Administrative Adjudication

Administrative adjudication is the process by which an administrative agency issues an affirmative, negative, injunctive, or declaratory order. It is the process whereby administrative authorities exercise judicial or quasi-judicial powers for the finding of facts, application of Law to facts and the determination of the rights and obligations of persons.

The idea of Administrative adjudication has been seen as an obstruction to the notion of separation of powers as judicial powers are constitutionally vested in the judiciary under S.6(1) and (2) of the 1999 constitution. Administrative agencies are executive organs and as such, should not possess such judicial powers. This conflict has been resolved with the notion that these Administrative authorities basically exercise supervisory jurisdiction in its use of judicial or quasi-judicial powers. Furthermore, the use of powers cannot be abused as it is regulated by the Principles of Fair hearing or the common law doctrine of natural justice that consists of two maxims: Nemo judex in causa sua (a man may not be a judge in his own case) and audi alteram patem (hear the other side). As such, it was held in National Electoral Commission v Nzeribe that a tribunal remains a tribunal subject to the supervisory jurisdiction of a court of record no matter how highly clothed with power such a tribunal is.

However, an inferior court called the National Industrial Court has been elevated to the status of a superior court of record upon its being of coordinate jurisdiction with regular courts.

It should be noted also that Administrative adjudication is recognized under S. 36 of the 1999 constitution evidenced by the use of the word “tribunals”. As stated by the Court in Obi v Mbakwe, administrative adjudication was conceived know order to ensure a smooth running of the administrative machinery by allowing agents of the executive to determine the rights of people in accordance with certain laws that might be made from time to time.

Administrative adjudication may however differ from the courts in the senses of informality and not being rigidly bound by precedents. There is also the feature of not being occupied with procedural technicalities. However, just as a court of law, an administrative adjudication body must have competence and jurisdiction for the proceedings before it for its decision to be valid. This was stated in the case of Egunjobi v FRN.

Definition of Administrative Adjudication

The definition of an administrative tribunal has been deemed to be a difficult process as these tribunals share many characteristics with regular courts. Thus, it is often better for its characteristics to be discussed. Some of these characteristics include the ability to make final and legally enforceable decisions, independence from any department of government, the holding of public hearing, the possession of expertise, judicial nature, the provision of appeal to the High court on point of law, inter alia.

Some of these tribunals include: Election Petition Tribunals, Code of Conduct Tribunal, Legal Practitioners Disciplinary Tribunal, Medical and Dental Disciplinary Committee, etc. These features were absent in “Military tribunals” being tribunals created during the Military regime. The jurisdiction of these “military tribunals” was later transferred to Federal and State high courts by the Tribunals (Certain Consequential Amendments) Decree, No. 69 of 1999.

Justification for Administrative adjudication

1. It is cheaper: Administrative adjudication is cheaper both from the litigant’s point of view and from the governments or administrative body establishing it. It is usually ad-hoc and constituted when needed as compared to regular courts which are large and require a lot of money and facilities to maintain
2. It is faster: Administrative adjudication process is needed for deal in with matters expressly without delay and need for adjournments. They are tribunals required to decide on cases within a limited time frame. For e.g. election tribunals are supposed to hear and discharge cases in other to allow the new government settle down.
3. Matters are heard by relevant experts: Tribunals entertain cases that require technical expertise which is not so in regular cases. The tribunal judges usually sit with such persons as assessors that have the requisite technical know-how of the issues brought before it.
4. Aids in the implementation of government policies: Administrative agencies aid the government in the implementation of social, economic and political objectives. This is done when a panel submits its report, the government can look into the areas where changes and restructuring are needed thereby implementing its wishes. This is not so of regular courts which as a result of its doctrine of judicial precedent, such innovations are impeded.
5. There is informality in its procedure: Administrative tribunals are usually informal in its proceedings devoid of the paraphernalia of the regular courts. It does not have the formalities of regular courts such as the elaborate dressing of barristers. The ideal goal is fact finding and ensuring justice. In its proceedings, it guarantees that the average person feels at home when performing his expected role either as a party or witness.

