DEEPER INSIGHT INTO

NIGERIA’S PUBLIC

ADMINISTRATION

EDITED BY

B. OYENIRAN ADEDIJI (Ph.D)

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2013 Banji Oyeniran Adediji. All rights reserved.

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Published by AuthorHouse 11/12/2013

ISBN: 978-1-4918-3472-5 (sc)

ISBN: 978-1-4918-3443-5 (hc)

ISBN: 978-1-4918-3444-2 (e)

Library of Congress Control Number: 2013920746

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TABLE OF CONTENTS

ACKNOWLEDGEMENT

PREFACE

1.   Impact Of Nigeria’s Customary Law On Nigeria’s Administration Of Justice

Adediji, Banji Oyeniran (Ph.d)

2.   Impact Of Administrative Law On Nigeria’s Public Administration

Adediji, Banji Oyeniran (Ph.d)

3.   Implementation Challenges Of The Anti-Corruption Campaign In Nigeria: The Media Imperative:

Izuogu, Kingsley Chukwuemeka

4.   Poverty Allevation In Nigeria

Agbionu, Clementina And Agbionu, Edwin (Ph.d)

5.   An Evaluation Of Effectiveness Of Economic And Financial Crime Commission (Efcc) In Checkmating Public Sector Accountants Operation In Nigeria

Ezeani, Nneka Salome, (Ph.d) And Uguru, Leonard C

6.   Management Paradox Of Nigeria’s Diversities: Oscillation Between Centralization And Decentralization

Adediji, Banji Oyeniran (Ph.d)

7.   True Federalism Or Total Disintegration: Critical Option For Nigeria In The Next Political Dispensation For Nigeria In The Next Political Dispensation

Adediji, Banji Oyeniran (Ph.d)

8.   Judicial Enforcement Of Accountability Of Local Government Councils For Breach Of Ultra-Vires Doctrine

Adediji, Banji Oyeniran (Ph.d)

9.   Leadership Question And Anti-Corruption Crusade In Nigeria

Ajagun, Samuel Olusola (Ph.d)

10.   Participation Of The Private Sector In Grassroots Sports Development As An Effective Strategy For Corporate Image Boosting

Ochugudu, Achoda Ipuele (Ph.d)

11.   Ethical Dilemmas Of Nigerian Journalists: The ‘Sad’ Imperative

Izuogu, Kingsley And Nwachukwu, Chidiebere

12.   Information Brokerage: Contrivance For Entrepreneurial Approach To Information Services In Nigeria

Ojo, Joshua Onaade

13.   The Role Of Government In Nigeria’s Bureaucratic Corruption Revisited: The Case Of Continuing Politicization Of The Civil Service

Adediji, Banji Oyeniran (Ph.d)

14.   Policy Implementation Challenges On Poverty Alleviation: Nigeria Perspective

Azunwena, Reginah Nchelem (Ph.d)

15.   Public Enterprise Management In Nigeria

Chief Jude, Nwoka (Ph.d)

16.   Emergent Structures In Local Government Administration In Nigeria: Implications To Planning

17.   Local Government And Intergovernmental Fiscal Relations In Nigeria

18.   Urban Administration In The Context Of Globalisation In Nigeria

19.   The Values And Problems Of Television Mediation Mechanism As An Alternative Dispute Resolution Among The Yoruba Of South-Western Nigeria.

20.   Centrifugal Tendencies As Impediments To The Consolidation Of Public Administration In Nigeria

21.   The Nigeria’s Elite And Their Perception Andtreatment Of Public Accountability Revisited

22.   The Social Cost If University Closures In Nigeria—A Case Of Rsust, Port Harcourt

23.   Socio-Cultural Constraints To Law Enforcement In The Nigeria’s Local Government Services: The Case Of The Family System

24.   Laisser Faire, Attitude Of The Governed And Accountability Of Public Office Holders In Nigeria

25.   Good Governance And Imperative Legal Reform A Case Study For Sustainable Development In Nigeria

26.   Overcoming Gender Inequality In Nigeria

27.   Women’s Participation And Gender Mainstreaming In Local Governance In Nigeria

28.   Market Women And Governance In Post Colonial Ibadan, 1960-1980

29.   Legislative Members, Inter-Personal Relationship, Conflict Management, Disciplinary Procedure And Panacea For Legislative Executive Frictions

30.   Food Security In Nigeria And The Challenges For Agricultural Extension Services

31.   Women’s Participation In Politicsfor Sustainable Democracy

32.   Mining Operations And Environmental Degradation—Issues And Implications For Development In The Niger Delta Region Of Nigeria

33.   Transborder Crimes And National Security In Nigeria

34.   The Role Of Local Government In Community Development Scheme In Nigeria

35.   Come Let Us Change The World: God, Man And The World

ACKNOWLEDGEMENT

I hereby wish to register sincere appreciation to all authorities in the field of Public Administration, whose writings or speeches and/or pioneering efforts have indirectly encouraged, influenced and enriched this exercise, I particularly hereby acknowledge with respect the assistance I received from

Professor J.A Fabayo, Department of Economics, Faculty of Social Sciences, Obafemi Awolowo University, Ile-Ife, Nigeria.

