influence in her political culture. However, the country metamorphosed into Presidential
System of Government fashioned after the United States of America democratic model in 1979. 15
This incident has huge impact on the practice of ministerial responsibility in Nigeria starting with
the Constitution of the Federal Republic of Nigeria 1979. The progression of which is explicit in the
Constitution of the Federal Republic of Nigeria 1999 (as amended). Section 147 (1) of the

11
Schwartz, D., & Gurstein, B. B., ‘Government and Management Ministerial Responsibility in Israel’, (2019), Business
University of Costa Rica, p.6, available at https://www.researchgate.net/publication/330811765, accessed on 12th
January, 2021.
12
Ibid; Munro, A., Ministerial Responsibility, available at Encyclopedias Britannica, https://www.britannica.com>topic,
accessed on 8th January, 2021.
13
Ibid
14
The Cabinet Manual 2011. A Guide to laws, conventions and rules on the operation of government 1st Edition October
2011.
15
Fagbemi, S. A & Akpanke, A.R., ’Appraisal of the Doctrine of Separation of Power and Its Practical Applicability in
Modern Governance for National Development in Nigeria’, (2018) 9, N0.2, Ebonyi State University Law Journal, pp.
249-263: 258-259.
31
Constitution of the Federal Republic of Nigeria 1999 states that “the president shall be responsible
for the general direction and control of the Executive Council and shall have power to give to any
member of the Executive Council such directions with respect to the exercise of the function of his
office as he may consider necessary, and the member of the Executive Council shall comply with
such directions”. The implication of this provision is that the President, under the present democratic
dispensation in Nigeria, appoints his ministers and gives general direction with regards to their
functions through a ministry or department of government. A minister in charge of his ministry is
not only responsible for his conduct, but rather for the overall responsibility of his office. Ministerial
responsibility, therefore, plays an important and decisive role in the proper functioning of the
executive arm of government under Presidential System of Government. 16

3. Objectives of the concept of Ministerial Responsibility

According to Munro,17 ministerial responsibility is a fundamental constitutional principle in the
British Westminster parliamentary system according to which ministers are responsible to the
parliament for the conduct of their ministry and government as a whole. Ministerial responsibility is
central to the Parliamentary System of Government, because it ensures the accountability of the
government to the legislature and thus, ultimately, to the population. This principle is mainly based
on a body of constitutional conventions, established by precedents, rather than on positive statutes.
In some countries such as the United Kingdom and Canada, the legal standing of ministerial
responsibility is also based on the oath taken by each minister upon becoming a member of the Privy
Council. Ministers—known as ministers of the crown in Commonwealth countries—have both
a collective and an individual responsibility to the parliament. 18
The concept of ministerial responsibility is therefore founded on the ministerial Code of Conduct.
The Code combines the ethical standards that applies to ministers both as member of parliament and
as members of the executive government. For instance, as member of parliament, ministers have
obligations that flow from the fundamental principles, set out in the Code of Ethical Standards, which
include integrity of the parliament, primacy of the public interest, independence of action,
appropriate use of information, transparency and scrutiny and appropriate use of entitlements. 19
Minister are also expected to observe the ethical value set out in the Public Sector Ethic Act 1994,
which apply to Queensland public sector and this include integrity and impartiality, promoting the

16
Schwartz, D., & Gurstein, B. B., (n 15)
17
Munro, A,. (n 16)
18
Ibid
19
See for instance Ministerial Code of Conduct set out in the Code of Ethical Standard of the Legislative Assembly of
Queensland, available at https://www.premier.qld.gov.au>...PDF, accessed on 15th February, 2021
32
public good, commitment to the system of government and accountability and transparency.
Similarly, the Ministerial Code of Welsh Government state inter alia that:20 Ministers must account
to parliament for their department’s policies, decisions, and actions; ministers must provide accurate
and truthful information and correct errors as soon as possible. Ministers who knowingly mislead
the Prime Minister are expected to resign; ministers should be as open as possible to the Parliament,
and should require civil servant to disclose information only when it is not in the public interest;
minister should require civil servants who give evidence on their behalf to a Parliamentary
Committee under their direction to be as helpful as possible in providing accurate, truthful, and full
information; and ministers must ensure that no conflict exists between their public duties and their
private interest.21
Premised on the above, ministerial responsibility is a principle that holds cabinet members
accountable for the actions of the government and requires them to take responsibility for any
problems that may arise. It does not necessarily imply personal culpability or legal responsibility,
but rather a willingness to defend and justify the government’s actions in the legislature. The
principle of ministerial responsibility is an important aspect of parliamentary democracy, as it helps
to ensure that the government is accountable to the legislature and the people. It is based on the ideal
that the head of government, who is typically elected by the people, should be able to select a team
of advisors and cabinet members to help them govern the country. These cabinet members, who are
also typically elected representatives, are expected to work together to develop and implement the
policies and programms of the government.
Ministerial responsibility also serves to ensure that the government is transparent and accountable
to the public.22 By requiring cabinet members to defend and justify the actions of the government in
the legislature, the principle of ministerial responsibility helps to ensure that the government is held
accountable for its decisions and policies. This, in turn, helps to build trust and confidence in the
government and promote good governance. In view of the foregoing, ministerial functions mean

