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DEFINITION & NATURE OF ADMINISTRATIVE RULE MAKING

Administrative Rule-making is the process by which governmental agencies create,

modify, or repeal regulations under the authority granted to them by legislation. These
regulations have the force of law and are designed to implement and enforce statutory
provisions.

It refers to the procedures that administrative agencies use to develop and issue rules and
regulations. It includes drafting proposed rules, soliciting public input through a
notice-and-comment period, and finalizing the rules, which have legal binding power.

Administrative rule-making is a structured process involving the creation, amendment, or

repeal of administrative regulations by government agencies. This process typically
includes publishing proposed rules, receiving and considering public comments, and
issuing final rules to guide the application and enforcement of laws.

In addition, it is a mechanism through which government agencies develop detailed

guidelines and standards necessary to enforce and administer laws passed by legislative
bodies. It ensures that policies are implemented consistently and transparently across
different sectors.

The development of government and its administration has evolved the phenomenon of
administrative rule-making whereby the sources of executive/administrative powers are
traceable beyond statute books, legislation, or judicial decisions into administrative
legislation, subsidiary legislation or subordinate legislation that are all termed delegated
legislation.

DELEGATED LEGISLATION

Delegated legislation, also known as secondary or subordinate legislation, refers to laws or

regulations enacted by an individual or body other than the primary legislative authority,

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but with its permission. This legislative process involves a legislature passing an enabling
act that grants authority to another entity, such as a government minister, agency, or local
authority, to create detailed laws or regulations within the parameters set by the enabling
act.

Nature and Legal Framework

Delegated legislation, often referred to as subsidiary legislation, subordinate legislation,

statutory instruments, or administrative legislation, arises from the exercise of
rule-making powers by the executive or administrative body, which are conferred upon
them by the legislative arm of government. These terms are often used interchangeably in
legislative texts, legal commentaries, and academic literature, signifying the extension of
legislative functions to the executive in specific and controlled circumstances.

Delegated legislation is essentially a product of delegation; the legislature, through an

enabling statute, grants the executive the power to create rules, regulations, or orders
necessary to implement the provisions of the primary law. For this reason, delegated
legislation must always derive its authority from a valid legislative enactment, often
referred to as the enabling law. In the absence of such an empowering statute, any attempt
by the executive or administrative body to make rules would be declared null and void, as it
would be considered ultra vires (beyond its powers). This is a fundamental principle in
administrative law.

For example, in the case of Buhari v. Obasanjo, the court held that by virtue of section 149 of
the Electoral Act, 2002, the Independent National Electoral Commission (INEC) was
empowered to issue regulations, guidelines, or manuals to give effect to the provisions of
the Act. This decision demonstrates the principle that the delegated authority (in this case,
INEC) must act within the bounds of the powers conferred upon it by the enabling statute.

However, delegated legislation is not limitless. It must stay within the scope of the
authority granted by the enabling law. If the delegated legislation exceeds the powers

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conferred by the enabling statute, it will be declared void as ultra vires. This was the
finding in A-G, Lagos State v. Eko Hotels Ltd, where the Supreme Court ruled that the Lagos
State Government lacked the power to make laws affecting the regulation of companies
incorporated under the Companies and Allied Matters Act (CAMA). The court based its
decision on the fact that the regulation of such companies falls within the Exclusive
Legislative List under item 32 of the Second Schedule of the 1999 Constitution of Nigeria,
meaning that only the National Assembly, and not state governments, can legislate on
matters involving incorporated companies.

A key principle in administrative law is that once a power has been delegated, the decision
of the delegate (i.e., the administrative body exercising the delegated power) binds the
delegating authority, which is usually the legislature. This principle underscores the
finality of the decisions made under delegated authority, as the delegating body cannot
ordinarily rescind the decisions of the delegate. However, it is also established that
delegated legislation can only have binding effect to the extent that it is consistent with the
enabling law. The delegated rules cannot extend beyond the scope or objectives of the
primary statute, and if the enabling statute is repealed or amended, any delegated
legislation made under its authority ceases to have effect, except where specific rights have
already accrued prior to the repeal.

