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In The Supreme Court of Nigeria

On Friday, the 21st day of April, 1989

S.C.202/87

 

 

Before Their Lordships

 

Kayode Eso

......

Justice, Supreme Court

Augustine Nnamani

......

Justice, Supreme Court

Adolphus Godwin Karibi-Whyte

......

Justice, Supreme Court

Saidu Kawu

......

Justice, Supreme Court

Chukwudifu Akunne Oputa

......

Justice, Supreme Court

Abdul Ganiyu Olatunji Agbaje

......

Justice, Supreme Court

Philip Nnaemeka-Agu

......

Justice, Supreme Court

    

Between

 

Federal Civil Service Commission

.......

Appellants

 

And

 

J.O. Laoye

.......

Respondent

   

 

Judgment of the Court

Delivered by

Eso. J.S.C.

 

This appeal has been brought by the Federal Civil Service Corn-mission, the Ministry of External Affairs. and the Attorney-General of the Federation against the judgment of the Court of Appeal Lagos Division, as per Uthman Mohammed, J.C.A.. concurred to by Adenekan Ademola, Owolabi Kolawole, JJ.C.A., who dismissed the appeal of the same appellants against the judgment of the High Court, Lagos State, ''Adeniji J.".

 

In the High Court, the plaintiff, J. 0. Laoye, had claimed -

 

(a)    A declaration that his purported dismissal from the employment of the Federal Civil Service Commission by a letter dated July 21, 1981 is null, void and of no effect;

 

(b)   A declaration that he is still in the employment of the Federal Ministry of External Affairs;

 

(c)    An order directing the 1st Defendant to reinstate the plaintiff to his status as a Civil Servant without prejudice to entitlements and promotions which might have accrued to him during the period of his dismissal.

 

(d)    An injunction restraining the 1st Defendant from further interfering with the plaintiff's performance of his duties as a Civil Servant.

 

The facts which led to the action are as follows: Laoye was employed as an Executive Officer, Accounts, in September, 1964. Before his posting to the Ministry of External Affairs, he served in various Ministries. He served in the Consulate General, New York, from 1973 to 1977. When he returned to Lagos after serving in New York, he was interrogated by the Police and he made a statement to the Police.

 

On 17th May, 1978, a letter titled ''Preliminary Letter" was addressed to the plaintiff. It read -

 

 

Preliminary Letter

 

It has been brought to the notice of the Ministry that during the period you served in the Consulate-General of Nigeria in New York your work and conduct are reported to be unsatisfactory in the following respects:

 

(i)    you held discussions with certain people in New York including an official of the Flying Aces Aviation Training Centre, Miami, Florida and during the discussions you presented yourself as the next in command to the Consul-General, assuring that tuition fees of students you personally recommended or approved of for training would be paid promptly;

 

(ii)     you colluded with some people including certain persons in the above-mentioned Flying Aces Aviation Training Centre to defraud the Government of Nigeria: the amount involved is about the sum of U.S. $119,000.00 which is alleged to have been paid by the Consulate-General to the Aviation Centre in respect of Government Students who did not attend that Institution;

 

(iii)  you are alleged to have received commissions for your action regarding above; as a matter of fact you received two cheques Nos. 32042 and 32043 each of U.S. $5,000 value (a total of U.S. $10,000.00) on 4th August, 1977 from or through Mr. E. E. Akwara, External Affairs Officer Grade VI of the same Consulate-General, which you duly endorsed on the reverse side. The receipt of these amounts was not brought by you to the attention of the Consul-General.

 

2.     Your acts enumerated above amount to misconduct as defined by Civil Service Rule 04201(i).

 

3.     I am directed to request you, therefore, to submit within 48 hours of receipt of this letter, through the Controller (Finance & Accounts), any representations which you may have why steps should not be taken against you for the recovery of the sum of U.S.$10,000.00 as aforementioned and all such monies improperly obtained by you in consideration of certain services rendered by you in connection with the above quoted cases. Furthermore, you should show why disciplinary action, which may include a report to the Federal Public Service Commission, should not be taken against you. Failure to receive any representations within the stipulated period will be deemed to mean that you do not have any to submit and necessary action will be taken to institute disciplinary proceedings against you accordingly.

 

4.    Please acknowledge receipt of this letter on the duplicate copy attached hereto.

 

plaintiff gave a reply to this letter on 22nd May. He said -

 

Dear Sir,

 

I humbly refer to your letter reference 3/Aa.2391T of 17th May, 1978 and submit my representations as follows:-

 

1. (i)        I categorically say that I did not present myself as next in command to the Consul-General to anybody, be it students or proprietors of Educational Institution. The designation of every officer is placed at the door of his office. We also carry business cards showing our names and official designation. It is therefore highly impossible for any officer in the Consulate-General to present himself in different light in a civilized country like America where everybody knows his right. This idea is definitely that of some mischievous officers in the Consulate-General in New York and should therefore be dismissed.

 

(ii)    I did not at anytime conclude any agreement with anybody from any Flying School especially with any officer of Flying Aces Aviation Training Centre to defraud the Government of Nigeria.

 

(iii)   It is alleged that I received U.S. $10,000.00 through Mr. E. E. Akwara on cheques Nos. 32042 and 32043, I will say with confidence that I did not receive any money from anybody through Mr. E. E. Akwara. It is very easy to prove the final beneficiary of the two cheques. The course of the two cheques can easily be traced from the drawer to the last beneficiary. Mr. Akwara is still in the service, he can be called to testify. I will like to add that all paid cheques are returned to the drawer by Banks in America.

 

2. Perhaps if you understand the position of the Accounts Officer in the Consulate-General of Nigeria, New York, you will see clearly that it is highly impossible for any Accounts Officer to arrogate any power to himself or agree with any student or Institution to defraud the Government. Any claim from students or from any Institution would not be paid unless it has been thoroughly examined and approved by the Officer in charge of Education. His approval and relevant documents are attached to the vouchers. The vouchers are then passed to the Head of Chancery who is to sign the voucher before it can be paid. The Head of Chancery ensures that all approval minutes are attached before signing the voucher for payment. I, therefore, say with all emphasis that all vouchers which I paid when I was serving in the Consulate-General in New York were properly approved and authorised before payment.

 

3. It is not easy for an Accounts officer to pay wrong students or wrong schools. Any approved claim for payment used to come to the accounts section in the files of the respective students. The file contains valid letter of Award of Scholarship and letter to the Institution introducing the student.

 

4. If therefore there are cases of wrong payment to students or to the Institutions, the student files will be available in the Consulate-General in New York. They should be produced for proper examination. The original vouchers should also be produced as they contain all the attachments which can bear my statement clearly out. I should also be thankful if the original cheques which were alleged to have been received through Mr. Akwara could be produced.

 

5. I should also like to beg that this preliminary letter being issued at this time when promotion for my set is being considered would not affect my chances. It should be conclusively proved. I am not guilty of any misconduct and I am therefore appealing to the authority that this should not be entered against me.

 

6. I beg to submit for your consideration please.

 

Your obedient servant, (Sgd.)

J. O. Laoye

(SEO Accounts)

 

 

That was not the end of the matter, for on 28th September, 1978, another letter was issued to the plaintiff. It reads

 

 

Preliminary Letter

 

Please refer to my letter No. 3/Aa.2391T of 17th May, 1978 and your representations dated 22nd May, 1978. Photocopies of Chemical Bank of New York cheques Nos. 32042 and 32043 both of 14th August, 1977 made payable to Nene W. Lanval (maiden name of Mrs. E. E. Akwara) and further made payable to you by the lady are attached. You will observe that these cheques have been endorsed by you on the reverse side.