Professor David A. Ijalaye, Faculty of Law, Obafemi Awolowo University, Ile-Ife, Nigeria.

Professor Olu Adediran, Faculty of Law, University, Ile-Ife, Nigeria.

Professor Ademola Popoola, Faculty of Law, Obafemi Awolowo University, Ile-Ife, Nigeria.

Professor Wale Adebayo, Former Dean, Faculty of Agriculture, Obafemi Awolowo University, Ile-Ife, Nigeria.

I also wish to express deep appreciation to all my colleagues and coworkers at the Department of Local Government Studies, Obafemi Awolowo University, Ile-Ife, for the support and co-operation I received from them, which made the publication possible.

PREFACE

In Nigeria Public Administration has become the focus of attention for all and sundry: curious political scientists, jealous state government observers, apologetic practitioners of Local Government. This book Deeper Insight into Nigeria’s Public Administration is an attempt to treat in essay from a few of the aspects of Public Administration which have recently gained the trend of intensive research focus and scholarly attention for the authors. It is expected that the book would be of interest to scholars and students of Public Administration, political scientists and Nigerian policy makers. The main aim is to stimulate and kindle more exhaustive discussions, reflections, and researches on such issues. The book is made up of thirty three chapters.

In Chapter 1, Adediji, Banji Oyeniran highlights several impacts which customary law has on Nigeria’s administration of justice from the submission customary law is revealed to promote reconciliation, encourages and facilitates speedy and amicable settlement of disputes among the parties subject to it. In the area of land, in area of intestacy, in area of marriage, in question of chieftaincy matters, security, as well as testamentary dispositions. Its major impact is the relief of the higher levels of courts of its being inundated with cases which sometimes take up to five, eight and even ten years to resolve.

In Chapter 2, Adediji, Banji Oyeniran sheds light on the impacts which Administrative Law has on Nigeria’s Public Administration, especially how the observance of the four key principles of separation of powers, the Rule of law, supremacy of the constitution, and the principle of natural justice are strictly imposed on Public Administration. The paper recommends continuing observance of the principles in order that Nigeria’s Public Administration would have a record of good governance.

In Chapter 3, Izuogu, Kingsley examines how the moral decadence especially corruption has permeated Nigeria’s society, and has continued in crescendo (unabated) despite tough and landable policies and programmes which successive leaders have tried in vain. He perceives the media’s role as inevitable in successful implementation of such government policies and programmes so long as if overwhelmed, and decentralized. It is accepted that it has the responsibility of initiating what members of the public can see, or know about in order to effect positive changes in the moral conduct and societal value of Nigerians.

In Chapter 4, Agbionu, Clementina. and Agbionu, Edwin focus attention on how since independence the poverty level in Nigeria has consistently increased despite all strategies adopted and tried to alleviate it, and goes as far as to present a framework that could be adopted to reduce poverty level in Nigeria.

In Chapter 5, Ezeani, Nneka, And Uguru, Leonard reveal a paradox in which the accountants who are presumed to be reliable persons in enforcing financial accountability in public institutions are infact perpetrators of financial crimes. The paper recommends a code of ethics and its enforcement so as to bring about positive changes in the accounting profession.

In Chapter 6, Adediji, Banji Oyeniran studies how the present system of Government and administration in the so called federation of Nigeria oscillates between Centralization and Decentralization and how presently this confusion promotes threatening centrifugal tendencies. He recommends adoption of appropriate decentralized system to avoid disintegration.

In Chapter 7, Adediji, Banji Oyeniran addresses the quasi centralization in which Nigeria operates its federation, and the high level of risqué of possible disintegration to which Nigeria exposes itself if not urgently addressed. At present Nigeria experiences over powerful centre, centralized democracy, monopoly of national resources which every entity except those at the centre threaten to resist at present.

In Chapter 8, Adediji, Banji Oyeniran examines the potency of ultra-vires doctrine in checking injustice arising from excesses of Local Government officers in Nigeria. Starting from a brief explanation of the concept, the study goes ahead to illustrate with decided cases the grounds on which the doctrine would normally be invoked. The paper concludes that the potency of this doctrine as a check on the excesses of Local Governmental officers lies not only on being readily available for invocation at the instance of the courts but also in the fact that the ambit of actions or omissions which can be held ultra-vires by the courts is presently unknown, and thus open to admissions of other acts or omissions whenever the court feels it necessary. The court would however not do so unless someone launches complaints at the court.

In Chapter 9, Ajagun, Samuel examines how poor leadership commitment, and corruption encouraged by constitutional protection of immunity they enjoy while in office have jointly and severally made the policies ineffective. The paper recommends that Nigerian leaders or the Government should reconsider the rational or otherwise behind such immunity with a view to ensuring that future sinners should not be left unpunished, and the introduction of ethical education at all levels, in order to pave way for dedication, and commitment to national interest rather than personal interest and review of immunity cushon, provided by the constitution which encourages corruption and rendering the institutions as ineffective entities.