20
Ministerial Code, Welsh Government, November, 2019, available at https://gov.wales>publicationsPDF, accessed on
14th February, 2021
21
The contemporary role, scope and powers of the Executive. Law Explorer (2017, June 2022), available at
https://lawexplorers.com/the-contemporary-role-scope-powers-of-the-executive/, accessed on 15th February, 2021.
22
While given comprehensive meaning to transparency and accountability, Oyewo opines as follows: Transparency
requires that holders of public office should be as open as possible about all decisions and actions they take. Transparency
involves openness in governmental process. It thus aims at eliminating opaqueness and illegality in governmental
operations. Transparency engender accountability. Accountability is a relationship between an actor (government,
officials, civil/public servants etc) and accountability forum (courts, legislature, police, independent authorities, civil
society, electorate, community, etc). Political accountability devolves through from elected officials to the electorate,
enforced by the electorates through the exercise of their franchise at elections. See Oyelowo Oyewo, Modern
Administrative Law and Practice in Nigeria (Lagos: University of Lagos Press and Bookshop Ltd, 2016) pp.192 -193.
Also, the Code of Conduct in the 5th Schedule of the 1999 Constitution impose definite duties of accountability on all
governmental officials. This duty includes declaration of assets at the beginning of government functionary’s
appointment and at the end of his or her tenure in office.
33
actions or functions performed by an individual under a given state of facts in a prescribed manner
in accordance with a mandate of legal authority, without regards to, or without the exercise of, the
individual’s own judgment as to the propriety of the action being taken.

4. Ministerial Responsibility Under Parliamentary System of Government

Under a Parliamentary System of Government, the responsibility of ministers is both collective and
individual. Collective responsibility is the practice of holding individual members of government
accountable for the actions and decisions of the government as a whole. It necessitates that each
minister publicly support policy from all departments, even if they have reservations privately.
Collective responsibility also mean that all the Ministers are collectively responsible to an elected
parliament for the general Policy of the administration, that is, all decisions of the Cabinet must be
supported by the Ministers.
Describing the concept of collective responsibility in this first sense, Mr Joseph Chamberlain, 23 a
former British Prime Minister said as follows:
Absolute frankness in our private relations and full discussion of all matters of
common interest, the decisions freely arrived at should be legally supported and
considered as the decisions of the whole government. Of course, there may be
occasions in which the difference is of so vital a character that it is impossible for the
minority to continue their support and in this case, the ministry breaks up or the
minority members resign.

Munro,24 also gave two perspectives in which the concept of collective responsibility may be
understood as follows: First, it signifies that the government remains in office only so long as it
retains the confidence of the parliament and that all ministers stand or fall together with that
government. Ministers must support government policies, but they must also resign or seek the
dissolution of the government if defeated in the parliament on a matter of confidence (for instance,
a vote on the budget). Collective responsibility implies that ministers are bound by the decisions of
the cabinet even when they take no part in their discussion or decision. Second, all members of the
government speak in concert in the parliament, unless the Prime Minister relieves them of that duty.
This can happen when the government has no stated policy on an issue and allows a free vote to take
place in the parliament or when the Prime Minister allows a member of his or her government to
differ publicly from a policy. Members of government are also allowed to engage in frank debates
and disagreements in private, prior to the cabinet’s decision. This freedom, however, entails another
form of collective responsibility, since ministers are bound to respect the confidentiality of these