 

I am directed, therefore, to request you to submit within 48 hours of receipt of this letter, through the Controller (Finance & Accounts), any explanations which you may have for receiving and endorsing these cheques, each for the sum of U.S. $5,000.00 (a total of U.S. $10,000), said to be certain commission received by you as mentioned in my letter referred to above. Failure to receive any explanations within the stipulated period will be deemed to mean that you do not have any to submit and necessary action will be taken to institute disciplinary proceedings against you accordingly and to recover the sum of U.S. $10,0()() as afore-mentioned and all such monies improperly obtained by you while in New York on official assignment.

 

You will please acknowledge receipt of this letter on the duplicate copy attached hereto.

 

Sgd.

(E. O. Taiwo)

for Permanent Secretary

 

And plaintiff replied on 9th October to this. He said

 

Dear Sir,

 

With reference to your letter ref. No. 3/Aa2391 of 28th September, 1978, my explanation are given below -

 

I have faint recollection that Mr. Akwara brought some cheques issued to his wife by the Chemical Bank. These cheques as I was made to understand were sent to Mrs. Akwara (Nee Landval) by the father. Mrs. Akwara as I can recollect was hospitalised for caesarian operation at the time and she could not go to the bank to cash them. The husband, Mr. E. E. Akwara therefore needed a sort of identification to be able to cash the money on behalf of his wife. He brought them to me and I endorsed the cheques for him. The cheques were for his wife and she duly signed them at the back.

 

The words 'Pay to the order of J. O. Laoye' must have been written after my simple endorsement just to be cancelled afterwards. The fact that my name was cancelled by the payee shows that no Bank will ever pay the money to me.

 

That it is being rumoured in certain quarters that I received Ten thousand dollars from Mr. Akwara is borne out of hatred of some mischievous local staff in collaboration with some jealous officers of the Consulate-General.

 

I am repeating it that I did not receive any commission from Mrs. Akwara or from any body. My endorsement was just to identify Mr. E. E. Akwara who probably cashed the money on behalf of his wife.

 

The office can seek the help of the paying Bank to know who cashed the cheques or into which account they were paid.

 

Yours obediently,

(Sgd)

J.O. LAOYE

 

However, on 21st July, 1981, he was dismissed from the service. The letter of dismissal is as follows

 

Mr. J.O. Laoye,

S.E.O. (Accounts),

u.f.s. The Permanent Secretary, Ministry of External Affairs, Administration Department, Lagos.

 

The Commission has given very careful consideration to your representations dated 22nd May, 9th October, 1978 and 18th January, 1979 respectively, which you submitted in reply to the Ministry of External Affairs letters numbers 3/Aa.2391T of 17th May, 1978, 3/Aa.2391 September, 1978 and 3/Aa.2391 of 4th January, 1979 respectively together with all the attachments but considers that have (sic) not exculpated yourself from the charges made against you in the said letters. It has directed therefore that you be, and you are hereby dismissed from the service with effect from 9th July, 1981.

 

2.    You should please surrender all government property in your possession including residential accommodation if you are occupying one.

 

(Sgd.)

F. A. Akokhia

For Permanent Secretary Federal Civil Service Commission

 

And so, the plaintiff claimed as I have stated supra.

 

The Defendants, that is the appellants' main defence was that the plaintiff was dismissed for serious misconduct, but that they complied with the Federal Civil Service Rules in the exercise. They relied on the letters I have set down, supra, and averred further that the plaintiff was given every opportunity to defend himself and that his case was fully, deliberated upon.

 

In his judgment. the learned trial Judge relied most heavily on the judgment of this Court in the case of Professor Olaniyan and Ors. V. University of Lagos & Anor. and having quoted the learned Justice of the Supreme Court almost in totality rather in extenso, added about two pages of his own and held that -

 

the Civil Service Rules to which reference has already been made invests in the public servants the cadre to which the plaintiff belongs - Legal status and they can be properly or legally removed as provided by the said Rules.

 

He granted the plaintiff's claim and ordered -

 

(a)    declaration that:- the purported dismissal from the employment of the Federal Civil Service Commission by a letter dated July 8,1981 is null, void and of no effect;

 

(b)   that plaintiff is still in the employment of the Federal Ministry of External Affairs;(b)   that plaintiff is still in the employment of the Federal Ministry of External Affairs;

 

(c)   the 1st Defendant to reinstate the plaintiff to his status as a Civil Servant without prejudice to entitlements and promotions which might have been accrued to him during the (sic) period of his dismissal.(c)   the 1st Defendant to reinstate the plaintiff to his status as a Civil Servant without prejudice to entitlements and promotions which might have been accrued to him during the (sic) period of his dismissal.

 

(d)   an injunction restraining the 1st Defendant his servants, agents etc. from further interfering with the plaintiff's performance of his duties as a Civil Servant.(d)   an injunction restraining the 1st Defendant his servants, agents etc. from further interfering with the plaintiff's performance of his duties as a Civil Servant.

 

On appeal to the Court of Appeal, by the present appellants, who were dissatisfied with the decision of the trial Court, the issues for determination were only two-fold. They were -

 

1.    Whether the appellants complied with the Provisions of the Federal Civil Service Rules 1974 in dismissing the Respondent from service.

 

2.      Whether the learned trial Judge was right in ordering re-instatement of the Respondent in view of the fact that the appellants did not comply with the Provisions of the Federal Civil Service Rules 1974 and on relying on the cases of Shitta-Bey V. Federal Public Service Commission and Olaniyan & Ors. V. University of Lagos & Anor. in coming to this conclusion.

 

The Court of Appeal in its judgment reviewed the earlier authorities of this Court, made reference to the finding of the trial court that the Federal Civil Service Commission, being a creation of Statute, must be guided by the Law and its own Regulations then held -

 

It is a fact, as shown from the record, that the Respondent had been queried by the Ministry of External Affairs on the allegations made against him and that he answered the queries. However the Ministry of External Affairs is not the body responsible to discipline the officer. It is the duty of the Civil Service Commission, the 1st appellant, to do so. The Civil Service Rules, 1974, provide for the submission of serious allegation of misconduct concerning senior public officers to the 1st appellant. Preliminary investigations made by the Ministries shall be forwarded to the Civil Service Commission which shall conduct disciplinary proceedings in the manner of a mini trial of the allegation made against an individual public officer.

 

In the case in hand the 1st appellant abdicated its responsibility by failing to investigate the allegations made by the Federal Ministry of External Affairs against the Respondent. Instead, the 1st appellant only relied on the accuser's report and without calling upon the Respondent to explain his defence, it wrote the letter reproduced above and summarily dismissed him from the service. The procedure followed by the Civil Service Commission is a clear violation of the principle of natural justice.

 

Against this decision, the appellants have further appealed to this Court. The learned Attorney General appeared in person for himself and the other appellants. More importantly, the learned Attorney indicated that he would press a review of the former decisions of this Court and in regard thereto a full court was empanelled to hear this Appeal. He listed the following as questions for determination -

 

(i)    whether the decision in Garba V. University of Maiduguri (1986)1 N.W.L.R. Part 18 page 550 applies in this case even though there was an allegation of misconduct which would appear to be crime in issue;

 

(ii)    whether the dismissal of the Respondent, having regard to all the surrounding circumstances, was in accordance with the provisions of the Federal Civil Service Rules.

 

(iii)   whether the dismissal of the Respondent, having regard to all the surrounding circumstances, is in accordance with the rules of natural justice;

 

(iv)   whether the Public Service Commission was obliged to comply strictly and literally with the provisions of section 33(1) of the Constitution 1979.

 

(v)    whether the Supremacy of the constitutional provisions as overriding the Rules was given its due recognition and effect;

 

(vi)   whether section 33(4) of the Constitution of 1979 is applicable to this case.