In Chapter 10, Ochugudu, Achoda Ipuele studies the poor image of the corporate sector in local communities and traces this image to havocs like pollution, oil spillage, water contaminations etc which result from their operations. The paper recommends active participation of the private sector in grassroots sports development as an effective strategy for corporate image improvement.

In Chapter 11, Izuogu, Kingsley and Nwachukwu, Chidiebere. study how ever since philosophers developed and devoted themselves to the study of why human beings behave the way they do, as well as the results of such behaviours the concept of ethics has continued to grow not only in prominence, but in complexity and controversy. Being a public-spherical profession in which respect for truth, fairness, sense of duty and consideration of possible consequences combine to determine the course of a given action, journalism will continue to remain at the centre of such complex and controvertible discourse for a long time. This paper sets out therefore to put into proper perspective the ethical dilemmas that hamstring the practice of journalism in Nigeria, vis-à-vis the major reasons that orchestrate journalist’ vulnerability to such dilemmas. It then suggests ways of resolving the various ethical dilemmas; arguing that what Nigerian journalists need in all ethical situastion is application to the ‘SAD" formula.

In Chapter 12, Ojo, Joshua submits his finding that Nigeria will be on the threshold of history by the time library and information service profession join the rest of the world and participate in global information brokerage. It will be as a result of new government policy that is encouraging entrepreneurship. This paper exemplifies the rational and genesis for information consultancy; information brokerage; independent information profession (IIP) etc, as a profession in Nigeria. It may not be an easy task since Nigeria has not been known in such field. The paper takes cursory look at the possibility and viability as it is has already being practiced in some developing and developed countries He concluded that this is a good entrepreneurship to be embarked upon.

In Chapter 13, Adediji, Banji Oyeniran carries out an analysis of how the government has directly or indirectly contributed to the present level of corruption in Nigeria’s civil service through its politicization. The paper recommends that Government should discontinue this practice of appointing and promoting the professionally bankrupt persons to avoid further pollution of the institution.

In Chapter 14, Azunwena, Regina examines why, implementation programmes in Nigeria fail. The paper reveals that implementation of poverty alleviation programmes in Nigeria fail because of, amongst others, lack of continuity.

In Chapter 15, Nwoka, Jude addresses the issue of inefficiency as managers in public enterprises retain their job purely on political patronage, while efficiency, dedication to duty and accountability are no longer the watchword.

In Chapter 16, Adewale, Ademola analyses how in Nigeria consultation and popularization which are prerequisite of development planning are rarely practiced. In addition to the above, lack of data, skilled labour, personnel, and insufficiency of funds, coupled with corruption and inadequate technical staff etc have led to a situation in which development plans are either badly executed or out-rightly abandoned. Consequently little or no improvements have been experienced by the masses. The paper recommended henceforth modern approach to planning: planning with the people.

In Chapter 17, Fagbohun, Francis studies the position of Local Government in Nigeria’s inter-governmental fiscal relations and reveals the fact that inspite of endless numbers of reforms and restructuring aimed at enabling the institution to have sufficient fund to meet the ever-increasing demand of the people, only 20% of statutory allocation is paid to Local Government presently. The fact that the institution shows lukewarm attitude towards internally generated revenue, the ever present financial mismanagement has finally turned Local Governments into beggers and paupers who have to go cap in hand to lubby the higher levels of good for financial donations. The paper recommends urgent review of fiscal relation that will enable the institution to live up to expectation of the people.

In Chapter 18, Aluko, Olukemi And Aluko, Folorunso examine the practice of Public Administration in Nigeria and observe that so long as the features of government are getting internationalised the new democratic framework and liberation process consequent upon globalization have changed. The traditional orientation and focus of Public Administration in Nigeria and expectedly greater performance in term of efficiency, effectiveness, adherence to rule, ethnical conduct, probity and accountability will result, so long as democratic process endures.

In Chapter 19, Oyewo, Ajagbe examines the virtues of the present system of Television Mediation mechanism, perceives the system to have evolved from the old practice of referring disputes to family heads or elders for decision. He recommends elementary legal training and seminars for such elders, proper record keeping, laid down guidelines in form of handbook to guide the panelist and the public.

In Chapter 20, Mngomezulu, Bheki studies the centrifugal tendencies in Nigeria’s public administration, presents theoretical assumptions about public administration as a field of study, addresses different meanings thereof, discusses how public administration operates in the Nigerian context, and enumerates factors which weaken it. Lastly, the paper suggests possible solutions to the problems discussed.

In Chapter 21, Adediji, Banji Oyeniran traces the generalized disrespect of our political public office holders for Accountability in Nigeria to the old culture of treating the Traditional Rulers of the past whom they now replace as unquestionable in the acts or omissions, the expensive nature of elective posts and the fact that elections are won through rigging or bribing of voters, and the superiority complex.

In Chapter 22, Akenbor, Cletus studies The Social Costs of University Closures in Nigeria and came out with the fact that it is not more cost-effective to close down a university than to meet the demands of aggrieved parties. He recommends that the Governments and University authorities should design measures to achieve smooth functioning of the institution.