Criticisms of Administrative adjudication

1. There is the lack of legal knowledge: The members of tribunals usually lack fact finding abilities and general knowledge of law. This is because most members of tribunals are assessors although the chairman is usually a lawyer, trained in law.
2. Loyalty to the government: The members of administrative tribunals are usually formed by the government and as such they usually carry out their proceedings in conformity with the wishes of the government. Such a system is impossible for fair hearing. Consequently, persons brought before these tribunals are regarded as casualty figures as they are usually convicted quickly in order to appease the government. It should be noted that the quality of justice depends on the quality of persons administering justice as well as the law being administered. Thus where the persons administering justice are faulty, no matter the quality of the judicial system, it will function poorly.
3. Lack of observance of legal procedure: Tribunals are bound by judicial precedent and as such they reach certain decisions without sufficient grounds. The Supreme Court has usually frowned at the procedure of judicial and quasi-judicial bodies. Thus in FSC v Laoye, the Supreme Court, dismissed the appeal of the appellants and reversed the decision to remove the defendant from office. Oputa noted that: “hearing by one body and judgment by another does not constitute fair hearing”
4. Secrecy in sittings: The trials of tribunals are usually in secret. Denying journalist and interested members of the public access. The atmosphere of the tribunal is one which denies the parties of their rights and does not follow the due process of law. Thus when the tribunals give judgments, it is usually viewed by society as unjust.
5. Application of martial or draconian laws: The laws establishing tribunals are usually willingly or unwillingly designed in a draconian manner. The laws are usually retroactive or better put, designed in such a manner as to ensure the conviction of the accused. Thus the mere mention of the word “tribunal” stares hate and fear in the minds of people. This fear is usually genuine in the light of the fact that tribunals have been known to be used as instruments of government (especially the military) in perverting the cause of justice.
6. Inadequate opportunity for self-defense: tribunals have been known for denying people their right to life, property and careers as well. Decisions of tribunals affecting the lives, property and future of persons have been reached without full hearing or no hearing whatsoever. Thus the accused counsel is usually given no time to prepare a defense. Consequently, he may abandon his client who lacks knowledge of legal procedure. At the mercy of the tribunal, such a person may lose his property, career or even life as such tribunals is usually quick to do the bidding of the government.

Development of Administrative adjudication

The rationale for the development of administrative adjudication came after World War II. The Committee on Administrative Tribunals and Enquiries (the Frank Committee) did the spade work that brought about reforms made through the Tribunals and Inquiries Act 1958. The Committee came up with the understanding that the Courts could not be seen as suited for solving all forms of disputes, as the Courts were faced with internal challenges in the first place. This in turn, hampered on the people getting actual justice when needed.

This welfare driven rationale became relevant in post-independence Nigeria that witnessed the expansion of government’s administrative and adjudicative machinery. After Nigeria gained independence from England it enacted the Commissions and Tribunals of Enquiry Act 1961, which became the legislative watershed for the modern administrative adjudication in Nigeria, that empowered the Prime Minister of the Federation to set up a Commission of Inquiry into: “(a) any matter or thing within or affecting the general welfare of the federal territory; or (b) any matter or thing within the federal competence anywhere within the Federation, in respect of which in his opinion, an inquiry would be for the public welfare; or (c) the conduct of any chief; or (d) the management of any department of the public service.”

However, the first documented administrative adjudication body established in Colonial Nigeria arose out of the Disturbances in 1929. This was followed by the Report of the Tribunal appointed to enquire into allegations reflecting on the Official Conduct of the Premier of, and certain Persons holding Ministerial and other Public Offices in the Eastern Region of Nigeria (Chairman: Sir Stafford Foster-Sutton, KCMG, OBE) on December 20th of 1956, and the Report of the Commission appointed to enquire into the Fears of Minorities and Means of Allaying Them, (Chairman: H. Willink) July 30th, 1958.