 

These, especially questions (i) and (v) supra appear to be weighty issues for what the learned Attorney-General has thereby indicated was whether or not the earlier decisions of this Court, indeed from Sofekun v. Akinyemi (1980) 5 S.C. 1 through Shitta-Bey (1981)1 S.C. 40; Olaniyan (1985)2 N.W.L.R. (Part 9) page 599; Garba (1986)1 N.W.L.R. (Pt.18) 550; to Adigun & Ors. (1987) 1 N.W.L.R. (Part 53)678; in which this Court has consistently emphasised the status of the Public Servant, the importance of fair hearing and the duty of the Public Service Commission to follow its Rules and Regulations, but above all, in the separation of a body like the Civil Service Commission from a Criminal Tribunal, are to be overruled.

 

And this justifies the excitement which anticipated the submissions of the learned Attorney General. However, in an Amended Brief, prepared by a Legal Adviser in the Federal Ministry of Justice, Mr. Harris-Eze, the Ministry as regards Question (i) laboured to distinguish this case from the previous cases in this Court. The Brief dealt with the case of Garba (ante) first and made reference to the decision of this Court that any finding of guilt without a trial is a breach of all the Rules of Natural Justice. The Brief regarded this Court as dealing with the disciplinary powers of the Visitor and the Vice-Chancellor under s.17 of the University of Lagos Act and as ~Chapter 4 section 1 of the Civil Service Rules' outlines the disciplinary procedure adopted by the Commission and Misconduct as defined ~includes allegations that savour of criminal offences" there is a jurisdiction herein. different from that of the Visitor, the Vice-Chancellor's and/or the Panels Set up by them.

 

The Brief then went on and it is best reproduced herein -

 

The same distinction applies mutaus 'nutandis to the disciplinary powers and jurisdiction of professional bodies like the Medical and Dental Practitioners Disciplinary Committee (Denlove v. Medical and Dental Practitioners Disciplinary Committee (1968) 1 All N.L.R. 306 and the Nigerian Bar Association (Legal Practitioners Disciplinary Committee) v.Gani Fawehinmi (1985) 2 N.W.L.R. (Part 7) page 300.

 

Obaseki, J.S.C. also recalled the judicial powers vested in the Courts by S.6 as defined in sub-section (6)(b) and held that judicial powers are not vested in private persons, administrative tribunals or other authorities, and that by the purported exercise of judicial powers, the person injured is denied the right to fair hearing under sections 33(1) and (4) by the action of those persons or authorities. By the emphasis of fair hearing in the provisions of subsections (1) and (4) of section 33 of the Constitution it is my view that the necessity of compliance with all the Rules of Natural Justice audi alteram partem and nemo judex in causa siia have been expressly stated. See page 584 lines 13-23. This point is treated separately under Question No.3.

 

In sum, and in the light of the above glaring distinctions, considering the particular circumstances and facts in the instant case as stated in Adedeji's case (supra) these judgments considered above are not appropriate precedents for the consideration of the instant case and should not weigh so heavily in its consideration.

 

That, with respect seems to be all the challenge to the previous judgments f this Court which I set out, (supra) and which challenge has necessitated the setting up of a full Panel of this Court.

 

However, on question 2, that is, compliance with the Civil Service Rules, the Brief submitted that on the 'individual facts of this case, the question of confronting the Respondent by witnesses does not arise nor does it call for setting up of a panel to try him in the form of a mini-trial."

 

As regards compliance with the rules of natural justice, the Brief said -

 

The Public Service Commission has the peculiar exception to the strict application of the principles of natural justice provisions of 5.33(1). This is so by virtue of the provisions of S.33(2) of the Constitution, 1979. What is required of the Commission under S.33(2) is substantial conformity with the principles of natural justice provided that there is a right of appeal from the decision of the Commission as is provided for an opportunity for the Respondent to make representations in writing before the Commission made its decision to dismiss the Respondent. Also the determination of the Commission is not made final and conclusive for the Respondent has unfettered access to the Courts.

 

There was a further dissertation on the concept of justice and substantive justice and with regard to strict compliance with section 33(1) of the Constitution, the brief in question IV submitted the answer was in the negative having regard to sub-section (2) of section 33.

 

Question (v), I said was important and on that the Brief has the following to say -

 

Whether the supremacy of the Constitutional provisions as over-riding the Rules was given its due recognition and effect?

 

Again the answer to this question is an imperative no and is easily sustainable upon the answer to the preceding question number (iv), in that a rather heavy weather was made of the Civil Service Rules, a subsidiary legislation, and they were given a position of pre-eminence in utter neglect of the constitutional provisions of Ss.33(2). 140(1)(b), 140(2), 145(i), 147(1), 156, Part 1 of the Third Schedule Paragraph B section 4(i)(a) and (b) and section 160.

 

The supremacy of the Constitution is not in doubt. It is pertinent to add that the Civil Service Rules (revised up to 1st April, 1974) were not made in contemplation of the Constitution of 1979. They were made long before the 1979 Constitution and must, to that extent also, be subservient to the Constitution of 1979.

 

In the final analysis, therefore, it is from this Constitution that the ultimate power and procedure are derived, and traceable.

 

Question VI also raises some issues which, because the issues therein are not very explicit, is best copied out -

 

Whether section 33(4) of the Constitution, 1979 is applicable to this case?

 

The evidence before the Court is that the offence with which the Respondent was "charged" was committed in the United States of America. In this regard it could not have been tried by any Nigerian Court for section 33(4) has no extra-territorial application.

 

The offence envisaged by section 33(4) is one committed in Nigeria for the trial of which Nigerian Courts have jurisdiction, and not an offence committed outside Nigeria which is not under the law triable in Nigeria. See Godwin Josiah V. State (1985)1 S.C. 406. See also Sofekun V. Akinyemi (1980) 5-7 S.C.1.

 

The instant case is again distinguishable to this extent from Garba V. University ofMaiduguri (supra), Denloye V. Medical and Dental Practitioners Disciplinary Committee (supra), Sofekun V. Akinyemi (supra).

 

Professor M. I. Jegede, learned counsel for the Respondent based his reply on two issues. They are -

 

(i)    Civil Service Rules; and

 

(ii)    Natural Justice.

 

On the first, the learned Professor argued that the first appellant failed to comply with the provision of the Civil Service Rules before dismissing the Respondent. Counsel then went through the provision of the Rules to show the failure of the appellants in regard thereto. He stipulated the duty of the first appellant thus -

 

It is a fact, as shown from the record, that the Respondent had been queried by the Ministry of External Affairs on the allegations made against him and that he answered the queries. However, the Ministry of External Affairs is not the body responsible to discipline the officer. It is the duty of the Civil Service Commission, the 1st appellant, to do so. The Civil Service Rules, 1974, provide for the submission of serious allegation of misconduct concerning senior public officers to the 1st appellant. Preliminary investigations made by the Ministries shall be forwarded to the Civil Service Commission which shall conduct disciplinary proceedings in the manner of a mini trial of the allegation made against an individual public officer.

 

In the case in hand the 1st appellant abdicated its responsibility by failing to investigate the allegations made by the Federal Ministry of External Affairs against the Respondent. Instead, the 1st appellant only relied on the accuser's report and without calling upon the Respondent above and summarily dismissed him from the service. The procedure followed by the Civil Service Commission is a clear violation of the principle of natural justice.

 

This the first appellant, in the submission of learned counsel, failed to do and thus it ignored vital steps in the procedure for the dismissal of a senior pensionable officer.


On Natural Justice, learned Counsel referred to the basic rule represented by the maxim "audi alteram partem" and submitted that the Respondent was denied his rights of going through all the various documents used in reaching the conclusion that he was guilty of fraud or conspiracy. And that he was denied his right to cross-examine or even know those who accused him of committing the various offences.

 

Learned Counsel further submitted in his Brief that the second appellant, the Ministry of External Affairs, was both the accuser and Judge of the situation before a recommendation was made to the first Respondent.

 

In regard to the case of Garba v. University of Maidugun' (supra), Professor Jegede said that the Court of Appeal did not, in its lead judgment, make reference to this case. Ademola, J.C.A. did, but learned Counsel submitted that what the learned Justice said was merely obiter and there could be no appeal therefrom. If, however, the pronouncement is not obiter, then the decision does not support the case of the appellant.