This legal framework ensures a balance between the flexibility needed in modern
governance (where specialized administrative bodies may need to fill in the details of
complex legislation) and the need to maintain legislative supremacy and the rule of law.
Delegated legislation is, therefore, an indispensable feature of governance, allowing the
legislature to delegate detailed rule-making to the executive while retaining the
overarching control through the enabling statute. Nevertheless, its validity remains
tethered to the authority granted by the enabling law, and any exercise of delegated powers
beyond this authority will be struck down by the courts, as demonstrated by the
aforementioned cases.

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Thus, while delegated legislation plays a crucial role in implementing laws and making
governance more efficient, it must remain within the boundaries of the authority granted
by the legislature, as affirmed by judicial oversight.

Types of Delegated Legislation

Delegated legislation, often referred to as subordinate or subsidiary legislation, plays a

crucial role in Nigeria’s legal framework. Section 37(1) of the Interpretation Act defines
"subsidiary instruments" as including any "order, rules, regulations, rules of court or
bye-laws" made either before or after the commencement of the Act, under powers
conferred by an Act. This provision reflects the core structure of delegated legislation in
Nigeria, which takes various forms depending on the nature of the powers delegated by the
legislature to other bodies or authorities.

Regulations

Regulations constitute one of the most common forms of delegated legislation in Nigeria.
They are typically used to address matters of broad general importance that require rules of
general application. The Constitution of the Federal Republic of Nigeria, 1999 (as amended), as
well as various Acts of the National Assembly, delegate powers to the President, ministers,
and other authorities to make regulations on specific matters.

For instance, Section 32(1) of the 1999 Constitution grants the President the power to make
regulations concerning matters necessary for the enforcement of Chapter II of the
Constitution, which pertains to citizenship. Although regulations can be enacted by various
authorities, they are most commonly issued by the executive branch, with the National
Assembly delegating substantial regulatory powers to ministers.

Rules

Rules, another significant form of subsidiary legislation, are generally prescribed to govern
specific procedures. For example, Section 46(3) of the 1999 Constitution empowers the Chief

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Justice of Nigeria to make rules concerning the enforcement of fundamental rights.

Similarly, rules made under the High Court Laws of various states regulate court
proceedings.

A key example is the Fundamental Rights (Enforcement Procedure) Rules, 2009, made pursuant
to Section 46(3) of the Constitution, which replaced the earlier 1979 Rules. The 1999
Constitution further provides that the heads of various courts have the power to make rules
regulating the practice and procedure in those courts.

Orders

Orders are another category of subsidiary legislation, typically employed to bring into
effect specific or general provisions of the law. Orders may relate to judicial or
quasi-judicial functions, or be used to modify existing laws to align them with the
provisions of the Constitution.

An example of the use of an order is the power conferred on appropriate authorities to

make modifications to existing laws under the Constitution. Orders are also common in
court rules, such as in the High Court (Civil Procedure) Rules, where specific orders may
regulate various aspects of court proceedings.

Statutory Instruments

Statutory instruments (S.I.) are a broad category of delegated legislation that encompass
orders, regulations, rules, and other forms of formal legal pronouncements. These
instruments derive their authority from an enabling statute and are published with serial
numbers for formal recognition.

Statutory instruments may take various forms, such as codes of practice or guidance, and
carry the force of law once they are published in accordance with the relevant statute. For
example, S.I. No. 1 of 2011 was published as a statutory instrument that impacted specific

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aspects of the law. These instruments are legally binding and may include sanctions for
violations.

Informal Administrative Directives, Circulars, and Guidelines

Though less formal than other types of delegated legislation, administrative directives,
circulars, and guidelines also carry significant legal weight. These are typically issued by
public authorities to ensure uniformity in the exercise of discretionary powers by officials.
Although they may not always derive from specific statutory provisions, courts have
recognized their administrative and normative legal force in some instances.

