Administrative Remedies
The fundamental concept of English and Nigerian law on right and remedies is encapsulated in the Latin maxim, ubi jus ibi remedium meaning Wherever there is a right, there isn’t remedy. Remedies have been classified into Administrative (non-judicial) and Judicial remedies. The focus at this stage is on administrative remedies.
Administrative remedies are often pursued because they are expeditious and inexpensive. The challenge with these remedies however is their unpredictability and non-recognition by law.
Types or forms of Administrative remedies
- Domestic or Internal Procedures
- Appeals and Petitions
- Tribunals and Inquiries
- Ombudsman
- National Human Rights Commission
- Code of Conduct Bureau and Tribunal
- Complaints and Petitions to the Legislature
These are remedies provided for by Statutes regulating an organization. Such statutory domestic procedures have been held by the courts to be mandatory and must be explored by the aggrieved person before instituting any action in a court of law. This was the approach of the court in the case of Nigerian communications commission v MTN Nig. Communications Ltd where the provisions of sections 87 and 88 of which provides for internal administrative remedy were enforced to declare the institution of the suit premature.
A peculiar form of internal remedy is the requirement of pre-action notice. Per Ogunbiyi JCA in Abraham Gbadamosi v Nigerian Railway Corporation, it is to allow the proposed defendant time to consider whether to make reparations to the intending plaintiff or not.
This form of remedy is placed within the hierarchical structure of the administration whereby the decision of a lower cadre official is made subject to appeal or petition to a higher cadre of the administration. Appeals may even be formally established within the structure of administrative adjudication whereby appeals may lie from one administrative adjudication body to another.
Petitions are more common than appeals and the most common form of petition is known as “anonymous petition” whereby the identity of the petitioner is undisclosed.
Inquiries are mainly fact finding bodies which find facts and make recommendations to the administration. Tribunals on the other hand do not only make findings but also make decisions based on those findings.
This is also known as the Public Complaints Commission (PPC). It was a body established in 1975 by the Public Complaints Commission Decree No. 31. It is constitutionally secured by S. 315(5)(b) of the Constitution. According to the ex-President Olusegun Obasanjo, the commission was established to create a platform through which everyday people in the society could be defended and secure justice.
The Ombudsman has the purposes of serving as a check known government activities, overseeing the investigation of complaints, circumventing the high cost of access to the courts, saving time and serving as an organ for government to receive feedback from the public.
The commission’s powers have however been hindered by provisions in S. 6-8 of the PCC Act. For instance, the commission can only make recommendations after investigation and complaints cannot be made public.
This was established by the NHRC Act No. 22 of 1995 and amended by the NHRC (Amendment) Act of 2010. The functions of the commission are enumerated in S. 6 of the Amendment Act, the main function dealing with involvement in all matters relating to the protection and promotion of human rights guaranteed by the Constitution.
The aim and objective of the Code of Conduct Bureau is to establish and maintain a high standard of morality in the conduct of government business and to ensure that the actions and behavior of public officers conform to the highest standard of public morality and accountability.
The functions of the Bureau are stipulated under S. 3 of the Code of Conduct and Tribunal Act.
This form of remedy revolves around constituency representation. Thus, persons can make complaints to officials representing their constituency within the legislature. These officials can then place such complaints before the respective House of Assembly, Representatives or Senate. Submissions of complaints by citizens could also be made through the Clerk of the respective legislative House.
This form of remedy however has a flaw. The National Assembly is not a court of Law. As such, any compensatory award given by the National Assembly can be successfully challenged at Court.