In Chapter 23, Adediji, Banji Oyeniran identifies the parasitic culture which makes the members of the family of a Local Government Officer to depend on him for feeding, lodging and clothing, and the fact that the Local Government officer is invariably obliged to meet such needs. When the financial capacity of a Local Government officer is not sufficient to meet the demand of his family, he is sometimes pushed into all sorts of sharp practices, including bending and breaking of service rules and regulations. Family interest also affects the conduct of an average Local Government Officer at the time of distribution of socio economic advantages. The same thing happens at the time of enforcing internal discipline and enforcement of bye laws, as the Local Government Officer finds it difficult not to give preference to his uncles, brother in-laws etc. At the end of the day Local Government laws, regulations etc. remain only on paper and rarely enforced as the family system has become obstacle to their enforcement.

In Chapter 24, Adediji, Banji Oyeniran sheds light on how the Laisser Faire attitude of the governed masses, due to their hesitant attitude in question of belling the cat and the practice of having no clean hands themselves as they indulge in the act of demanding from the public office holders one financial favour or the other, even beyond the means of the latter, has encouraged the public office holders to seize every opportunity at his disposal, to cut corners and make imaginable and unimaginable efforts to a mass wealth for himself, his nuclear and extended family, his friends, his political associates, and his other social groups of belonging.

In Chapter 25, Oyewo, Ajagbe studies how good governance has not yet been allowed to grow in Nigeria as a result of corruption bad leadership, selfishness, favourism and abuse of powers. He recommends necessary legal reforms and the promulgation of strictly enforceable laws in order to resolve the issue of bad governance.

In Chapter 26, Badejo, Bolaji Tinuke studies the status of women in todays political and administrative spheres and identifies several factors, including socio-political, economic and cultural ones which have jointly and severally encouraged gender discrimination and gender inequalities. The paper recommends several ways in which the status of women in administration could once more improve.

In Chapter 27, Olayode, Kehinde Sheds light on current efforts towards gender balance in administrative and political allocation of powers, positions and benefits, submitting that much still needs to be done to improve the situation. The paper recommends that Government at all levels should integrate further gender-related policy, in other areas not yet covered.

In Chapter 28, Oladejo, Mutiat sheds light on how the market women in Ibadan were able to influence politics and governance decisions in Ibadan between 1960 and 1980 through the formation of pressure groups along with other non-state actions, despite the challenges they faced. The paper recommends this sort of participatory Democracy as a way out of Nigeria’s developmental dilemma.

In Chapter 29, Idowu, Amos studies the impact of inter personal wrangling and conflicts sometimes degenerating into physical combats on the floor of the house among Nigerian legislators or between them and the executives and comes out with the findings that such conflicts prevent them from adequately using their exalted positions to achieve meaningful results for the set objective.

In Chapter 30, Agbionu, Edwin. And Agbionu, Clementina investigate why food security could not be attained in Nigeria, and observe that this is due to the fact that agriculture was recklessly abandoned in the past, thus leaving mainly private interest to the task. The several programmes including agricultural research and extension services embarked upon by the government to improve the situation could not produce meaningful results.

In Chapter 31, Obasoro, Carolina studies the immense contributions which women’s participation in politics could bring to Nigeria’s sustainable development, but which are not presently encouraged by their seclusion therefrom. The paper recommends that training and mobilization of woman, their encouragement by male folks to get involved in decision making at all levels of public domain would henceforth be the right step in the right direction.

In Chapter 32, Uwagie-Ero, Anthony And Iboaya, Benson examine the extent to which oil exploration have contributed to environmental degradation in the mining areas on Nigeria. The paper recommends that oil mining companies responsible for such environmental degradation be sanctioned by the government so as to put a check on such acts.

In chapter 33, Akinyemi, Omolara focuses attention on transborder crimes (especially human trafficking, smuggling of dangerous weapons and drugs, in addition to terrorism) which presently spread liked wide fire. The paper traces the present inability of the state to cope with the challenges to the enormous traditional assumption of the sufficiency of the military powers to combat such crimes and ensure state security, without realizing the fact that times have changed as a result of globalization and that new security threats have joined the old ones to the extent that the state can no longer do it alone unaided the paper recommends the development of the people especially provision of employment opportunities, provision of basic infrastructure, in order to accommodate the concept of human development which is in vogue internationally at present.

In Chapter 34, Erhun, Mercy undertakes a research based on empirical studies of Community Development in Ogun State of Nigeria, reveals that Local Governments get in contact with communities, pointing out to them the importance of formation and registration of Community Development Associations, holding meetings constantly with them to get familiar with their plans and intentions and assisting them to evaluate their intended projects, also encouraging Annual Day festivals through generous donations. The paper recommends that Local Governments should include intensified training schemes for community leaders.

In Chapter 35, Omisore, K. employs philosophical reflections to provide insights into the nature of existence necessary to stimulate the minds of Nigerians with constructive ideas that would encourage actions capable of bringing over all development to the country. He recommends.