For example, under Section 34(b) of the Export Free Zone Act, licensees are required to
comply with administrative directives and circulars issued by the relevant authority. These
instruments guide administrative practices but can also indirectly influence the
interpretation and application of the law.

Bye-laws

Bye-laws are a form of delegated legislation usually made by local government councils or
statutory corporations. These laws govern specific areas of public life and are often
accompanied by penalties for non-compliance. Bye-laws are authorized by statute, as seen
in the case of the Nigeria Railways, which was empowered to make bye-laws governing its
operations.

The 1999 Constitution (as amended) elevated local governments to the status of a third tier
of government in Nigeria. Consequently, local government councils have the power to
enact bye-laws, giving them the same legal force as state laws within their jurisdiction.
Section 7(1)(5) and the Fourth Schedule of the Constitution grant local governments this
authority, reinforcing their role in Nigeria's federal structure.

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Subsidiary legislation, while necessary for the effective administration of laws, is not
immune to legal challenges. Such legislation must be made within the substantive scope of
the enabling statute and in accordance with prescribed procedures. Where these conditions
are not met, courts may invalidate subsidiary legislation on grounds of substantive ultra
vires (acting beyond the scope of the delegated powers) or procedural ultra vires (failure to
follow required procedures).

Section 1(3) of the 1999 Constitution underscores that any law inconsistent with the
Constitution is void to the extent of its inconsistency. This principle applies to subsidiary
legislation, which must align with the enabling statute. Courts play a vital role in ensuring
that delegated legislation remains within the confines of the law, protecting citizens from
arbitrary or unlawful regulations.

Problems of Delegation and Sub - Delegation

Appropriate Authority

The principle of "appropriate authority" and the delegation of powers is central to

administrative law and constitutional law, particularly in the context of public officers and
executive actions. This principle finds expression in the Latin maxim delegatus non potest
delegare (a delegate cannot further delegate), which restricts the sub-delegation of powers
unless explicitly authorized by law. This doctrine ensures that powers conferred on a
specific authority by law or statute cannot be further delegated unless the enabling law
expressly allows for such sub-delegation.

The general rule is that an authority vested with a power or discretion by statute or the
constitution must exercise it personally, unless there is an express or implied
authorization to delegate the power to another person or authority. This concept is
encapsulated in the maxim delegatus non potest delegare, which means that a delegate
cannot further delegate his powers unless expressly permitted by law. If the authority

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purports to delegate powers that it does not have the legal authority to delegate, any
actions taken by the sub-delegate are void.

In the case of Emuze v. Vice Chancellor, University of Benin, the Head of State purported to act
as the Visitor of the University of Benin and terminated the plaintiff's employment. The
Supreme Court of Nigeria held that the Head of State acted without proper legal authority.
Although the Head of State was empowered to terminate public officers under Decree No. 17
of 1984 (Public Officers (Special Provisions) Decree), he did not act in his capacity as the
Head of State but as the Visitor of the University, which was not authorized by the Decree.
Thus, the termination was invalid because the Head of State was not the "appropriate
authority" under the Decree to make such a decision.

The term "appropriate authority" was exhaustively examined in Shitta-Bey v. Attorney

General of the Federation. Section 4(2) of Decree No. 17 of 1984 defined the "appropriate
authority" as follows:

1. For offices held under a state government, the "appropriate authority" is the
Military Governor of the state or a person authorized by him.
2. For offices held under the federal government, the "appropriate authority" is
the Head of the Federal Military Government or any person authorized by him,
or the Supreme Military Council.

In this case, the Supreme Court held that the power to retire the appellant, a director in the
Federal Ministry of Justice, lay with the Head of State as the "appropriate authority." Any
other person purporting to retire the appellant without the explicit delegation of power by
the Head of State would be acting unlawfully.

The courts have consistently held that acts performed by persons who are not the
"appropriate authority" are null and void. In Wilson v. Attorney General of Bendel State, the
Civil Service Commission purported to dismiss a public officer. The court ruled that the
commission was not the "appropriate authority" under the relevant statutes and thus

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lacked the authority to dismiss the officer. The dismissal was declared null and void
because the action was not carried out by the Military Governor or a person authorized by
him, as required by the enabling statutes.