 

Now, and with much respect to the learned Attorney-General, it is necessary to find out if all this exercise is not one of "Much Ado About Nothing" as the law seems to be well settled and the present case has no new features. And so, it would be necessary not only to go through the Brief prepared by Mr. Harris- Eze for the Attorney-General, but also the oral submissions of learned Attorney himself.

 

And so, we would now go through the oral submissions in support of the Briefs. The learned Attorney-General prefaced his submissions with the fact that he faced an uphill task to persuade this Court in regard to this appeal, \ having regard to the line of authorities which have, over the years, flowed from this Court. Learned Attorney then submitted that his theme was that substantial justice should be done. He then made reference to the Civil Service Commission Rules and submitted that the guidelines are faulty.

 

   Learned Attorney-General next dwelt on the authority for the acceptability of the Civil Service Rules.

 

He made reference to sections 160 and 176 of the 1963 Constitution and I sections 147(1); 156 and 140 of the 1979 Constitution, and submitted that the Federal Civil Service Commission has not made Rules. It appears to me at this stage that the learned Attorney-General has not given consideration to s.274(1) of the 1979 Constitution which talks about existing law. The section provides -

 

Subject to the provisions of this Constitution, an existing law shall have effect with such modifications as may be necessary to bring it into conformity with the provisions of this Constitution and shall be deemed to be -

 

(a)    an Act of the National Assembly to the extent that it is a law with respect to any matter on which the National Assembly is empowered by this Constitution to make laws.

 

(b)   a Law made by a House of Assembly to the extent that it is a law with respect to any matter on which a House of Assembly is empowered by this Constitution to make laws.(b)   a Law made by a House of Assembly to the extent that it is a law with respect to any matter on which a House of Assembly is empowered by this Constitution to make laws.

 

Finally, Prince Ajibola said that the offence was committed in America and not in Nigeria.

 

Professor Iyiola Jegede in his own submission went through the Rules. He said there was an obvious mistake in the Table as "04108" under Dismissal in Table A should read 04107.

 

On the issue of Natural Justice, the submission of learned Counsel was that it was clear that the appellant had not observed those Rules as he was never given a fair hearing. It was the Ministry of External Affairs and not the Civil Service Commission that investigated the Respondent.

 

Firstly, I would like to dispose of the contention of the learned Attorney-General that the Civil Service Commission has made no Rules. Section 140(1) of the 1979 Constitution established the Federal Civil Service Commission. By section 147 of the same Constitution, the Commission may, with the approval of the President -

 

by rules or otherwise regulate its own procedure . . . . . . . . . . . . . .  . .  . . . . . . . . . . . .

 

The Rules now relied upon were made before 1979 when there was no Federal Civil Service Commission but a Public Service Commission as established under section 146 of the 1963 Constitution. In his written Brief the learned Attorney-General's complaint was that "the Civil Service Rules (revised up to 1st April 1974) were not made in contemplation of the 1979 Constitution. They were made long before the 1979 Constitution and must, to that extent also, be subservient to the Constitution of 1979."

 

However, in his oral submission, his contention was that the Civil Service Rules have no force of law as they were not made post 1979, and as the Public Service Commission was not the same as the Civil Service Commission. With utmost respect, this is a clear misconception of the legal position. I have already set out s.274 of the 1979 Constitution which deals with existing law. Under that provision, the Federal Government Civil Service Commission Rules in question were, on the eve of 1st October, 1979, existing law and they, on the coming into force of the Constitution, started to have effect "with such modifications as may be necessary to bring it into conformity with the provisions of sections 140 and 147 of the Constitution."

 

One other minor matter lies in the submission of the learned Attorney-General that the offence was committed outside Nigeria. The offence, he said, was committed in America and the matter might involve diplomatic immunity, or a decision could be taken not to prosecute. I believe that the learned Attorney-General was trying to find means of distinguishing the case of Garba V. University ofMaiduguri from this case. The flaws in this submission are many. Firstly, it has been settled in Queen V. Patrick Osoba 1961 All N.L.R. 237 that only a part of an offence has to be committed in Nigeria to grant jurisdiction in the Nigerian Courts. But is it, an issue here really, whether the Respondent must be prosecuted or not: I think the issue is that he must be given a hearing before he is disciplined and if the allegation is one that touches the commission of a crime, it is only a Criminal Tribunal that could convict him. In Garba V. University of Maiduguri (1986)1 N.W.L.R. (Part 18) 550, what Obaseki, J.S.C., said was -

 

If a person is accused of committing or having committed a criminal offence, his civil obligation to freedom from arrest, prosecution and punishment is called into question

 

The issue there was whether the Visitor to a University or the Vice Chancellor could assume judicial powers in criminal charges. Obaseki, J.S.C., said -

 

It is therefore clear that offences against the laws of the land fall outside the jurisdiction of the Visitor and the Vice-Chancellor

 

In that case, I tried to distinguish between what should be placed before the Domestic Forum of the Visitor and what should be laid before a Court's jurisdiction. In the instant appeal, therefore, on the issue of the misconduct of a Civil servant, whose appointment, discipline and dismissal are governed by Statute or Rules, as the case may be.

 

(1) should the Rules or Statute not be strictly adhered to? and

 

(2) should the Rules of Natural Justice not apply?

 

I would like to emphasise herein that the decision in Garba should not be taken as a prohibition of instituting disciplinary measures against civil servants where there has been a criminal charge or accusation. However, other considerations might enter. For once such criminal allegations are involved, care must be taken that the provision of s.33(4) of the Constitution are adhered to. It is not so difficult where the person so accused accepts his involvement in the acts complained of, and no proof of the criminal charges against him would be required. He has, in such a case, been confronted with the accusation and he has admitted it. He could face discipline thereafter. But in the real enactment of life drama, this is never the case. People very seldom, if at all, admit of their involvement in criminal acts.

 

For this reason therefore, let me review some of the early decisions of this Court starting with Denloye V. Medical & Dental Practitioners Disciplinary Committee (1968)1 All N.L.R. 306.

 

The appellant was accused of unprofessional conduct. That conduct amounted to a crime. The Supreme Court held -

 

In effect, where the unprofessional conduct of a practitioner amounts to a crime, it is a matter for the courts to deal with nd once the court has found a practitioner guilty of an offence, if it comes within the type of cases referred to by s.3(i)(b) -then the tribunal may proceed to deal with him under the Act.

 

This is clear enough. Conducts amounting to crime must first be a matter for the criminal Tribunal before disciplinary issues could be raised. The Supreme Court nullified the proceedings of the Tribunal.

 

Dr. 0. G. Sofekun V. Chief N. 0. A. Akin yemi & 3 Ors. (1980) 5-7 S.C. 1 also presents a clear picture. Dr. 0. G. Sofekun V. Chief N. 0. A. Akin yemi & 3 Ors. (1980) 5-7 S.C. 1 also presents a clear picture.

 

By virtue of s.62 of the Constitution of Western Nigeria 1960 a Public Service Commission was established. It is almost in the same way as s.140 of the 1979 Constitution has established a Federal Civil Service Commission. This Commission, pursuant to section 72(1) of the Constitution made the Public Service Commission Regulations. Under the 1979 Constitution, it is s.147 of that Constitution that enabled the Commission to make Rules which, by section 274 of the same Constitution are the Rules applied in the instant case.

 

A point in departure however was that the Public Service Commission Western Nigeria amended the provisions of the 1963 Regulations. The question before the Supreme Court was whether or not the amendments were valid and constitutional. By the amendment, it meant that even where a criminal offence was disclosed the Commission could proceed to investigate the alleged offence and even still proceed to disciplinary action in spite of an acquittal by the Court.