CHAPTER ONE

IMPACT OF NIGERIA’S CUSTOMARY LAW ON NIGERIA’S ADMINISTRATION OF JUSTICE

ADEDIJI, BANJI OYENIRAN (PH.D)

INTRODUCTION

In Nigeria, customary law has become an important part of Administration of Justice and therefore it has important impact on several aspects of the life of Nigerians. Though it is not a law enacted by any competent legislature in Nigeria, yet it is one that is enforceable and binding in Nigeria between the parties subject to it. It is the eldest source of Nigerian law, as it is known to have existed in the Nigerian communities prior to the coming of Europeans to colonize the country. Although there is no uniformity of customary law applying in all the parts of Nigeria, its acceptability is itself uniform. Customary courts are established all over Nigeria to administer customary cases. According to Oyewo, Customary courts are created all over Nigeria with different names. For instance, customary courts like Islamic laws have assumed different names in Bauchi, Kaduna, Sokoto, Benue, Gongola, Plateau, Borno, Kano, Niger and Kwara States where we do have Areas courts of grade 1, II and III with upper area courts and Sharia courts of appeal to deal with Islamic laws, while in Lagos and Anambra States there is no change of name hence such courts bear the name Customary Court Simpliciter

It is important to note that words generally do not have uniform meaning as the context in which they are used affect the meanings. It is for this reason that the paper would now do the clarification of this concept.

DEFINITION OF CUSTOMARY LAW

Customary law has been defined in various ways by different writers;

Prof. Taslim Olawale Elias CJN defined customary law as:

A body of customs accepted by members of a community as binding upon them

According to Prof. Akintunde Olusegun Obilade:

Customary law consists of customs accepted by members of a community as bining among them"

In the words of Niki Tobi JSC, Customary law is:

The customs, rules and traditions which govern the relationship of members of a community

Prof. A. D. Badaiki defining it said:

Customary law is law which is generated by custom. The customary law of a community is a body of customs and traditions that regulate… various, kinds of relationships between members of a community

This apart, section 2(1) of the Evidence act defines custom thus:

Custom is a rule which in a particular district has, from long usage, obtained the force of law

The term customary law has also come up for definition in court in various cases. In Owoniyi v Omotosho, Bairamian FJ, in the Supreme Court defined customary law as:

A mirror of accepted usage, among a given people

In Oyewunmi v Ogunsan, Obaseki, JSC (1961) 1 All NLR 304 defined it said:

Customary law is the organic or living law of the indigenous people of Nigeria, regulating their lives and transactions

Continuing, his lordship said:

It is organic in that it is not static, is regulatory in that it controls the lives and transactions of the community subject to it. It is said that custom is the mirror of the culture of the people. I would say that customary law goes further to import justice to the lives of those subject to it

And in Aku v Aneku, Ndoma-Egba JCA in the court of Appeal defined it as:

The unrecorded tradition and history of the people, practiced from the dim past and which has grown with the growth of the people to stability and eventually becomes an intrinsic part of their culture. It is a usage or practice of the people which by common adoption and acquiescence and by long unvarying habit has become compulsory and has acquired the force of law with respect to the place or the subject matter to which it relates

CHARACTERISTICS OR THE ATTRIBUTES OF CUSTOMARY LAW

(a) It is flexible

(b) It is generally un-written

(c) It changes from time to time and place to place at 0. 100-101. Customary law is easily adaptable to changing circumstances; see (Lewis v Bankole (1961) 1 NLR 81 where Osbonic C.J said as follows.

One of the most striking features of West African Native Custom is its flexibility, it appears to have been always subject to motives of expediency, and it shows unquestionable adaptability to alter circumstances without entirely losing its individualistic character.

This same view was expressed in the case of Kimdey and Others v Military Governor of Gongola State and Others, where Kabiri Whyte (J.SC rtd) (1988) 2 NWLR (pt 77) 445 at 461 had these to say "one of the characteristics of native law and which provides for this resilience is its flexibility and capability for adaptation. It modifies itself to accord with changing social conditions. This also has the support in Alfa and others v Arepo (1963) WNLR 95 where he said as follows:

"Customary law is not, however a static law . . . . the law can and does change with the times and the rapid development of social and economic condition."

(d) It is a mirror of accepted usage

(e) It is an accumulated knowledge of ancient time.

(f) It is the custom of today, that is, it must be existing and prevailing at the material (relevant) time, not custom of ancient time.

(g) It must not be repugnant to law, equity, good conscience.

(h) It must have recognition and be accepted by the community (Eshugbayi Eleko v. Government of Nigeria) Customary Law is applied within the area of its acceptability. However, it varies from one particular community to another and from one ethnic group to the other.

(i) It must be particular to a particular locality.

(j) It must not be incompatible directly or indirectly with time being or with law of today

VARIETIES OF CUSTOMARY LAWS

Customary law comprises of ethnic customary law as applicable in Southern Nigeria like Yoruba, Edo, Ibo Land as well as Islamic or Shariah law which for now is applicable only in the Northern part of Nigeria where the inhabitants are predominantly Muslim. Hitherto, Islamic law was regarded as part of customary law. For example, section 2 of the Kastina State High Court Law 1991 provides that customary law included Islamic law. However with the promulgation of the various Sharia Penal Code Law, in some states in the Northern part of Nigeria, Sharia or Islamic Law can no longer be regarded as part of customary law. For example, section 29(3) of the Kano State Sharia Penal Code law 2000 provides thus:

Islamic and Muslim law shall be deemed to be statutory laws in all existing laws in the state.