Similarly, in Garba v. Federal Civil Service Commission, the Federal Civil Service Commission
attempted to dismiss a public officer. The Supreme Court held that since the commission
was not the "appropriate authority" under Decree No. 17 of 1984, its actions were invalid.
The court reinforced the principle that powers conferred on a specific authority must be
exercised by that authority or by a properly authorized delegate, failing which any action
taken is void.

The fundamental issue with delegation lies in whether there is a statutory or constitutional
provision expressly allowing sub-delegation. If the enabling law (Constitution or statute)
lacks such a provision, the delegate cannot pass on their powers to another person or
entity. This is why in Okoro v. Delta Steel Co. Ltd, the court invalidated the decision of the
General Manager to dismiss an employee, holding that the General Manager was not the
"appropriate authority" under the Public Officers (Special Provisions) Decree No. 17 of 1984.

Discretionary Powers

Discretionary powers, as explained by Lord Diplock, refer to the authority given to officials
to choose between multiple courses of action, provided those choices are reasonable and
within the scope of the law. This discretion grants a certain level of freedom and autonomy
to the officials in making decisions, but it is not without constraints. Lord Denning
emphasized that discretion must be exercised in accordance with legal principles, ensuring
that relevant factors are considered, irrelevant factors are excluded, and no ulterior
motives are involved. He outlined four key principles for the proper exercise of discretion:

1. Good Faith: The decision-maker must act honestly and genuinely in the exercise of
their discretion.

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2. Relevance: Only relevant factors must be considered, and irrelevant ones must be
disregarded.
3. Reasonableness: The exercise of discretion must be reasonable, i.e., within the
bounds of logic and fairness.
4. Statutory Boundaries: Discretionary powers must be exercised within the statutory
limitations imposed by the law.

These principles reflect the rule of law and ensure that no authority, no matter how
powerful, can exercise "unfettered discretion," as such a concept is contrary to the legal
framework. This position was reinforced in Nigerian jurisprudence by Akpata, JCA, in Zango
v. Governor, Kano State.

The Nigerian Supreme Court case of Stitch v. The Attorney-General of the Federation dealt
with the exercise of discretionary powers by a Minister. The key issue was whether a court
could review the Minister's use of discretion, particularly when no reasons were provided
for the exercise of that power. The appellant in the case had imported a car and sought an
import license, but the issuance of licenses had been suspended by the Minister, and a new
customs duty rate was introduced, increasing the payable rate from 33 1/3% to 500%. The
appellant objected to the new rate, insisting on paying the old rate.

The Minister argued that his discretionary powers were unfettered and could not be
challenged, but the Supreme Court rejected this argument. Justice Aniagolu, delivering the
leading judgment, held that the exercise of discretionary power is subject to judicial review.
The Court concluded that the Minister's discretion could be challenged, especially if there
was a prima facie case of misuse of power. If the Minister failed to provide reasons for his
actions, or if the reasons were legally unsound, the court could infer that the discretion was
exercised unlawfully. This ruling established that even discretionary powers must be
exercised within the limits of the law, and courts can intervene if those powers are abused.

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Justice Aniagolu’s judgment emphasized that where a misuse of discretionary power is

alleged, the courts have the authority to infer bad faith or unlawful conduct if no justifiable
reasons are given. The Court thus rejected the argument that the Minister’s powers were
"unfettered" and beyond review.

In Iwuji v. Federal Commissioner for Establishments, Justice Karibi-Whyte discussed the

essence of discretion, highlighting that it involves making a choice between alternative
courses of action. However, the exercise of such discretion is not without limits. It is
implied that discretion must be exercised with regard to administrative justice. When an
official provides reasons for the exercise of their discretion, those reasons must be relevant
and lawful. If irrelevant factors influence the decision, the exercise of discretion becomes
invalid.

The Court in Iwuji reinforced the principle that the exercise of discretionary power must be
reasonable and take into account all relevant considerations. Discretion cannot be based on
irrelevant factors or be exercised in bad faith, and courts retain the power to review
whether discretion was properly exercised.