 

Fatayi-Williams, C.J.N., who delivered the judgment of the Court referred to the provisions of s.22 of the 1963 Constitution which guaranteed fair hearing within a reasonable time by a court. The Court then interpreted the words "by a court" and the word '~charged". The latter, the learned Chief Justice said, was synonymous with the word "accused" and held -

 

Moreover, because of the mandatory provisions of the subsection, it seems to me that once a person is accused of a criminal offence, he must be tried in a court of law where the complaints of his accusers can be ventilated in public and where he would be sure of getting a fair hearing  . . . . . . . . . . . . .

(Italics mine)

 

Let us compare the provisions of s.22 of the 1960 Constitution with s.33(4) of the 1979 Constitution.

 

33(4)      Whenever any person is charged with a criminal offence, he shall unless the charge is withdrawn be entitled to a fair hearing within a reasonable time by a court or tribunal.

 

Indeed, in ipsissima verba with s.22 of the 1960 Constitution. And the facts of the instant case are such that it was the criminal allegation against the Respondent that was allegedly investigated. Even further in this case, there is a further step backwards, as the Commission itself was not the investigator! The investigator was the accuser.

 

The Garba case belongs to the above stated line of cases in the sense of the investigation of the criminal complaints. The authorities have been so settled that the only added point in the Garba case was that s.6 of the 1979 Constitution in any event has vested the judicial powers in the Courts or Tribunals established under the Constitution. I said in the Garba case -

 

I think the facts in this case are clear as to the allegations made out against the appellants .......... There were charges of arson, looting, stealing, indecent assault........... The Senate was not a tribunal or court set up under the Constitution .................

 

I am of the firm view that all these authorities which I have reviewed not only accord with the Constitution but also with common sense justice. There is no way one could circumvent these authorities without violating the Constitution. And once the Constitution is toyed with, it is a goodbye to such country!

 

The line of cases which indicate the directional movement of the Courts towards fair hearing, is also strong, hard and solid.

 

In Eperokun V. University of Lagos (1986) 4 N.W.L.R. (Part 34)162 the strong words of Irikefe, C.J.N., are very apt -

 

Constitutionally entrenched provisions, particularly those safeguarding individual rights, should not, save in a fascist system, be lightly trampled upon. An appointee should not have the spectre of misconduct hanging over his head without being given an opportunity of clearing his name. (Italics mine)

 

In Olatunbosun v. Niser (1988)3 N.W.L.R. (Pt.80) 25, the issue was the status conferred by section 9 of the University of Ibadan Act. Oputa, J.S.C., delivermg the lead judgment of the Court held that as it was in the Olaniyan case, the ap p ointee acquired special status over and above the ordinary contractual relationship of master and servant at common law.

 

I think the reasoning of this Court on fair hearing, is also not only in accord with the law over the ages but agrees with common sense. Anyway, is there a reason the other side should not be heard before he is condemned? Why should he not enjoy the rights conferred upon him by law as regards his employment? Why should he not be protected by the Constitution and have criminal charges against him determined by the Courts or Tribunals set up by the Constitution itself? I think it is admitted in every reasonable culture, even apart from the decisions of this Court, that a Judge should hear both sides before determining the guilt or otherwise of a person.

 

What then is left in this case? I am not, with respect, persuaded in the least, by the submissions of the learned Attorney-General that the authorities of this Court in that regard need a review.

 

Having contended thus, one asks what is left of the issues raised in this appeal? The facts are so much on all fours with previous decisions of this Court that the Court of Appeal had no alternative but to dismiss the appeal as it did if the Civil Service Rules gives the Respondent the protection he has claimed. It is necessary for me to examine the Rules.

 

I agree with Professor Jegede that there is a mistake in the table under 04104(e). The figure 04108 in the first line and second column should read 04107 for it to be meaningful. The column deals with officers holding senior Posts on Pensionable establishments. 043107 deals with "Service misconduct" while 04108 deals with contract officers or officers on month-to-month. It has long been established that the legislator himself intends the interpreter of an enactment to construe an enactment in such a way as to implement, rather than defeat, the legislative intention. The maxim is Ut res magis valeat quam pereat.

 

And so, 04107 states the procedure to wit

 

(i)    The officer shall be notified in writing of the grounds on which it is proposed to dismiss him, and he shall be called upon to state in writing, before a day to be specified (which day must allow a reasonable interval for the purpose) any grounds upon which he relies to exculpate himself;

 

(ii)    The matter shall be investigated by the appropriate authority with the aid of the Head of the officer's Department, and such other officer or officers as the appropriate authority may appoint;

 

(iii)   If any witnesses are called to give evidence, the officer shall be entitled to be present and to put questions to the witnesses;

 

(iv)  No documentary evidence shall be used against the officer unless he has previously been supplied with a copy thereof or given access thereto;

 

(v)   If the officer does not furnish any representations within the time fixed, the Federal Public Service Commission may take such action as it deems appropriate against him;

 

(vi)  If the officer submits his representations and the Commission is not satisfied that he has exculpated himself, and considers that the officer should be dismissed, it shall take such action accordingly;

 

(vii) If upon considering the representations of the officer the Commission is of the opinion that the officer does not deserve to be dismissed from the Service but deserves some other punishment, it shall impose on the officer such punishment as it considers appropriate;

 

(viii) If upon considering the representations of the officer the Commission is of the opinion that the officer does not deserve to be dismissed but that the facts of the case disclose grounds for requiring him to retire in accordance with Rule 04114 it shall direct accordingly;

 

(ix)   In exceptional cases, if upon considering the officer's representations the Commission is of the opinion that the case against the officer needs further clarification, it shall appoint a Committee to enquire into the matter. The Committee shall consist of not less than three persons, one of whom will be appointed Chairman by the Commission. The members of the Committee shall be selected with due regard to the standing of the officer concerned, and to the nature of the complaints which are the subject of the Inquiry. The Head of the officer's Department shall not be a member of the Committee

 

(x)    The officer shall be informed that on a specific day, the question of his dismissal shall be brought before the Committee and that he shall be required to appear before it and defend himself and shall be entitled to call witnesses. His failure to appear shall not invalidate the proceedings of the Committee

 

(xi)   If witnesses are examined by the Committee, the officer shall be given an opportunity of being present and putting questions to the witness on his own behalf, and no documentary evidence shall be used against him unless he has previously been supplied with a copy thereof or given access thereto;

 

(xii)   In exceptional cases, the Committee may, in its discretion, permit the officer to be represented by a solicitor or counsel, provided that where the Committee permits the officer to be represented by Counsel, the government shall similarly be represented by a counsel;

 

(xiii)  If during the course of the inquiry further grounds for dismissal are disclosed, and the Federal Public Service Commission thinks fit to proceed against the officer upon such grounds, the officer shall by the direction of the Commission be furnished with a written statement thereof and the same steps shall be taken as are above prescribed in respect of the original grounds;

 

(xiv) The Committee having inquired into the matter shall make a report to the Commission which, if it considers that the report should be amplified in any respect or that further enquiry is desirable, may refer any matter back to the Committee for further inquiry or report accordingly. The Commission shall not itself hear witnesses;

 

(xv) If upon considering the report of the Committee together with a copy of the evidence and of all material documents relating to the case, the Commission is of the opinion that the officer should be dismissed, such action shall immediately be taken;

 

(xvi) If the Federal Public Service Commission does not approve the officer's dismissal, and does not consider that any penalty should be imposed, the officer shall be reinstated forthwith and shall be entitled to the full amount of salary denied him if he was interdicted;

 

(xvii) If the Commission considers that the officer deserves some punishment but not dismissal, it shall apply such penalty as it deems appropriate; (xviii) If upon considering the report of the Committee, the Commission is of the op in ion that the officer does not deserve to be dismissed but that the proceedings disclose grounds for requiring him to retire, the Commission shall, without further proceedings, direct accordingly.

 

Were all these done here? The answer is NO."

 

It was not the Commission that investigated the Respondent. It was his accuser - the Ministry of External Affairs - And so the question of the Commission applying rules of natural justice could never have arisen.