23
See Ivor Jennings, Cabinet Government 3rd ed. (Cambridge University Press, 1969) p 227.
24
Munro, A., (n 16)
34
discussions and to present a united front after a decision has been reached. The principle of collective
ministerial responsibility ensures that the government acts as one entity and that this entity is
answerable and accountable to the parliament. The implication of the principle of collective
ministerial responsibility is that the people may enforce the collective responsibility and
accountability of government to the people, by a defeat at an election or by some other popular
actions to force the government to resign or to abandon a chosen course of action. Also, the
parliament may enforce collective responsibility through a direct vote of censure, passing a vote of
no confidence or by defeating an important government measure on the floor of the house. 25
When a cabinet loses a vote of confidence of Parliament, the whole cabinet of minister or executive
has to resign en masse from office. However, the obligation of a Cabinet to resign from office on
account of vote of no confidence is not a legal one, but a conventional rule, thus, where the Cabinet
refuses to resign; the parliament has no power to dismiss it. So, view in this sense, ministerial
responsibility may be regarded as moral or political responsibility.
Individual responsibility, on the other hands, is a constitutional convention that makes government
ministers responsible for not only their own actions, but also for those of their department. It means
that each Minister is individually responsible for every act of the government in which he takes part
or proceed from his Ministry/Department. The doctrine is part of wider concept of responsible
government. It seeks to guarantee that an elected official is motivated to closely scrutinize all
activities within their department. In practice, a minister must not shift the blame on the public
servant. Under this concept, individually, ministers are personally responsible to the parliament. This
responsibility includes the minister’s own conduct, but it also extends to the agencies and
departments under his or her purview and all actions taken by civil servants under their watch. 26 He
must accept responsibility for the actions of the Civil Servant in his Department and he is expected
to defend them from public criticism, unless they have done something reprehensible which he
forbade them from doing or which he did not have prior knowledge. In this instance, the minister
may dismiss the doer.
Thus, in the case of any wrongdoing or mistake, the minister can be called on to act to correct the
situation, to apologize, and even in some cases to resign from a cabinet position. 27 In reality, no
minister has ever resigned or stepped down in accordance with the traditional doctrine of ministerial
responsibility, whereby a minister should resign over public service failures within their

25
Iluyomade, B. O & Eka, B. U, (n 10) p. 20
26
Munro, A., (n 16). See also Jordan, G. Individual Ministerial Responsibility: Absolute or Obsolete? Unit for the Study
of Government in Scotland, (University of Edinburgh, 1983), p. 122
27
Maddigan, J., ‘Ministerial Responsibility’ (Autumn 2011) 26 (1) Australasian Parliamentary Review 158-165: 158-
159.
35
department.28 The closest example was in 1954 in Britain, when Thomas Dugdale resigned over the
Crichel Down Affairs – a case about requisitioned land not being returned to its original owners.
However, according to Maddigan, 29 archive materials released years after the event suggested the
minister may have personally been involved in covering up the problem the real reason he stepped
down. Nonetheless, there are some cases when minister must resign over departmental faults, and
this include: involvement in criminal activities, conflicting business deals, conflict of interest, and
indiscretion etc.30 It is important to note that while this convention makes ministers politically
responsible for their civil servants, it does not relieve the latter from their obligation to obey the law.
Similarly, while ministers must take responsibility for the errors of their subordinates, it does not
follow that they must accept personal blame for these errors. Thus, resignation of ministers for other
personal breaches are rare and generally only occur when the political party to which minister
belongs decides that he/she should go. In these cases, ministerial responsibility is more of a
convenient tool, than a matter of conscience. 31
Another perspective to viewing the concept of individual ministerial responsibility is that the
Ministers are responsible to the Prime Minister or the President who appoints them. In such a
situation, they will be responsible to the head of State/Government for their acts. Theoretically, they
are his appointees and so responsible to him for their act, both individually and collectively. 32 For
this reason, they should conduct themselves visa-vis the affair of their ministry in such a way that
the Chief Executive (Prime Minister or President) is not politically embarrassed.
In principle, while the doctrine of individual ministerial responsibility is a constitutional convention,
there is no formal mechanism for enforcing it, hence, ministers frequently use ignorance of
misbehaviour as an argument for lack of culpability. Opposition parties rarely accept this argument,
but it has been found that the electorate can be more accepting. 33

