Desmond O.

Emokpae 1
DELEGATION - UNAUTHORISED DELEGATION

DELEGATION – UNAUTHORISED DELEGATION

by
Desmond Osawaru Emokpae
The quest for smooth and effective running, as well as piloting state‟s affairs has

unavoidably resulted in the adoption of a practical principle known as delegation. By

delegation, it means where an agent or body is empowered with the exercise of a higher

power. Pragmatically, in the administrative aspect of a state, the power of legislation is

exclusively to be exercised by the parliament but with the myriad of functions, there comes

the need to create and empower administrative agencies with the power of legislation and

sometimes with the power of adjudication on behalf of the state hence the necessity of

delegated legislation.

While delegated legislation explains the movement of responsibility of assignment

from a higher legislative body to another, a further movement of this responsibility from the

receiving administrative body to another body is prohibited hence the Latin Maxim

‘Delegatus Non Potest Delegare’ (A delegate cannot sub delegate).

Delegatus Non Potest Delegare (which means „one to whom power is delegated cannot

himself further delegate that power) is a principle with a large recognition in administrative

law with an alternative expression in constitutional law ‘Delegata Potestas non potest

delegari’ (which means “no delegated power can be further sub delegated). The principle

which incontrovertibly exist in the jurisdiction of the United States, The United Kingdom,

India, as well as in the Catholic Canon law, forbids or proscribes a further delegation of

already delegated power by the body or agency to whom the power was first delegated. On a

simpler note, the maxim prohibits sub delegation.

In the case of Okoro v. Delta steel Co. Ltd, the appellant brought an action for wrongful

dismissal. The letter of dismissal was issued by the Acting General Manager who‟s the

appropriate authority under Decree No 1 1984 on Public Officers (Special provisions). But
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under Section 4(2) of Decree No 1, the appropriate authority was actually the Military

Governor or anyone authorized by him. The court could not find any proof that the General

Manager was so authorized and the dismissal was held to be void.

In the case of Okoro v. Delta steel Company (Supra) the court of appeal reaffirmed

that “Where power is delegated to a person, it is exercisable by him directly and personally

and he is not competent to delegate it on the principle of delegatus non potest delegare.

In Ad-Idem, John wills writes thus:

“A discretion conferred by statute is prima facie intended

to be exercised by the authority on which the statute has
conferred it and by no other authority.”

Similarly, in the case of Banard v. National Dock Labour Board (1953) 2QB18, the national

Board lawfully delegated disciplinary functions over registered Dockers to local boards. It

was held that, the local board acted unlawfully by sub delegating the power to suspend

Dockers to the Port manager.

In Vine v. N.D.L.B. (1957), the Plaintiff, a registered Dock worker, was dismissed by a

disciplinary committee appointed by the Local Dock Labour Board. The House of Lords held

that the delegation from the local board to the disciplinary committee was not permissible.

Also in Allingham v. Minister of Agriculture and Fisheries (1948), a notice requiring farmers

to grow sugar beet was held to be invalid because the task of specifying the fields had been

delegated unlawfully by a country agricultural committee to an officer.

From the above cases, it is as clear as a pike staff that the maxim ‘Delegatus non potest

delegare’ clearly forbids sub delegation of power.

However, if there be a strict adherence to the principle, a severe restraint on

administrative decision making would suffice, hence the Carltonal principle which provides

the exception that a civil servant in a department can exercise power entrusted by the

legislature to the Ministerial head of the department.

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In Carltona LTD v. Commissioner for works (1943) a notice was signed by Mr. Morse on

behalf of the commissioner of works for the requisitioning of a factory belonging to the

appellants. The appellants who were manufacturers of food products sought a declaration that

the requisitioning notice was not signed by the commissioner himself. Lord Green M. R. then

said “the duties imposed upon a minister and the powers given to the ministers are exercised

normally under the authority of the minister by responsible officials of the department…the

decision of such an official is of course the decision of the minister”. It was also stated di.cta

by Widjery L J in the case of Lewishan B C. v. Roberts (1949) that “It is not strictly a matter

of delegation; it is that the official act as the minister himself and the official‟s decision is the

minister‟s decision” this is embodied in the Latin maxim Qui facit per alium facit per se

which means „he who does an act through another is deemed in law to do it himself‟.

In the case of Local Government Board v. Arlidge (1915), A public inquiry had been

held by the Local Government Board with an appeal brought by Arlidge, the owner of a

house that had been declared unfit for human habitation. After recovering a report from the

inspectors who conducted the inquiry, the board confirmed the order. Arlidge challenged the

decision arguing that he had not seen the inspector‟s report, that he did not know which

official of the board had decided to confirm the order, and that he should have had an oral

hearing before that official. The House of Lords rejected these claims, holding that

parliament, having entrusted judicial duties to an executive body, must be taken to have

intended it to follow the procedure which was its own and was necessary if it was to be

capable of doing its work efficiently so long as the officials dealt with the question referred to

them without bias, and gave the parties an adequate opportunity of presenting the case, the

board could follow its own established procedure, even though they lose nothing.

In the case of Paul Uhunwangho Simeon v. College of Education Ekiadolor (unreported) The

appellant who was appointed by the respondents by temporary appointment was latter
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appointed as a part time lecturer in the College of Education Ekiadolor. The appellant

appointment as a part time lecturer was again converted to temporary appointment and was

never renewed then the appellant was treated as a permanent staff. Subsequently the

appellant‟s appointment was terminated.

The appellant argued that the letter terminating his appointment was issued by the Provost

through the Registrar and that none of them had such powers under section 18(2) of the

College of Education Ekiadolor edict. The court held that section 18(2) of the College of

education Ekiadolor edict gives the Governing Council powers to terminate the appointment

of any member staff if in the opinion of the council his services are no longer required and by

the letter of termination, the appellant‟s appointment was terminated because his services

were no longer required. The court further held citing section 8(2) of the College of

Education Ekiadolor Edict that the Provost shall execute the decisions of the council. The

court also held that by section 11(2) and (3) of the edict (supra), the Registrar who is the

secretary of the council and shall perform such other functions as may be assigned to him by

the provost. Therefore, the signing of the letter of termination of the appointment of the

appellant is valid.

The issue was resolved against the appellant. In summation, the court held that the appeal is

devoid of merit, same failed and it was dismissed.

In conclusion, with a bulky spectrum of responsibilities rocking the legislative body

and its personnel, the powers of legislation as well as that of adjudication sometimes become

victims of being delegated to administrative bodies. As noted earlier, a sub delegation or

further delegation of already delegated power is unauthorised. This is the point stressed by

the Latin maxim Delegatus Non postestas Delegare. However, it has also been stressed as in

Carltona principle, that powers delegated to a department can be exercised by a civil servant

in the department on the behalf of the ministerial head of the department, as such exercise
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would be reckoned done by the ministerial head, therefore explaining the Latin maxim Qui

facit per alium facit per se. Again, where a statutory duty is vested in one minster; he or she

may not adopt a policy by which the decision is effectively made by another. See Minister of

Lavender & Son Ltd. V. Minster. In such cases, the powers must be exercised personally by

the minster. Also, where discretion is vested in a subordinate officer, it may not be taken

away by orders from a superior