 

This appeal must fail. It is hereby dismissed. The judgment and order made by Adeniji, J., affirmed by the Court of Appeal is hereby further affirmed. There will be costs assessed at N500.00 to the Respondent.

 

 

Judgment delivered by

Nnamani,J.S.C.

 

I had a preview of the judgment just delivered by my learned brother, Eso. J.S.C., and I entirely agree with his reasoning and conclusions. As this is an important matter, I shall make a short contribution.

 

The facts of this case have been fully set down in the lead judgment and I do not intend to repeat them. I shall only use such of them as I find necessary for my comments.

 

On 21st July, 1981, the Federal Civil Service Commission sent the following letter to the Respondent through the Permanent Secretary, Ministry of External Affairs. It read:-

 

The Commission has given very careful consideration to your representations dated 22nd May, 1978, 9th October, 1978 and 18th February, 1979 respectively, which you submitted in reply to the Ministry of External Affairs letters numbers 3IAa.2391T of 17th May, 1978, 3/Aa.2391 of 28th September, 1978, and 3/Aa.2391 of 4th January, 1979 respectively together with all the attachments but considers that you have not exculpated yourself from the charges made against you in the said letters. It has directed therefore that you be, and you are hereby dismissed from the service with effect from 9th July, 1981.

 

This letter was tendered in the High Court proceedings later as Exhibit A. The letter was preceded by two queries from the Ministry of External Affairs to the Respondent to which he had sent replies and explanations. Those queries and replies which are mentioned in Exhibit A were tendered in the Court proceedings as Exhibits B, B 1. C and Cl.

 

Following Exhibit A. the Respondent filed a Suit in the High Court of Lagos State claiming several declaratory and injunctive reliefs two of which were that the dismissal was null, void and of no effect. and that the Respondent was still in the employment of the Federal Ministry of External Affairs. On 29th November. 19~5. Adeniji, J. entered judgment for the Respondent granting him all the reliefs claimed. The appellants herein appealed to the Court of Appeal. but that Court (Coram Mohammed,Ademola and Kolawole, JJ.C.A.) A. on 10th June, l987 dismissed the appeal. The appellants then appealed to this Court.

 

Both the appellants and Respondent filed briefs of argument in which they indicated the issues for determination in this appeal. I shall set down both as they appear to me to encompass all the matters which could arise in this appeal. I say could because some of them did not really arise having regard to the trend of oral submission by counsel to this Court. The issues as seen by the appellants were as follows:

 

(1)    whether the decision in Garba v.Unversity of Maiduguri ( l986) I N.W.L.R. part l 8, page 550 applies in this case even though there was an allegation of misconduct which would appear to be a crime in issue

 

(ii)  whether the dismissal of the Respondent. having regard to all the surrounding circumstances, was in accordance with the provisions of the Federal Civil Service Rules.

 

(iii)  whether the dismissal of the Respondent having regard to all the surrounding circumstances, is in accordance with the rules of natural justice.

 

In the Respondent's brief. the issues were seen as follows:

 

(1)    whether this Court should interfere with concurrent findings of fact of the courts below

 

(ii)    whether the 1st appellant complied with the Civil Service Rules before dismissing the Respondent.

 

(iii)   whether the Civil Service Rules arc in conflict with any of the provisions of the Constitution with regards to the powers of he Public Service Commission to employ and dismiss staff.

 

(iv)   whether the Court of Appeal was wrong in applying the provisions of Section 33(4 ) of the 1979 Constitution to the fact of this case.

 

(v )    whether the Court of Appeal should adhere rigidly to the previous decisions of the Supreme Court.

 

(vi)  whether the right to fair hearing in Section 33(1) of the 1979 Constitution imports the rules of Natural Justice and whether the 1st appellant complied with the Rules of Natural Justice before dismissing the Respondent.

 

It can be seen that some of the issues coincide. However, from the submissions of counsel, and some of the facts of the case, some of the issues, as I said earlier, are no longer in contention. For instance, in oral argument, the learned Attorney-General of the Federation, Prince Bola Ajibola, S.A.N., for the appellants, indicated that he was not disputing the facts as found by the two Courts. It would therefore be unnecessary to consider such matters as whether the concurrent findings of the two lower courts should be upset by this Court. In fact, I think that issues (i), (ii) and (iii) in the appellant's brief, and issues (ii), (iii), (iv) and (vi) in the Respondent's brief cover all the issues that really arise for determination in this appeal, and it is in respect of them that I intend to make my contribution.

 

The first issue I would wish to deal with is the Federal Government Civil Service Rules, 1974, under which it is common ground the Respondent was purportedly dismissed. The first questions to ask is whether those Rules were still in existence. The Hon. Attorney-General submitted that they had ceased to exist when the 1979 Constitution came into effect. He referred to Sections 140(i)(b), 147 and 156 of the 1979 Constitution which made provision for a Federal Civil Service Commission and vested it with certain powers. Particularly, Section 147(i) empowers the Commission to make rules with the approval of the President. He contended that no rules had been made pursuant to this. He also referred to part 1(b) of Third Schedule to the 1979 Constitution as to the composition of the Commission. Although he adverted to Section 274 and the 1979 Constitution, he submitted that he could not place the Civil Service Rules within Section 274(4)(b).

 

It seems to me that the Civil Service Rules, 1974 were made pursuant to the powers conferred on the Federal Public Service Commission by Section 160 of the Constitution of the Federation No.20 of 1963. The Rules were in existence in 1979 when the Constitution came into effect. By virtue of Section 274(1) and 274(4) of the 1979 Constitution they were existing law subject to such modifications as may be necessary pursuant to Section 274(4)(c) therein.

 

The next question then is which of the Rules is applicable. Looking at Chapter 4 which deals with discipline, I do not think it is difficult to agree with the learned Attorney that Rule 04106 is inapplicable and so any guideline which attempts to take together 04106, 04108 and 04107 would be wrong. If one starts with Rule 04104, it is clear that it is only sub (e) which provides that "Disciplinary proceedings shall be conducted in accordance with the provisions of the Rule........................... " that is relevant in the circumstances of this case. Under the relevant table, 04108 is for "officers holding senior posts on the pensionable establishments" while for "officers holding senior appointments on agreement, probation or contract" the Rule is 04107. Then later on, Rule 04107 is defined to apply to all officers in the Public Services except the following:-

 

(a)    officers on contract or month to month terms

 

(b)    unestablished staff and

 

(c)    non-pensionable staff etc.

 

It is clear from this that 04107 applies to officers on pensionable posts which was earlier stated to be under Rule 04108. Does one therefore allow this error in the face of the clear intention of the legislature? I think not. It is accepted that where the main object and intention of a statute are clear, it must not be reduced to a nullity by the draftsman's unskillfulness (or error?) or ignorance of the law. See Cramas Properties Ltd. ',. Connaught Fur Trimmings Ltd. (1965)1 W.L.R. 892. Besides, it has always been accepted that a statute should be so construed as to achieve the object it was intended to serve. This is the basis of the construction Ut res magis valeat quam pereat As Viscount Simon L.C. said in Nokes vs DoncasterAmalgamated Collieries Ltd. (1940) A.C. 1014,

 

we should avoid a construction which would reduce the legislation to futility and should rather accept the bolder construction based on the view that Parliament would legislate only for the purpose of bringing about an effective result.

 

See also Udoma and Idigbe, JJ.S.C. in Nafiu Rabiu V. Kano State (1980) 1-8 S.C. 130.