Section 29(4) of the Kano State Sharia Penal Code Law 2000 further provides thus:

The provision of existing laws in the state which define customary law to include Islamic or Muslim law are hereby accordingly amended and such provisions shall be deemed statutory laws wherever they occur.

It could therefore be said that to the extent that the various Sharia Penal Code Laws now regard Sharia or Islamic law as statutory laws, they cannot now be regarded as part of customary law as previously defined.

Omnipresence of Customary Law: Customary law has preponderant effects on administration of justice in Nigeria, as it has entered into almost all aspects of Nigeria’s system of administration of justice.

(1) Intestacy Life: distribution of belonging of a deceased person.

(a) Islamic way of sharing: wives and children are given the same thing.

(b) Other customary ways of sharing: Yoruba custom of sharing are:

(i) Idi-igi way—(pre stripes doctrine)

(ii) Oriojori way. The property is shared according to the number of children only, i.e all the children should have equal portion which means that a woman without a child would be given nothing.

How the property of a deceased Polygamist is distributed under Idi-igi system

• Property is divided among the children per stripes i.e property being divided first equally among the number of wives, the share attributable to each wife being then divided equally among her own children.

Difference between Ori-ojori system and Idi igi system in Customary Law of inheritance

• The difference is that under Ori-ojori system the properties of a dead parent are shared equally among the children while under Idi-igi system such properties are shared equally among his wives.

(c) Benin Customary Law of Inheritance

The eldest surviving son of his father (the deceased) is entitled to inherit the house in which the deceased lived and died otherwise known as Igiogbe. The house cannot be willed or transferred to any other (beneficiary) person, and any such will, devise or transfer is null and void. That is when the will is contrary to Bini Native Law and custom it is null and void. This means that neither testamentary disposition nor family arrangement can deprive the eldest surviving son of Igiogbe as decided in Edward Uwaifo v. Stanley Uwaifo SC 135/2004, 2013 (4) LEDLR-16

(Bini Customary Law of Succession S 3(1) Will Law Cap 172)

In Idehen v. Idehen (1991) 6NWLR (pt 198) 382 the custom of the Bini people prevented a testator from devising his Igiogbe to any other person other than his eldest surviving son. It was held that at his death, the Igiogbe was no longer his to give away. Note however that the vacant land does not constitute Igiogbe.

(d) In Ibo Traditional Customary Law: Intestates heir is his next-of-kin called Okpala. Once the head of the family dies Okpala inherits all without any formality. But if the wife of deceased has a house, it is the last born that will inherit it after her death. Although it has not assumed a general pattern in Eastern Nigeria, under Ibo traditional customary law, a wife has no right of succession to her husband’s property whether actual or implied. A qualification to the general statement that a daughter can’t succeed a landed property is not in every case among the Ibos in Delta State. If a man dies without a male child, the eldest daughter can claim the Ide-gbe. An ‘ide-gbe" is a lady who remains unmarried and raises children in her father’s name.

The Ide-gbe continues if no male child comes up.

N.B: In Ibo customary law a will is known as—"Ike Ekpe".

(2) Security: In question of Security of life, vigilanté system is recognized by law, thus in almost every community in Nigeria vigilanté system is recognised and adopted. Thus it is justice if a person is arrested and dealt with in customary manner.

(3) Marriage: Customary law recognizes customary marriage and such a marriage is recognized by law of Nigeria. A woman whose husband adopts polygamous system of marriage does not consider it as injustice.

The position of the first wife as mama of the family goes generally unchallengeable.

(4) Land: Land according to law belongs to family and not individual members of that family, the right a member has is the right of usage, while alive, but he cannot alienate i.e transfer it or sell it to anybody.

The family head is the custodian of family property. The head of the family has or is vested with powers of management of the family property. Thus if he sells family land as family land without the concurrence of the principal members, the sale is voidable at the suit of the non-consenting members of the family. See the case of John Faluja v Daniel Amusa (1983) 10SC 1 at p.8 and Esan v FARO 12 WACA 135. But where family members sell family land without the consent of the head of the family or sell such land as their personal property the sale is void ab initio in toto. See the case of Olorunfemi v Ojo (1993) 8NWLR (pt 313) 542. However under the customary law, what is needed to grant or sell any piece of a family land is that it must be concluded in the presence of witnesses who saw the actual handing over of the property, otherwise the grant or sale will be defective. Only Family head, principal members can validly dispose family land. Note well that in customary law in Nigeria:

(a) Land belongs to the family or community and not to individuals.

(b) The head of the family is a custodian of the family land.

(c) Family land is for the use of individual members while alive, but individuals cannot sell or transfer such land.

(5) Chieftaincy affairs: Only persons born in royal families can vie for the appointment as a traditional ruler in their community. Only persons nominated by the royal families can be eventually given the staff of office.

(b) Will making

Customary Law recognizes a nuncupative or oral will.

