There have been some reactions by some lawyers when the Honourable, the Chief Judge of the High Court of the Federal Capital Territory- Abuja, gracefully, through the Chief Registrar of the Court, issued a notice mandating the issuance of notice to counsel at least 48 hours before the day that the court concerned would not sit. These lawyers with due respect to them, commented ‘it is not a law’! Then, I asked myself the question ‘are Nigerian administrative made rules not laws’?! Then, I felt there is need to educate respectfully about administratively made rules which are regarded as administrative laws or in another way, ‘delegated legislations’ and having the force of law. These lawyers might have thought that because no sanction is specified in the notice, then, it has no force of law. I wish to quickly just note that there are relevant sanctions already under the extant Public Service Rules for insubordination etc., of erring public servant which those registrars to whom the notice has been compelled are aware of. I have to just lay this issue of sanction to rest once and for all and which I have just done now. That issue is settled. Therefore, this paper aims at shedding more lights on the status and relevant of Nigerian Administrative Laws. Some lawyers who have no knowledge of administrative laws, might actually, respectfully, misconstrue what administrative decision making, rules and procedures are, hence, this topic.
First and foremost, according to Ese Malemi, The Nigerian Constitutional Law, Princeton Publication Co., Ikeje, Lagos, Nigeria, First Edition, 2006, page: 152, ‘Administrative decision and rule making is the making of rules, regulations, determinations, policies or decisions to regulate a given thing or situation. Rule-making is the formulation, amendment, repeal of laws, policies or decisions by an administrative authority for the purpose of carrying out its objectives. Administrative rule making and decision making includes the choosing of a course of action from among the choices available, in dealing with or responding to a public problem. Thus, an administrative decision or rule may include and mean:
- Administrative laws, rules and regulations;
- Administrative decision, policy, determinations or directives to act one way of the other;
- The choice of a course of action from among alternatives to deal with a public problem; and so forth.
Thus, for instance, in an average office, rules, decisions, policies and directives are issued from time to time to guide the personnel in the discharge of their duties or to guide persons who come to do business with such office, body or organization.’ Ese Malemi (op. cit.) at page 3 also explained that ‘Administrative law is the law which regulates the organization and conduct of government and administrative authorities, their relationship with one another and members of the public and provides remedies for breaches of rights.’.
From the above reference about administrative law, it is no doubt that the said notice issued by the Chief Registrar of the High Court of the FCT-Abuja, on the authority of the Honourable, the Chief Judge, is a directive directing those registrars of the courts to comply with the directive. Also, the High Court is a government’s authority administratively. Therefore, the administrative directive made by the notice having complied with the procedures for making same is valid and is a law binding on those mandated by the directive. More so, the administrative discretion permits the Honourable, the Chief Judge of the Court to direct the Chief Registrar of the Court to make such administrative decision/rules/directive by the notice and the notice speaks for itself on the authority issuing same. So, there ought not to be any argument about whether the said notice is a law or not as made by some lawyers in my presence. Also, it must be understood that ‘law’ is not restricted to statutory laws made arising from legislative powers conferred by the Constitution of the Federal Republic of Nigeria. The legislature has in making laws, delegated some of their powers of law-making to administrative authorities (called delegated powers) to make administrative decisions, rules, regulations, directives, etc., in their administrative capacities to ease decision and law-making and in order to avoid the legislatures having to go through rigorous law making processes over issues that an administrative authority would have resolved easily without rigorous process. These administrative laws made by an administrative authority is also called ‘delegated legislations’ (in other words, they are also legislations/laws). See: Chapter three of the Ese Malemi, Administrative Law (op. sit). Also, under section 37 of the Interpretation Act, 2004, ‘subsidiary instrument’ means any order, rules, regulations, rules of court or by-laws made either before or after the commencement of this Act in exercise of powers conferred by an Act’. It is also clear that the powers of the Honourable, the Chief Judge to make rules, regulations and or the directive in question arose from the High Court of FCT-Abuja Act, Laws of FCT, Abuja, 2007.
Finally, therefore, it is my humble submission that Nigerian administratively made laws are laws having the binding force of law in an administrative capacity. Also, since the directive issued by the Chief Registrar of the court on the authority of the Honourable, the Chief Judge was part of administrative laws, same is binding and has the force of law especially against those registrars directed to so act.