 

I think one can make the correction and hold that it is Rule 04107 that is applicable. In order to decide whether the appellants complied with this rule, it is essential to set it down. It reads:

 

An officer in the Federal Public Service may be dismissed by the Federal Public Service Commission only in accordance with the following rules unless the method of dismissal is otherwise provided for in these Civil Service Rules:

 

(i)    The officer shall be notified in writing of the grounds on which it is proposed to dismiss him, and he shall be called upon to state in writing, before a day to be specified (which day must allow a reasonable interval for the purpose) any grounds upon which he relies to exculpate himself;

 

(ii)   The matter shall be investigated by the appropriate authority with the aid of the Head of the officer's Department, and such other officer or officers as the appropriate authority may appoint;

 

(iii)   If any witnesses are called to give evidence, the officer shall be entitled to be present and to put questions to the witnesses;

 

(iv)  No documentary evidence shall be used against the officer unless he has previously been supplied with a copy thereof or given access thereto;

 

(v)   If the officer does not furnish any representations within the time fixed, the Federal Public Service Commission may take such action as it deems appropriate against him;

 

(vi)  If the officer submits his representations and the Commission is not satisfied that he has exculpated himself, and considers that the officer should be dismissed, it shall take such action accordingly;

 

(vii) If upon considering the representations of the officer the Commission is of the opinion that the officer does not deserve to be dismissed from the Service but deserves some other punishment, it shall impose on the officer such punishment as it considers appropriate;

 

(viii) If upon considering the representations of the officer the Commission is of the opinion that the officer does not deserve to be dismissed but that the facts of the case disclose grounds for requiring him to retire in accordance with Rule 04114, it shall direct accordingly;

 

(ix)   In exceptional cases, if upon considering the officer's representations the Commission is of the opinion that the case against the officer needs further clarification, it shall appoint a committee to enquire into the matter. The Committee shall consist of not less than three persons, one of whom will be appointed Chairman by the Commission. The members of the Committee shall be selected with due regard to the standing of the officer concerned, and to the nature of the complaints which are the subject of the inquiry. The Head of the officer's Department shall not be a member of the Committee;

 

(x)    The officer shall be informed that on a specific day, the question of his dismissal shall be brought before the Committee and that he shall be required to appear before it and defend himself and shall be entitled to call witnesses. His failure to appear shall not invalidate the proceedings of the Committee;

 

(xi)   If witnesses are examined by the Committee, the officer shall be given an opportunity of being present and of putting questions to the witnesses on his own behalf, and no documentary evidence shall be used against him unless he has previously been supplied with a copy thereof or given access thereto;

 

(xii) In exceptional cases, the Committee may, in its discretion, permit the officer to be represented by a solicitor or counsel, provided that where the Committee permits the officer to be represented by Counsel, the government shall similarly be represented by a counsel;

 

(xiii) If during the course of the inquiry further grounds for dismissal are disclosed, and the Federal Public Service Commission thinks fit to proceed against the officer upon such grounds, the officer shall by the direction of the Commission be furnished with a written statement thereof and the same steps shall be taken as are above prescribed in respect of the original grounds;

 

(xiv) The Committee having inquired into the matter shall make a report to the Commission which, if it considers that the report should be amplified in any respect or that further enquiry is desirable, may refer any matter back to the Committee for further inquiry or report accordingly. The Commission shall not itself hear witnesses;

 

(xv) If upon considering the report of the Committee together with a copy of the evidence and of all material documents relating to the case, the Commission is of the opinion that the officer should be dismissed, such action shall immediately be taken;

 

(xvi) If the Federal Public Service Commission does not approve the officer's dismissal, and does not consider that any penalty should be imposed, the officer shall be reinstated forthwith and shall be entitled to the full amount of salary denied him if he was interdicted;

 

(xvii) If the Commission considers that the officer deserves some punishment but not dismissal, it shall apply such penalty as it deems appropriate;

 

(xviii) If upon considering the report of the Committee, the Commission is of the opinion that the officer does not deserve to be dismissed but that the proceedings disclose grounds for requiring him to retire, the Commission shall, without further proceedings, direct accordingly.

 

The learned Attorney-General had submitted that the first appellant complied with sub rules (i), (ii), (iv), (v) and (vi). He thought sub rule (iii) was not applicable. With all respect, I am inclined rather to agree with Professor Jegede that these sub rules were not complied with and the Respondent cannot be said to have been dismissed under them. Although I shall deal more with this when I come to deal with natural justice, I shall add here that it has to be remembered that all the communication in this matter was between the Ministry of External Affairs, which in the circumstances of this case was the accuser, and the Respondent. Before the first appellant wrote Exhibit A to the Respondent, it did not deem it necessary to inform the Respondent of the possibility of dismissal and so call for his explanations as clearly required by sub-rule 1. It did not establish any inquiry to go into the matter. If it took evidence from any witnesses, the Respondent did not know and was not informed. The 1st appellant merely acted on the queries sent to the Respondent to which the Respondent had replied. This failure to comply with the sub-rules of rule 04107 really takes this matter into the question of natural justice.

 

Most of the sub-rules were drafted no doubt to ensure compliance with those rules. Section 33(1) of the 1979 Constitution provides for fair hearing, a principle offairness which is the basis of all the rules of natural justice. The twin pillars of this as have so repeatedly been decided by the Courts are "Audi alteram partem" and "Nemo judex in causa Sua" See Adedeji V. Police Service Commission (1967) All N.L.R. 67; Kanda V. Government of Malaya (1962) A.C. 322; Buzugbe V. Civil Service Commission (1984) 7 S.C. 19; Garba v. University of Maiduguri (1986)1 N.W.L.R. (Pt. 18)550; Aiyetan v. NIFOR (1987) 3 N.W.L.R. (Pt.59) 48 Olaniyan v. Univesity of Lagos (1985)2 N.W.L.R. (Pt.9) 578 and Eperokun v. University of Lagos (1986) 4 N.W.L.R. (Pt.34) 162.

 

Did the appellants observe the principles of natural justice? In my judgment the answer is in the negative. The Respondent was surely heard by the Ministry of External Affairs, but the Ministry turned not only accuser but Judge too as can be seen from the exhibits. But it is in the manner the 1st appellant dealt with the issues before the purported dismissal of the Respondent, that violation of natural justice definitely occurred. The first appellant cannot be said to have given the Respondent a hearing. It never conveyed to the Respondent the grounds on which it proposed to dismiss him so as to afford him an opportunity of making representations. Having got the exhibits which it claimed to have considered, it is not clear what other materials it took into account before deciding to dismiss the Respondent. If indeed there were such materials, they were never brought to the attention of the Respondent. If the Ministry of External Affairs made further enquiries into the replies of the Respondent to its queries, such inquiry was not brought to the attention of the Respondent. More disturbing in the context of this case, is the fact that in Exhibits Bi and Ci (the replies to the queries), the Respondent mentioned the names of several persons - Mr. and Mrs. Akwara officials from the Flying School etc. who he thought were in a position to throw more light on this matter. There is nothing to indicate that such persons were contacted. If they were, the Respondent was entitled to be present during their testimony and to cross-examine them if he chose. This was not done. The Respondent even made reference to financial procedures both in the Nigerian Consulate in New York and in the Chemical Bank which he thought could show his innocence. There was nothing to show that these matters were examined.

 

These would be sufficient to dispose of this appeal. I do not think it is necessary to consider in any detail the case of Garba (Supra) which formed the basis of the decision of Ademola, J.C.A., particularly as the learned Attorney-General was no more urging this Court to overrule it. I can only reiterate the decision of this Court in that case, as in other cases before (See Sofekun etc) that where the indiscipline complained of amounts to crimes under the Criminal or Penal Code, it is the Courts set up under the Constitution that must have jurisdiction. With respect, I find no distinguishing mark between this case and Garba. In effect, the Respondent was being accused of such heinous crimes as impersonation, corruption, stealing etc. I think Section 33(4) of the Constitution was applicable here.