28
Ibid
29
Ibid
30
Ibid. see also Raffin, L., ‘Individual Ministerial Responsibility During the Howard Years: 1996-2007’ (2008) 54 (2),
Australian Journal of Politics and History: 225-247. Raffin asserted that individual ministerial responsibility is not a
part of current political reality in Australian. He listed the ministers that resigned during the Howard years and their
offences which include conflict of interest, failure to disclose shareholding transaction, misuse of travel budget and
failure to disclose ownership of shopping centres. See further Mulgan, R., ‘On Ministerial Resignation (and Lack
Theory)’, (2002) 61 (1) Australian Journal of Public Administration p. 121
31
Ibid. see further Lowell, A. S., The Government of England, (New York: The Macmillan Company, 1908), p. 73;
Marshall Geoffrey, Ministerial Responsibility (London: Oxford University Press, 1989) pp .1-13 and Lord Morrison,
Government and Parliament: A Survey from the Inside 3rd edn. (London: Oxford University Press,1964), p. 329.
32
Iluyomade, B. O & Eka, B. U (n. 10) p. 20. See also Keith, A. B, The British Cabinet System (Stevens, 1952) 277,
available at htttps://books.google.com> about, accessed on 1st March, 2021.
33
https://www.tutor2.net>reference, accessed on 24th March, 2021.
36
5. Applicability of the Concept under a Presidential System of Government
As noted earlier, ministerial responsibility is peculiar to Parliamentary System of Government. The
concept can only be said to apply under the Presidential System of Government. For instance, under
the Presidential system, a minister or commissioner is nominated or chosen by the President or
governor subject to confirmation by the Senate or State house of Assembly.34 Upon confirmation by
the Senate or House of Assembly, the ministers or commissioners are formally appointed by the
President or Governor to head various ministries. 35 In this context, the Ministers or Commissioners
are not member of the parliament and they have no responsibility to the National Assembly or State
House of Assembly. Also, by virtue of constitutional provision, once, a member of legislative house
is appointed a Minister, he automatically forfeits his seat in the house. 36
The only safe guard provided in the 1999 Constitution is that, Ministers or Commissioners may be
invited by the relevant body to explain their conducts or matters arising from the administration of
their ministry. In this way, individual ministerial responsibility exists in a Presidential System of
Government. In other words, Ministers or Commissioners are responsible to the executive President
or Governor and not directly to the legislature. They are not duty bound to resign even if the House
lose confidence in them. President or Governor may, in his discretion, assign to a
Minister/Commissioner responsibility for any business of the government including the
administration of any Department or Ministry of government. 37
In spite of the above constitutional provisions, both the legislative and executive arms of government
are accountable to the people who are regarded as sovereign. Section 14 (2) of the 1999 Constitution
provides inter alia that – ‘sovereignty belongs to the people of Nigeria from who government
through this constitution derives all its powers and authority’. Furthermore, the provisions of section
5 (1) and (2) of the 1999 Constitution confers executive powers on the President and Governors
respectively, subject to the provision of any law made by the National Assembly and State House of
Assembly. The implications of section 5 of the 1999 Constitution is that the power of executive arm
of government is checked by the provisions of the law of the legislative. For this reason, the ministers