Sub - Delegation

The legal maxim delegatus non potest delegare is a principle deeply rooted in constitutional
and administrative law. Translated as "a delegate cannot delegate," it emphasizes that a
person or authority to whom a power or function has been entrusted cannot sub-delegate
that power or function unless expressly authorized to do so by law. This maxim plays a
significant role in ensuring that the delegation of powers is carefully regulated, preventing
the further delegation of powers without proper legal authorization.

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The maxim delegatus non potest delegare operates as a general rule in Nigerian
constitutional and administrative law. It provides that when powers or functions are
delegated to a person or authority, that individual or authority cannot further delegate
those powers or functions unless expressly authorized by the enabling law. This rule seeks
to maintain accountability and ensure that the person originally entrusted with the power
is responsible for its exercise.

This maxim is often invoked in constitutional and administrative cases to challenge the
validity of actions taken by individuals or bodies that have sub-delegated powers not
explicitly granted to them. For example, in Garba v. Federal Civil Service Commission (FCSC),
the Nigerian courts applied this principle to invalidate the sub-delegation of powers under
Decree No. 17 of 1984. Similarly, in Okoro v. Delta Steel Company Ltd and Okhae v. Governor,
Bendel State, the courts ruled that the sub-delegation of powers by an authority that did not
have express authorization to do so was invalid.

While the general rule of delegatus non potest delegare prohibits sub-delegation, there are
notable exceptions. One such exception is when the enabling law expressly provides for
sub-delegation. In such cases, the principle does not apply, and sub-delegation is
permitted. The legal maxim qui facit per alium facit per se ("he who acts through another
acts himself") becomes applicable in such situations. This principle was invoked in Nwosu
v. Imo State Environmental Sanitation Authority, where the Supreme Court upheld the
delegation of powers by a military governor to his subordinates. In this case, the court
found that Section 6(9) of the Constitution (Suspension and Modification) Decree No. 1 of 1984
provided the governor with the authority to perform his functions either directly or
through other persons or authorities subordinate to him. As a result, the delegation of
powers to subordinates was deemed valid.

The application of qui facit per alium facit per se is conditioned on the existence of clear and
express authorization for sub-delegation. In Federal University of Technology (FUT), Yola v.
ASUU, the Court of Appeal emphasized that there must be satisfactory evidence of a proper

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delegation of power before the actions taken by the delegate can be considered valid. In
that case, the court ruled that there was no evidence of express delegation from the
Minister of Education to the second appellant, and as such, the actions of the second
appellant were deemed invalid.

Nigerian courts have repeatedly stressed that, absent express provision, sub-delegation of
statutory or disciplinary powers is not permitted. In Bamgboye v. University of Ilorin, the
Supreme Court held that the power to discipline staff, conferred on the University Council
by Section 15(1) of the University of Ilorin Act, could not be sub-delegated to the Student Staff
Disciplinary and Advisory Committee (SSD & AC). The court reasoned that since the Council
itself was a delegate of the enabling law, it could not further sub-delegate the power unless
expressly authorized to do so by statute.

This principle is particularly important when the delegated powers have a judicial or
quasi-judicial element. In such cases, the body or authority vested with the power must
exercise it personally, unless the law explicitly allows sub-delegation. In James v. Nigerian
Air Force (NAF), the Court of Appeal ruled that the power to convene a general court-martial
under Section 131 of the Armed Forces Decree No. 105 of 1993 could not be delegated. This
decision reflects the court’s insistence on strict adherence to the rule against
sub-delegation in matters involving judicial or quasi-judicial powers.

The application of delegatus non potest delegare continues to be relevant in modern Nigerian
jurisprudence. In FUT, Yola v. ASUU, the Court of Appeal reaffirmed the importance of
express delegation, holding that the absence of clear evidence of delegation invalidated the
actions taken by the second appellant. The court further stated that where a statute confers
special powers on a person or authority, it is only that person or authority who is expected
to exercise those powers, unless there is express authorization for sub-delegation.