The Tribunals of Inquiries Act 1966 (Decree No. 41), which substantially replicated the Commissions and Tribunals Act of 1961, gave impetus to the increased resort of the Military Regimes to the setting up of Commissions of Enquiry and Tribunals in preference to the regular courts. Although, the Tribunals of Inquiries Act 1966 was part of the existing laws under the 1979 Constitution with full amplitude of application throughout the whole federation, however, it became eviscerated under the 1999 Constitution when the Supreme Court held, inter alia, in Fawehinmi v Babaginda that, “the power to make a general law for the establishment and regulation of tribunals of inquiry in the form of the Tribunals Inquiry Act 1966 is now a residual power under 1999 Constitution belonging to the States. The Supreme Court clarified that “the power resides in the National Assembly” to establish and regulate tribunals of inquiry in regard to the Federal Capital Territory.

Types of Administrative Adjudication

1. Inquiry

The development of statutory inquiry has been traced to the 19th century and early examples of its use can be found in the UK e.g., the Inclosure Act of 1801. A prominent character of inquiry is that it is fact finding and for the collection of information actions that will form the basis for recommendation of the inquiry to the deciding authority. The commission of inquiry is not bound by rules of evidence or procedure that obtain in a regular court. It is however bound by the principles of fair hearing. The power to create statutory tribunals is now vested in the hands of the national assembly as consolidated by the case of Fawehinmi v Babangida.

2. Investigating panel

This form gathers information or evidence to enable it to make recommendations which form the basis of decisions made on cases brought before Disciplinary Tribunals. Witnesses cannot be found guilty of any “charge” arising from the investigation of the panel. The case of Odigie v Nig. Paper Mills elucidates the stayed fact. As can be seen, there is a relationship between an Investigating panel and a Disciplinary tribunal. The Supreme Court in the case of MDPDT v Okonkwo stated the position of the investigation panel and the disciplinary tribunal under the Medical and Dental Practitioners Act.

There are some instances however where the investigating panel will not be so strictly bound by the rules of natural justice, where an appellant is amply availed the opportunity of being heard by the disciplinary tribunal. See the case of Baba v Nigerian Civil Aviation Training Centre.

3. Disciplinary Tribunal

This is recognized by S. 36 of the 1999 constitution. The disciplinary tribunal exercises power that is judicial in nature. However, it’s exercise of this power must conform with the rules of natural justice as was stated in the case of Oloruntoba-Oju v Abdul-Raheem. Thus, where a person is invited as a witness and then treated as a person accused, it is viewed by the court as a breach of a right to fair hearing and the principles of natural justice.

4. Statutory Tribunals

They are specifically established by statute or constitution and are subject matter specific e.g., the Tax appeal tribunal. There are however some statutory tribunals which are referred to as pseudo-court tribunals because they are not subject to the supervisory jurisdiction of the High Court. Instead, appeals from such tribunals go to the Court of appeal. This is because their special jurisdiction is exclusive to that of the High Court.

NB: The National Industrial court is a unique example of a statutory tribunal that transformed into a court of record through constitutional alteration.

5. Military Tribunals and Court Martial

Military tribunals are tribunals established pursuant to the provisions of decrees promulgated by military regimes to execute public policy issue as formulated by the military regimes for the speedy and cheap dispensation of justice. These tribunals had the inclusion of members of the armed forces known the membership and chairmanship of the tribunals by members of the armed forces where such tribunals exercise jurisdiction and power over civilians in civil non-martial matters. The most criticized feature of the military tribunals is the absence of supervisory or appellate jurisdiction over them by the High Court and the appellate courts die to the presence of ouster clauses in the enabling decrees that established them.

A court martial on the other hand, could be a general court martial league a special court martial, manned by military personnel. The court martial is not only subject to judicial review but appeals from it will lie to the court of appeal by virtue of S. 240 of the 1999 constitution.

Control of Administrative adjudication

1. Constitutional control

S. 6(1) and (6)(b) conger judicial power on the courts which include the power of judicial review of the exercise of executive and administrative powers. This principle was clearly articulated in the case of Okeahialam v Nwamara by the Supreme Court.