34
Section 147 (1) and (2) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). The provision of
section 147 (3) of the Constitution also recommends that at least one minister, who is an indigene of each state shall be
appointed. This provision is to promote the sense of belonging from the states comprising the Federal Republic of Nigeria
such that no state will fill marginalized in the scheme of things and governance. The alternative name for this practice
in Nigeria is Federal Character. See Oyelowo Oyewo, (n 26) p.52
35
Malemi, E. (n 3).
36
See sections 68 (1) (d) and 109 (d)) of the 1999 Constitution. See also section 147 (4) of the 1999 Constitution. In
jurisdictions that use the Westminster system of government such as the United Kingdom and Australia, ministers or
their equivalents are selected from the legislature, and usually from the political party that controls a majority in the
lower house of the legislature. Conversely, in jurisdictions with strict separation of powers such as Nigeria, Belgium,
Mexico, Netherlands, Philippines and the United States of America, ministers cannot be members of the legislature, and
a legislator chosen to become a minister must resign his membership of the legislature.
37
See section 148 (1) 1999 Constitution.
37
and commissioners within the federation are accountable to the legislative arm for their actions,
hence, when the parliament disapproves of a minister’s or commissioner’s conduct or has no
confidence in the minister, the President or Governor may drop the said Minister or Commissioner
or assign him to another ministry. 38
It should be noted that Presidential System of Government also in some ways, allows for collective
ministerial responsibility. This is because, any minister or member of the executive who does not
resign is held collectively responsible for the government’s action taken while he was in the office
as a Minister or Commissioner. Under the doctrine of ministerial responsibility, he is expected to
defend the executive’s policies and actions during his tenure as a Minister or Commissioner, as well
as to accept praise or blame for them. If he does not support government policies or does not feel
able to defend them on principle, he is expected to resign from government. If he does not resign,
the President or Governor has the authority to dismiss him for failing to support government
policies.39
In reality the responsibility of the Minister/Commissioner is merely advisory and therefore the
President or Governor is not bound to act on such advice as he may seek advice from other quarters.
In this case the Permanent Secretary, who are as much responsible to the Executive
President/Governor as the Minister/Commissioner since he appoints them and can also remove them.
For instance, section 148 (2) provides that the President shall hold regular meetings with the Vice-
President and all the ministers of the government of the Federation for the purposes of: (a).
determining the general direction of domestic and foreign policies of the government of the
Federation; (b). coordinating the activities of the President, the Vice-President and the Ministers of
the government of the Federation in the discharge of their executive responsibilities; and (c).
advising the President generally in discharge of his executive functions other than those functions
with respect to which he is required by this constitution to seek the advice or act on the
recommendation of any other person or body.
Due to the foregoing provision, the responsibility of a minister in Nigeria is mainly advisory. They
provide advice to the President who has the responsibility for determining the general direction of
the domestic and foreign policies of the government of the federation and in the discharge of
presidential executive functions as prescribed in the Constitution. Thus, the regular meeting which
the President is enjoined to hold with the Ministers every week cannot therefore be regarded as
having the same status of cabinet meetings under a Parliamentary System of Government, in deed

38
Malemi Ese (n 3)
39
Ibid)
38
the Special Adviser whose advice may be preferred by the executive President or head of
Government are not expected to be in these regular meetings.40

6. Constitution and Administrative Measures to Ensure Ministerial Responsibility in

Nigeria
If the ministerial responsibility is said to be “erratic and defective instrument” for the administration
of justice under the Parliamentary System of Government, one can say without fear of contradiction,
that it is grossly inadequate, if it exists at all under the Presidential System of Government. However,
to ensure transparency and accountability in governance, there are various internal and external
measures constitutionally designed to check the excess of the executive, which include the minister.
The measures include the following among other things.

6.1. Appropriation Function

In appropriation procedure, the legislative arm plays a key policy role as if policy formulation other
than legislation for implementation is part of law-making process. Although the proposal for
appropriation is the primary function of the executive arm of government through the presidency. 41
However, during the appropriation process, ministries, agencies and other department of government
are called upon by the legislature to defend their respective budgetary proposals.42 This legislature’s
power over appropriation is not peculiar to Nigeria, it is almost all over the world and indeed one of
the earliest and oldest function of the parliament.

6.2 Confirmatory Function

The legislature also conducts confirmatory functions in matters of appointments of several offices.
The President, by virtue of his constitutional duty, is empowered to appoint ministers who form
members of his cabinet, subject to confirmation by the Senate. The President thus in practice only
nominates members of the cabinet, but no nominee becomes a minister unless and until the
nomination is confirmed by the Senate. 43 This is to ensure that the President complies with
constitutional provisions relating to the appointment of Ministers and to make the ministers
responsible not only to the President but also to the electorates. The ministerial appointment is
administrative and does not involve lawmaking, yet the constitution requires confirmation by the

40
Section 148 (2) of the Constitution of Federal Republic of Nigeria 1999 (as amended)
41
Ahmadu, R. A., ‘Appropriation Procedure as Aspect of the Budgetary Process in Nigeria’ (2001), Communication by
Mrs. R. A. Ahmadu (for Mr. Ibrahim Salim) (Nigeria), Ouagadougou Session (September, 2001) pp.273-283: 279.
42
Rod, H, & Martin, H Comparative Government and Politics: An Introduction 6th ed. (New Yorks: Pal Grave
Macmillan, 2004), p. 257
43
See section 147 of the Constitution of the Federal Republic of Nigeria 1999 (as amended)
39
Senate of Nigeria. This process has in the past led to the dropping of President nominees for
ministerial positions in Nigeria for one reason or the others.44