Similarly, the principle was upheld in the Bamgboye v. University of Ilorin case, where the
Supreme Court invalidated the sub-delegation of disciplinary powers by the University

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Council to the SSD & AC. The court emphasized that statutory disciplinary powers,
particularly when involving judicial elements, cannot be sub-delegated without clear and
express statutory provisions allowing for such delegation.

METHODS OF DELEGATION

In Nigeria, delegation of legislative powers is a common feature in governance, especially

to deal with the complexities of modern administration. The process of delegation allows
the legislature to transfer some of its law-making powers to other authorities, such as
ministers, government agencies, or departments. However, unlike the more formalized
approach seen in other jurisdictions, such as the United Kingdom’s Statutory Instrument
Rule, Nigeria lacks a uniform statutory procedure for delegating these powers.

Nigerian law does not impose a constitutional requirement for the legislature to maintain
control over delegated powers. However, statutes that delegate powers generally provide
specific guidelines on how such powers can be exercised by the delegate. This differs from
systems like the UK where statutory instruments and rules govern such delegations
systematically.

The legislature has discretion in choosing how it delegates its powers, and these methods
can vary depending on the nature and policy objectives of the legislation. According to
Iluyomade and Eka, there are several recognized methods:

1. Simple Delegation: Basic transfer of powers to an authority without detailed

instructions.
2. Numeration of Subject-Matter: Specifying the subject areas where the delegate can
exercise legislative powers.
3. Delegation Conditioned on Publication: Requiring the delegate to publish the
delegated rules or regulations for public awareness.
4. Delegation Subject to Legislative Approval: Making the delegation contingent on
laying the regulations before the legislature for approval or rejection.

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5. Delegation Subject to Executive Confirmation: Requiring the delegate to seek

confirmation or approval from the executive or other authority.
6. Power to Sub-Delegate: The original delegate may be allowed to sub-delegate
powers to another authority.
7. Miscellaneous Methods: Other methods, which may include combinations or
variations of the above.

These methods highlight the flexibility of the Nigerian system in delegating legislative
powers.

The courts often play a critical role in determining the validity and scope of delegated
legislation. A good example is the case of Mbah v. State, where Section 301 of the 1999
Constitution was interpreted as delegating power to the Attorney-General of the Federation.
This power allowed the Attorney-General to issue a fiat to any counsel of their choice, as
was done in this case by authorizing the law firm of Chief Afe Babalola (SAN) & Co to
prosecute the respondent.

The judiciary’s interpretation of delegation methods typically depends on the enabling

statute, which specifies how the powers are to be delegated. The courts, in many instances,
examine the specific delegation method implied in the statute to assess its validity.

There have been suggestions for the enactment of statutory instruments legislation in
Nigeria at both the federal and state levels to standardize the delegation process. Such
legislation would provide clear guidelines on how delegated powers should be exercised
and ensure consistency in administrative rule-making. This would also introduce better
checks on the exercise of delegated authority by subjecting the rules or regulations made
under such delegations to some form of legislative or executive control.

For the delegation of powers to be effective and to prevent abuse, legislative oversight
mechanisms must be strengthened. While there is no current constitutional requirement,
the introduction of statutory instruments legislation would enhance accountability. The

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Statutory Instruments Act in the UK is a good reference point. It allows for parliamentary
scrutiny of secondary legislation, ensuring that delegated powers are exercised within
defined limits and preventing excessive discretion. Nigeria could benefit from a similar
framework.

RULE MAKING PROCEDURE

1. Investigational Procedure

Investigational procedures are akin to legislative law-making processes. They involve

comprehensive discussions and deliberations to ensure fair consideration and
efficient decision-making. Administrative agencies often use this procedure to
gather information, conduct investigations, and consult stakeholders before
formulating regulations.

The Central Bank of Nigeria (CBN) uses investigational procedures to formulate

regulations governing the banking industry. Under the Weights and Measures Act,
the Minister exercises rule-making power following investigational procedures,
such as in the creation of the Weights and Measures Regulations. Weights and
Measures Act, Section 47: Grants the Minister rule-making authority, while the Central
Bank of Nigeria Act: Provides the CBN with the power to regulate the banking sector
through various procedures, including investigational ones.