There is also the principle of fair hearing entrenched in S. 36(1) of the 1999 constitution has been interpreted by the courts to control administrative adjudication. This has been held to be the most effective check on administrative adjudication in Nigeria.

One can also see the fundamental rights provided for under Chapter IV of the Constitution. See the case of MDPDT v Okonkwo where the right of a patient to privacy and religion was upheld by the court as a defence for the defendant medical practitioner.

The Supremacy of the 1999 constitution as entranced in S. 1(1)(3) constitutes a veritable control over the executive administration in the exercise of administrative adjudication powers. See the case of AG Federation v Atiku Abubakar where S. 308 conferring immunity was upheld by the court as a defence against determinations of allegations in contravention of the Code of conduct act by an executive official.

2. Judicial Control: Fair Hearing

Fair hearing under S. 36(1) of the 1999 constitution has been interpreted to encompass the principles of natural justice being audi alteram patem and Nemo judex in causa sua. S. 7 of the African Charter on Human and People’s Rights (Ratification and Enforcement) Act contains similar fair hearing provisions which have been held by our courts to be enforceable in Nigeria.

The ingredients of fair hearing must be present in any administrative adjudication proceedings involving the determination of the civil rights and obligations of any citizen include the following:

There must be an identifiable person or body of persons empowered and capable of going into the issues in dispute

The person to be adversely affected must be afforded the opportunity to:

• Know the case against him
• Make representation by himself or through someone else on his behalf
• Be present at the hearing or enquiry, if he likes
• Effectively prepare his defence and answer the charge against him

See the case of Ridge v Baldwin where the House of Lords invalidated the dismissal of the Chief Constable of Brighton Police as it was done without giving him a hearing. In the case of Garba v University of Maiduguri, the Court held that the principles of natural justice were not adhered to as the appellants were not afforded any opportunity of fair hearing since they did not know the evidence given against them. In the case of Egwu v Uniport also where a student was dismissed from the defendant school for examination malpractice without being invited to appear before any panel, the court held that there had been no application of the rules of natural justice.

The Right to confront and cross-examine the accusers is also associated with the principles of natural justice. Thus, evidence must not be hidden from the accused person. In the case of Denloye v MDPDT, the evidence of one Dr. Tai Solarin and others were received and hidden from the appellant and it was not until he appeared before the tribunal that he knew of the evidence against him. The Court held that this was a violation of the principles of fair hearing.

There is also the right to counsel. See the case of Olaoye v Chairman, MDPDT where the defendant interrupted the presentation of the appellant’s defence by his legal practitioner, showing complete disregard for the presence of the said counsel during the hearing. The court held that this was contrary to the principles of fair hearing.

Furthermore, where the allegation or accusation in a charge of misconduct discloses the commission of a crime or offence, the administrative adjudication shall lack the competence to try such an offence it crime. There is however an exception to the general rule established by the case of Dongtoe v CSC, Plateau State that where the charge in question doubles as a crime under the criminal code and the penal code and the person accused has admitted to committing the crime, the administrative tribunal has the jurisdiction to proceed to sanction the erring person without first referring the matter for trial and determination before a court of competent jurisdiction because the admission of guilt discharges the burden of proof placed by law on the accuser.

The test for the determination of bias in any proceeding is objective. In the case of Alakija v Medical Disciplinary Committee thus, the registration who was in fact, the prosecutor, took part in the committee’s deliberations. This was held by the court to be a derogation from the principle of nemo judex in causa sua. The same decision was held in LPDC v Fawehinmi where the AGF who was the chairman of the committee was found to be the accuser, the prosecutor and judge at the same time.

Furthermore, in cases where domestic or local remedies are provided substantively by Statute, the courts have held that the neglect to exhaust all the remedies available to the disciplined person at the domestic forum will deny him the accrual of a cause of action in court until he has complied with the requirements of the enabling stature accordingly. This was the statement of the Court in the case of Ayeni v Obasa.