6.3. Constitutional Measures

Section 22 of the 1999 Constitution provides that ‘the press, radio, television and other agencies of
the mass media shall at all times be free to uphold the responsibility and accountability of the
government to the people. It is therefore every person’s duty to uphold the responsibility and
accountability of the government to the people. There are also internal and external accountability
mechanisms in governance. The internal mechanisms are usually those exercisable within the
hierarchy of each arm of government. For example, from the President to the Federal Executive
Council, Ministers, Permanent Secretaries, Directors, down to the least government official. For
instance, section 148 of the Constitution provides an avenue for the President to deal with Ministers
for failure to discharge the duty of their offices. Service Compact With All Nigerians (SERVICOM)
also represents an internal accountability mechanism of service delivery by public servants. 45

The external mechanisms for accountability within the framework of the Constitution include
intergovernmental checks and balances, non-judicial and judicial remedies, and anti-corruption legal
regime for the investigation, prosecution and punishment for corrupt practices. 46 An effective,
independent judicial system is a fundamental prerequisite for effective executive accountability. 47
Similarly, in the performance of its quasi-judicial function, the National Assembly may sometimes
act as an Appeal Court vide their Public Petitions Committee to which a citizen can send his petition
even after the aggrieved citizens must have exhausted all the possible judicial remedies. By so doing,
the legislative may intervene on various issues affecting the welfare of citizens.

44
Reuters, Update 2-Nigerian leader submits cabinet for Senate approval, available at
https://www.reuters.com/article/nigeria-government-idUSLDE75R0T520110628, June 28, 2011, accessed on 14th
March, 2021; The Guardian, Ministerial screening: What the constitution say, 13 October 2015, available at
https://guardian.ng/opinion/ministerial-screening-what-the-constitution-says, accessed on 14th March, 2021.
45
SERVICOM was established on March 21, 2004 as a Presidential Initiative pledging to rendering quick and
satisfactory service to all Nigerians. The objectives of SERVICOM include: provision of quality service to the people;
set out the entitlement of the citizens; ensure good leadership; educate the citizens (customers) on their rights; and
empower public officer to be alert to their responsibility in providing improved, efficient, timely and transparent service.
See Ministry of Interior, available at https://interior.gov.ng>servicom, accessed on 12th April, 2021.
46
Some of these have been discussed above. See also Oyelowo Oyewo (n 26)
47
Mulgan, R. Holding Power to Account: Accountability in Modern Democracies (Macmillan, 2003), pp.75-76
40
6.7. Code of Conduct Bureau and Code of Conduct Tribunal
The imposition of a duty to observe and conform to a Code of Conduct by public officers is an
innovation of the 1979 Constitution that is retained in the 1999 Constitution. 48 The Code of Conduct
prohibits the following conducts amongst others, the giving and receiving of bribes, abuse of office
by public officers, the operation of private foreign accounts by public officers, as well as conflict of
personal interest with official duties on the part of public officers. Pivotal to the Code of Conduct is
the scheme of declaration of assets required of every public officer within three months of the
coming into force of the Code or immediately after assumption of office, and thereafter at the end
of every four years, and finally at the end of the officer’s term of office. 49 The Code of Conduct
Bureau is charged with the responsibilities to receiving, retaining custody of, and examining assets
declaration forms filed by public officers including the ministers. It also has the duty of receiving
and dealing with allegations that a public officer has committed a breach of, or has not complied
with, the provisions of the Code of Conduct. The Code of Conduct Tribunal conducts administrative
adjudication on all allegations of contraventions of the Code, and imposes any of the punishments
specified by the Constitution. Hence, it is the Tribunal and no other court can adjudicate on any
allegation of infraction of the Code. 50

7. Conclusion
The concept of ministerial responsibility, which represents transparency and accountability in
governance is the cornerstone in which modern day government is built. It is a strategy designs for
the promotion of probity and good governance. The essence of ministerial responsibility is to hold
ministers liable and accountable for everything that is done during their tenure as public
functionaries. Such a responsibility can serve as an example for all government ministers. The
concept of ministerial responsibility is an important element in governance be it Parliamentary or
Presidential System of Governments. The concept symbolizes the minister’s duty to report not only
to the parliament but to the community or entire state.
The contents of ministerial responsibility are legal reasons for the executive and all government
functionaries to take responsibility for their actions, in other words, under which situation, they are