2. Consultative Procedure

The consultative procedure involves seeking input from affected stakeholders. This
method ensures that those impacted by proposed regulations have an opportunity to
contribute their views and suggestions.

The National Electricity Regulatory Commission (NERC) mandates consultation with

electricity distribution companies (Discos) before proposing tariff changes. Failure
to consult adequately can lead to opposition and reversal of proposed changes. The

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Electricity Power Sector Reform Act (EPSRA): Provides a framework for NERC's
regulatory powers and mandates consultation with stakeholders. NERC Guidelines:
Specify the consultation process for tariff changes and other regulatory matters.

3. Auditive Procedure

Auditive procedures involve holding public hearings where interested parties can discuss
the subject matter of the proposed regulations. This procedure is suited for technical
subjects with identifiable stakeholders.

The National Communications Commission (NCC) may use auditive procedures when
making regulations affecting the telecommunications industry. Telecom operators,
as key stakeholders, participate in these hearings to provide input on proposed rules.
National Communications Commission Act: Grants the NCC authority to regulate the
telecommunications sector and conduct hearings for stakeholder input.

4. Adversary Procedure

The adversary procedure resembles judicial processes, where a hearing or adjudicative

body resolves competing interests before making a regulation. This process involves
taking evidence, hearing testimonies, and making recommendations. The case of
Cookey v. Fombo highlights the importance of formalizing outcomes from adversary
procedures. The failure to issue a White Paper or Official Gazette rendered the
recommendations ineffective. This case demonstrates the necessity of formal
processes for regulatory recommendations to have legal force. Cookey v. Fombo,
establishes that failure to formally document and publish recommendations can
negate their legal effect.

PUBLICATION

In Nigeria, the process of publishing subsidiary legislation, or subordinate legislation,

varies significantly from other jurisdictions like England and the United States, which have

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detailed statutory requirements for both antecedent and subsequent publication. Unlike
the English Statutory Instrument Act 1946 and the American Administrative Procedure Act
1946, which stipulate detailed procedures for the publication of rule-making, Nigerian
legislation does not have a comprehensive framework for the publication of subsidiary
legislation.

However, specific statutes in Nigeria mandate publication. For instance:

1. Petroleum Act, Cap P10 LFN 2004: Section 6(1) requires the Minister to publish
Orders in the Federal Gazette.
2. Electric Sector Reform Act, 2004: Section 96(4) mandates that regulations be
published in the Official Gazette by the Commission.
3. Extradition Act: Section 18(3) requires the Attorney-General to publish
amendments to the Act's Second Schedule in the Gazette.
4. Nigerian Citizenship Act, 1961 Section 10 requires the President to publish
changes in the Gazette.

The publication of subsidiary legislation in the Official Gazette serves to inform the public
about new regulations and rules. For example, the Nigerian Civil Aviation Order (001), 2014,
was published as S.I. No.3 of 2014.

Although antecedent publication is not required, subsequent publication in the Official

Gazette is crucial. If the enabling law mandates subsequent publication, failure to do so can
affect the validity of the subsidiary legislation.

The Supreme Court held that non-compliance with mandatory publication requirements
renders the rule-making procedure invalid. This case supports the view that without
proper publication, subsidiary legislation does not have legal force. In A-G. Bendel v.
Aideyan, the apex court affirmed that publication provides notice to the public, and failing
to publish is fatal to the exercise of delegated power. Also in Popoola v. Adeyemo, it was held

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that a declaration only gains effect from the time of publication, implying that a delayed
publication affects the legality of the declaration.

REFERENCES

1. MODERN ADMINISTRATIVE LAW & PRACTICE IN NIGERIA BY PROFESSOR

OYELOWO OYEWO
2. 1999 CONSTITUTION OF FEDERAL REPUBLIC OF NIGERIA AS AMENDED, 2023

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