A nuncupative or oral will is one made according to customary law and practice. A nuncupative will is a declaration made voluntarily and orally by a person in sound mind whether in expectation of death or not and in the presence of responsible witnesses, whether interested or not, to the effect that after his death, his landed property should go to certain nominated persons of his choice. It follows from the above therefore that for a nuncupative will to be valid, the following conditions must exist:

(i) It must be voluntarily made.

(ii) The testator must be in sound mind.

There must be nominated beneficiaries.

(iii) It must be made in the presence of witnesses.

(iv) It must be made orally. In Okon v Ana, the court made the following remark about a will made under customary law. The court stated:

‘‘Mention must be made of the customary way of will made by the late Odo Efana by inviting responsible Chiefs and entrusting her whole house and property into the hands of the defendant, it was held, "the court cannot as such reverse the course of her wishes now that she is dead’’.

CONCLUDING REMARKS

In Nigeria the customary law has and casts non-negligible impact on Administration of justice. In several aspects of life of Nigerians, customary law assists as part and parcel of Administration of justice, as supplementary aspect of Administration of justice. In the resolution of intestate issues, in solving the problem of community security, in solemnization of marriage, and in question of chieftaincy matters, customary law lends itself useful. The fact that it is generally accepted by the community as convenient and binding in the area of its acceptability makes it popular and respected. It is indeed currently indispensable aspect of Nigeria’s Administration, especially in the administration of justice. Customary courts promote reconciliation and encourage and facilitate the settlement in an amicable way. For example, the impact of this customary law is felt in matrimonial matters by section 11 (a) of the matrimonial causes Decree 1970 also which deals with reconciliation as follows: "it shall be the duty of the court in which a matrimonial cause has been instituted to give consideration, from time to time, to the possibility of reconciliation of parties of the marriage.

REFERENCES

Prof. Akintunde Olusegun Obilade

Prof. Akintunde Olu cited in Wale Akinola—The idea of Administration Law Unpublished paper.

Aku v Aneku, Ndoma-Egba JCA

Alfa and others v Arepo (1963) WNLR 95

Prof. Badaiki A.D. cited in Wale Akinola—The idea of Administration Law Unpublished paper.

Edward Uwaifo v. Stanley Uwaifo SC 135/2004, 2013 (4) LEDLR-16

Esan v FARO 12 WACA 135

Idehen v. Idehen (1991) 6NWLR (pt 198) 382

John Faluja v Daniel Amusa (1983) 10SC 1 at p.8

Kimdey and Others v Military Governor of Gongola State and Others, where Kabiri Whyte

(J.SC rtd) (1988) 2 NWLR (pt 77) 445 at 461

Lewis v Bankole (1961) 1 NLR 81 at 0. 100-101.

Lewis v Bankole where Osbonic C.J

Olorunfemi v Ojo (1993) 8NWLR (pt 313) 542.

Owoniyi v Omotosho, Bairamian FJ,

Oyewunmi v Ogunsan, Obaseki, JSC (1961) 1 All NLR 304

CHAPTER TWO

IMPACT OF ADMINISTRATIVE LAW ON NIGERIA’S PUBLIC ADMINISTRATION

ADEDIJI, BANJI OYENIRAN (PH.D)

INTRODUCTION

In Nigeria, one of the most significant aspects of Public Administration is the tremendous impact which Administrative Law exerts on it. As a matter of fact virtually every aspect of Nigeria’s Public Administration experiences some impact of Administrative law. It could even be said without fear of contradiction that it is inconceivable to mention any area of Public Administration which Administrative Law does not govern in one way or the other. The objective of the paper is to bring to lime light those areas of Public Administration in which Administrative Law casts its spell.

WHAT IS ADMINISTRATIVE LAW?

We now have to consider the views and note the comments of some of the leading writers in the field.

According to Sir Ivor Jennings: The Law and the Constitution (5th Ed.) p. 217:

Administrative Law is law relating to the administration. It determines the organization, powers and duties of administrative authority.

In the opinion of E.C.S Wade and Bradley: Constitutional Law (10th Ed. 1985) p. 593:

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. Or, more concisely, the law relating to Public Administration.

H.W.R Wade: Administrative Law (5th Ed. 1982), p.4:

"Sees Administrative law as the law relating to the control of governmental power. This, at any rate, is the heart of the subject. The governmental power in question refers to the powers of all public authorities are that subordinated to the law. Such powers are subject to legal limitations, as there is no such thing as absolute or unfettered administrative power.

According the primary purpose of administrative law, therefore, is to keep the powers of government within their legal bounds, so as to protect the citizens against their abuse. The powerful engines of authority must be prevented from running amok… . It is also the concern of administrative law to see that public authorities can be compelled to perform their duties if they fail to do the duties. The view of this author seems to be that administrative law is the body of general principles which govern the exercise of powers and duties by public authorities.

K.C. Davis: Administrative Law Treatise Vol. 1, p. 1: say:

Administrative law is the law concerning the powers and procedures of administrative agencies, that is organs of government, other than a court and other than a legislature, which affect the rights of parties through either adjudication or rule making.