48
The list of Public Officer for the purpose of the Code of Conduct include the Ministers of the Government of the
Federal and Commissioners of the Government of the States. See Fifth Schedule Part II of the 1999 Constitution.
49
See section 149 of the Constitution of the Federal Republic of Nigeria 1999 (as amended). The section provides that
‘a Minister of the Government of the Federation shall not enter upon the duties of his office, unless he has declared his
assets and liabilities as prescribed in this Constitution and has subsequently taken and subscribed the Oath of Allegiance
and the Oath of office for the due execution of the duties of his office prescribed in the Seventh Schedule of this
Constitution’, see The Guardian (n 48).
50
See the case of Ogbuagu v. Ogbuagu (1981) 2 NCLR 680. It was held that the High Court is not a proper forum under
the Constitution for a complaint that a person has breached a Code of Conduct under the Constitution.
41
held accountable. Having powers mean having responsibilities. The form of accountability examines
in this paper entails a sound system of internal and external control measures, which complements
and guarantees sufficient checks and balances offered by the constitution and conventional practices.
The paper reveals that the application of ministerial responsibility initially practiced in Nigeria
through Parliamentary System of Government inherited from British political affiliation, before the
country adopted the Presidential System of Government in the second republic have constitutional,
political, legal, financial and social perceptions and have been enthroned in Nigeria through various
constitution and administrative measures.

4. THE DOCTRINE OF PARLIAMENTARY AND CONSTITUTIONAL

SUPREMACY.

Parliamentary sovereignty or constitution supremacy as it is sometimes called is a legal

concept. It is a legacy of the British Parliamentary practice which arose out of the conflict
between the Crown and Parliament at the early stages of British Parliamentary Government.
Many Countries that operate unwritten constitution have adopted this doctrine. Nigeria, prior
to the introduction of a written Constitution also practiced the principle. Thus, the Parliament
could no longer ‘make a man a woman” in Nigeria. As a matter of fact, Parliament in the
country from independence to the end of the First Republic was only sovereign to the extent
that the Constitution permitted it.

In its broadest sense, Parliamentary Sovereignty means that an elected body of men (by
whatever name called) whether Parliament, Congress, House of Representative, etc can pass
any law on any topic which affects the interests of person. It means that there is no person
or body whose legislative power competes with it or overrides it.

According to Sir Erskein May, ‘a law passed by the British Parliament may be unjust and
contrary to sound principles of government, but Parliament is not controlled in its discretion
and when it errs, its errors can only be corrected by itself ‘

Note that, although in Britain, Parliament is the Supreme law-making Body; nevertheless, it
cannot pass any law which would bind its successors. In effect, Parliament being Supreme
over the law cannot by law effectively make changes in the law derogative to its supremacy.

This doctrine has given rise to the general belief that there is an inherent quality of supremacy
in every parliament of a state that is independent and that such parliament is not fettered in
its legislative powers. This line of argument is, however, not tenable in countries having rigid
or written constitution like United States of America, Austria, Canada, Zambia and Nigeria.

CONSTITUTIONAL SUPREMACY
The supremacy of the constitution clearly expresses the central legal concept of the doctrine
that under the Nigerian constitutional arrangement, the constitution is the substantive and
supreme law of the land. Hence, any legislative enactment, or executive or administrative
42
action, at the Federal, State or Local Government level, that is inconsistent with the
constitution shall be declare null and void, as expressly stated in section 1 (1) and (3) of the
1999 Constitution. For instance, Section 1 of the Republican Constitution of Nigeria, 1963
specifically provided that the Constitution finally have the force of law throughout Nigeria.
And subject to section 4 of the Constitution, if any other law including the Constitution of
Region is inconsistence with the Constitution, the Constitution shall prevail and that other
law shall to the extent of the inconsistency be void. (now section 1 (1) and (3) of the 1999
Constitution).

Prior to the intervention of the Military in 1966, the reservation in respect of the Section 4
of the Constitution was very important in that it showed that the authority of the Constitution
was not subject to the overriding power of the Parliament to alter any provision of the
Constitution. It is also important to note that while the British Parliament cannot pass any
law which would bind its successors, a written Constitution stands for all times until it is
suspended, amended or abrogated. Therefore, when in January 15, 1966, there was a Military
coup d’etat in Nigeria, the provisions of sections 1 and 4 of the 1963 Constitution were
suspended by the Military by the promulgation of the Constitution (Suspension and
Modification) Decree No 1 of 1966. Section 1 (2) of the Decree No.1 provided that: ‘subject
to the Decree and any other Decree the provisions of the Constitution which were not
suspended by Section 1 of the Decree would have effects subject to the modification in
Schedule 2 of the Decree’.