But according to D. Foulkes: Introduction to Administrative Law (4th Ed.) 1976, p. 1:

Administrative law is the law relating to public administration. It is concerned, from the legal point of view, with the forms and constitutional position of public authorities; with their legal relationship with one another, with the public and with their legal relationships with one another, with the public and with their employees.

While according to D.C.M. Yeardley: Principle of administrative Law (1981), p.14:

The kernel of the whole subject of administrative law is this control of power within its lawful compass.

Lastly in the opinion of B. Schwartz: Administrative Law; A casebook (2nd Ed. 1983), p.3:

Administrative law may be defined as the branch of the law that controls the administrative operations of government. It sets forth the powers that 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.

Looked at critically there are two angles through which one can perceive Administrative law:

a) Administrative Law as the law relating to the control of government power. The main object is to protect the individual.

b) Administrative Law as the law which lays emphasis on rules, which are designed to ensure that the administration effectively performs the task assigned to it.

Administrative Law and the areas of its Impact on Public Administration

Administrative Law concerns several concepts which reflect and exercise binding force on the acts or omissions of officers of Public Administration.

Such concepts include:

i. The Rule of law

ii. Separation of powers

iii. The principle of natural Justice

iv. Supremacy of the constitution etc. to mention only some of such concepts.

Supremacy of the Constitution

Section/ of The 1999 constitution of the Federal Government of Nigeria (as amended) Provides S.I (1) This constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria."

S.I (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 its inconsistency be void.

The case of Dorothy v. Balewa is instructive. In that case the Prime Minister under a law commissions and tribunals of Inquiry Act of 1961 set up a tribunal to look into the affairs of the National Bank of Nigeria and some other persons connected thereto including the plaintiff. The plaintiff challenged the action in court contending that the law under which the Prime Minister exercised his power was constitutional. The court held inter alia that section 3 (1) of the Commission and tribunal of enquiry act which states: neither the commission nor the exercise of the power of the prime minister shall be entertained in any court is inconsistent with the constitution and therefore null and void.

So also in Attorney General Bendel State and Others V. Attorney General of Federation (1982) 3 NCLR page 1 (Revenue Allocation case) that Supreme Court held that the Revenue Allocation Act of 1981 was null and void since section 58 of the Constitution was not complied with before the passing of the act. The position in Nigerian is therefore that under a civilian regime any law made by the legislature which gives power to the administrative agent must be consistent with the provisions of the Constitution, since the constitution is the basic law of the land.

Violation of the Principle of Natural Justice

Although the phrase ‘natural justice’ has been described as sadly lacking in precise definition, and is said to mean different similar things in slightly different circumstances, two concepts today epitomise the expression. According to decision in Russel V. Duke of Norfolk (1969) 1 All ER.R. 109 at 118 (per Tucker L.J., it was stated: the requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules upon which the tribunal is acting, the subject matter to be dealt with and so forth. It is however indisputable that the principle of natural justice implies the need for justice: that those who are called upon to exercise administrative or judicial powers are mandatorily expected to respect and obey the Principles of natural Justice. Failure to obey the rules of natural justice is a ground for holding an action ultra vires. This is because the law stands solidly behind any person who is legitimately apprehensive that his right to natural justice is denied or might be denied him. The doctrine of natural justice is universally recognised as having two key pillars audi alteram partem and Nemo judex in causa sua.

(a) Audio alteram partem (the rule of fair hearing): this literarily means listen to the other side. It is a principle whereby nobody shall be condemned unheard. In other words, before a party to a matter is declared guilty or innocent, his own side of the case must be heard and considered. It is based on the principle that: . . . even God himself did not pass sentence upon Adam, before he was called upon to make his defence.

According to 1999 Constitution (Supra), Sec 33(1):

In the determination of his civil rights and obligations, including any question of determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.

Similarly, Ademola CJF said in Kano Native Authority V. Raphael Obiora (1959: 4 FSC 226 at 230.) that « natural justice requires that the accused person must be given the opportunity to put forward the defence fully and freely and to ask the court to hear any witness whose ence might help him

In Enoc Faladi & others V. Commissioner for Local Government & Chieftaincy Affairs unreported AK/70/84, the Plaintiff succeeded in an action against the defendant who despite receiving a petition for enquiry into Sao Chieftaincy matters went ahead to approve the candidature of the person against whom the petition was written without setting up the enquiry because the court found the action of plaintiff irregular and therefore null and void, being a violation of audi alteram partem.

It is the duty of the court to ask the accused person if he has witnesses he wishes to call in support of his defence and it is desirable that the relevant question and answer should be recorded,(45: per Foster Sutton CJ in Danjuma Dan Buhari Rimin Auzjnawa V. Kano Native Authority, 1956, 1 FSC 27), but it cannot be said that an opportunity to call a witness is denied to an accused person only because he has not been specifically told that he has a right to call witnesses or been asked if he wishes to call witnesses.(46: 1959 4 FSC 226 at 230)

In Ibrahim Mai Akinkumi V. Kaimu (1962 NNLR 26) a case part-heard in one native court was transferred to another. The other court, besides hearing witnesses, read the record of evidence of a witness who had testified before