The provision of Section 1, Schedule 2 was to the effect that the 1963 Republican
Constitution would not prevail over a Decree and nothing in the Constitution should render
any provision of a Decree void to any extent whatsoever. The case of N.K Adamolekun v The
Council of the University of Ibadan (1968) NMLR 253 illustrates the principle of the
Supremacy of a Decree/Edict over the Constitution, while the case of Senator Chief T.A
Doherty v Sir A.T. Balewa (1961) All NLR 604 portrays the supremacy of the Constitution
before the Military incursion in government in Nigeria.

Following the 1963 Republican Constitution, both the 1979 and 1999 Constitutions by their
Section 1 provides thus:

“(1). This Constitution is supreme and its provision shall have binding force on all
authorities and persons throughout the Federal Republic of Nigeria;
(2). The Federal Republic of Nigeria shall not be governed not shall any person
or group of persons take control of the government of Nigeria or any part
thereof, except in accordance with the provisions of the Constitution;
(3). If any other law is inconsistence with the provisions of this Constitution, this
Constitution shall prevail, and that other law shall to the extent of the
inconsistency be void”.

By virtue of the Section 1 (2) of the 1999 Constitution, it would appear that Military coup
detat has been outlawed. In any case, it means that any attempt to forcibly take over the
government of Nigeria, unless as provided by the Constitution, is unconstitutional and apart
from the provisions of the criminal law prescribing penalty for such omissions or
commission, this provision can be invoked.
43
The third provision similarly forbids the taking over of the government of Nigeria by force
or the promulgation of any law superior to the Constitution. The result of course is that even
after a bill has been passed by the House of Representatives and the Senate and has been
signed by the President and thus becoming a law on the face of it, it can still be challenged
on the basis that it is unconstitutional. In the case of Ekulo Farm v UBN PLC (2006) 6 SCM
78 at 98. The respondent claimed the sum of N4,912,797.30K (Four Million Nine Hundred
and Twelve Thousand, Seven Hundred and Ninety-Seven Naira, Thirty Kobo Only), with
interest at the rate of twenty one percent from the appellant. The case was brought under
undefended list. The appellants failed to file their notice of intention to defend the suit
together with an affidavit disclosing their defence, within the time allowed by the rules of
court. However, the appellant later filed a motion for enlargement of time to file a notice of
intention to defend the suit. The application was opposed by the respondent, but the court
after hearing argument from both sides granted the appellants an unconditional leave to
defend the action and transferred the suit from undefended list to the general cause list. The
respondent appealed against the decision of the lower court to the Court of Appeal, which
Court allowed the appeal by holding that the decision of the trial court was null and void and
that Section 220 (2) (a) of the 1979 CFRN does not apply to null decisions. Consequently,
the appellant appealed the decision of the Court of Appeal and contend that the respondent
has no right to appeal against the decision of the trial court transferring the suit from the
undefended list to the general cause list and as a result the Court of Appeal lacks jurisdiction
to entertain the matter by virtue of Section 220 (2) (a) which provides thus:

“Nothing in this section shall confer any right of appeal:- (a) from a
decision of the Federal High Court or any High Court granting
unconditional leaves to defend an action”.

The Supreme Court per W.S.N Onnoghen JSC lending credence to the position of appellant
held thus:

“It is settled law that the jurisdiction of the Court of Appeal to hear and
determine appeals is statutory see Adigun v A.G Oyo State (1989) 2 NWLR
(Pt 56) 197. Also settled is that the exercise of a party’s right of appeal is
statutory. It is my view that by virtue of the provisions of Section 220 (2) (a)
of the 1979 Constitution, the respondent has no right of appeal against the
decision of the trial court granting appellant unconditional leave to defend
the action neither has the Court of Appeal the jurisdiction to entertain and
determine that appeal. It is also settled law that the Constitution and its
provision constitute the Supreme Law of the land and that any law or
decision which is inconsistent with it or its provisions is to the extent of that
inconsistency void”

See further the case of Fasakin v Shosanya (2006) 7 SCM 79.

In conclusion, while Britain enjoys Parliamentary sovereignty, Nigeria has supremacy of the
Constitution subject to the supremacy of Decrees during Military administration.

44