 

Finally, one cannot end this judgment without taking note of the concern expressed by the Hon. Attorney-General of the Federation about these types of cases. He sought for substantial justice saying that justice is a three way thing. I think it must be conceded that in most of the cases in this area of the law, and indeed in recent times, the dismissal of public officers has most been set aside. A greater attention by public authorities to the reasons which inform these decisions would in my view remove what may appear to be a conflict between policy and the due administration of law. There ought to be none and indeed there is no conflict. The duty of the Courts is to protect the rights of the individual in a democratic society governed by the Rule of law. That protection must necessarily be accorded to an individual deprived of his office without due adherence to the rules made specifically to govern the appointment and removal of persons from such offices. In Aiyetan's case (supra) at p.59, I said,

 

This Court is once more called upon to examine the principles of natural justice as they relate to disciplinary action taken against employees by public institutions. It is a healthy development that the Supreme Court, as the Court of last resort, should constantly and firmly pronounce on it, for it cannot be said too often that the twin pillars of the principles of natural justice carry our whole structure of a free society based on the Rule of law. Fair hearing and the principle of fairness are also entrenched in the provisions of Section 33(1) of our Constitution, the Constitution of the Federal Republic of Nigeria, 1979. Besides, as public and private institutions have to deal with matters of discipline as they affect long serving staff, the Courts have a duty to point to the proper procedures that must be used in such matters.

 

For these reasons, and the fuller reasons in the lead judgment of Eso, J.S.C. I, also, dismiss the appeal. I abide by all the orders made by my learned brother, Eso, J.S.C. including the order for costs.

 

 

Judgment delivered by

Karibi-Whyte,J.S.C.

 

On the 10th June, 1987 the Court of Appeal, Lagos Judicial Division dismissed the appeal of appellants against the judgment of Adeniji, J., of the High Court of Lagos wherein the following declarations sought by the Respondent/as plaintiff against the appellants/as Defendants were granted the Respondent.

 

(a)    A declaration that his purported dismissal from the employment of the Federal Civil Service Commission by a letter dated July 21, 1981, is null and void and of no effect;

 

(b)   A declaration that he is still in the employment of the Federal Ministry of External Affairs;

 

(c)   An order directing the 1st Defendant to reinstate the plaintiff to his status as a Civil Servant without prejudice to entitlements and promotions which might have accrued to him during the period of his dismissal.

 

(d)   An injunction restraining the 1st Defendant from further interfering with the plaintiffs performance of his duties as a civil servant.

 

This is an appeal from the judgment of the Court of Appeal.

 

I have read the judgment of my learned brother, Kayode Eso, J.S.C., in this appeal. I agree entirely with his reasoning and conclusions that this appeal should be dismissed. I adopt the statement of facts which are not in dispute, which led to this action as stated in the judgment of my learned brother, Kayode Eso, J.S.C. I only will summarise the facts in so far as they are relevant to my decision.

 

The Respondent, J. 0. Laoye, was employed by the 1st appellant and this is not in dispute, in September, 1964, as an Executive Officer (Accounts) by the Federal Civil Service Commission.

Respondent was dismissed by the 1st appellant from its employment on the 21st July, 1981.

 

Respondent was posted to the Ministry of External Affairs, where between 1973 and 1977 he served in the Consulate-General in New York. Whilst serving at this posting as Accounts Officer, certain allegations of official corruption, and conduct amounting to impersonation were made against the Respondent.

 

As a result of these allegations, the 2nd appellant by letters dated 17th May and 28th September, 1978, Exhibits '~B" and "B 1" issued queries calling upon the Respondent to answer the allegations. Respondent promptly and by letters dated 22nd May and 9th October, 1978 Exhs. "C" and "Ci", answered the accusations, explaining his position to the 2nd appellant. Thereafter by a letter dated 21st July, 1981, 1st appellant purported to have summarily dismissed Respondent with effect from 9th July, 1981 (See Exh. A). Respondent therefore brought an action claiming from the appellants the above Declarations which were granted by the High Court.

 

The contention of Respondent in his statement of claim is that being a confirmed permanent officer, the condition of his employment is governed by the Civil Service Rules, and that his dismissal from the employment of the Federal Civil Service Commission was carried out in contravention of the Federal Civil Service Rules. It was contended that his dismissal was in bad faith and in total disregard of the rules of natural justice.

 

The appellants' defence is that Respondent was dismissed for serious misconduct, in compliance with the provisions of the Civil Service Rules. They relied on the letters already referred to and contended that Respondent was given every opportunity to defend himself and he took advantage of it. It was submitted that the explanation of the Respondent was fully considered before 1st appellant acted in accordance with the provisions of the Federal Civil Service Rules.

 

The two Courts below held that appellants neither complied with the relevant provisions of the Federal Civil Service Rules nor were the rules of natural justice adhered to in the action against the Respondent.

 

The ratio of the decision in the High Court was that

 

the Civil Service Rules to which reference has already been made invests in the public servants the cadre to which the plaintiff belongs - legal status and they can be properly or legally removed only as provided by the said rules.

 

The issues for determination in the Court below related to

 

(1)    Compliance with the provisions of the Federal Civil Service Rules, 1974, in connection with the dismissal of the Respondent, and

 

(2)    Reinstatement of the Respondent on the Order of the Court because of non-compliance with the Federal Civil Service Rules, 1974.

 

In the judgment of the Court of Appeal the ratio for dismissing the appeal and answering of both questions were stated as follows -

 

It is a fact as shown from the record, that the Respondent had been queried

by the Ministry of External Affairs on the allegations made against him and that he answered the queries. However, the Ministry of External Affairs is not the body responsible to discipline the officer. It is the duty of the Civil Service Commission, the 1st appellant, to do so. The Civil Service Rules, 1974, provide for the submission of serious allegation of misconduct concerning senior public officers to the 1st appellant. Preliminary investigations made by the Ministries shall be forwarded to the Civil Service Commission which shall conduct disciplinary proceedings in the manner of a mini trial of the allegation made against an individual public officer.

 

In the case in hand, the 1st appellant abdicated its responsibility by failing to investigate the allegations made by the Federal Ministry of External Affairs against the Respondent. Instead, the 1st appellant only relied on the accuser's report and without calling upon the Respondent to explain his defence, it wrote the letter, reproduced above, and summarily dismissed him from the service. The procedure followed by the Civil Service Commission is a clear violation of the principles of natural justice.

 

 

Thus the Court below held that there was non-compliance with the pro visions of the Civil Service Rules relating to disciplinary proceedings against the Respondent, and that the manner of such non-compliance was a violation of the principles of natural justice. It is this decision that is before us on further appeal again by the appellants.

 

Appellants filed and relied on eight grounds of appeal in challenging the chief reason given by the Court of Appeal in dismissing the appeal. I do not consider it necessary to reproduce the grounds of appeal since the six issues for determination adequately cover all the grounds. The issues are as follows

 

(i)    whether the decision in Garba v. University of  Maiduguri (1986) 1 N.W.L.R. (Part 18) page 550 applies in this case even though there was an allegation of misconduct which would appear to be a crime in issue;

 

(ii)    whether the dismissal of the Respondent having regard to all the surrounding circumstances, was in accordance with the provisions of the Federal Civil Service Rules;

 

(iii)  whether the dismissal of the Respondent, having regard to all the surrounding circumstances, is in accordance with the rules of natural justice;

 

(iv)   whether the Public Service Commission was obliged to comply strictly and literally with the provisions of section 33(1) of the Constitution, 1979;

 

(v)   whether the supremacy of the constitutional provisions as overriding the Rules was given its due recognition and effect;

 

(vi) whether section 33(4) of the Constitution of 1979 is applicable to this case."

 

It does not seem to me, on the facts of this case, strictly relevant to consider the issues for determination set out in (i) and (v), (vi) although the learned Honourable Attorney-General, Prince Bola Ajibola, S .A N. ,who appeared in person laid considerable emphasis on these issues and indicated an invitation to this Court to reconsider its earlier decisions from Sofekun v. Akinyemi (1980) 5-7 S.C. 1, to Shitta-Bey v. Federal Civil Service Commission (1981)1 S.C. 40 to Prof Olaniyan & ors. v. University of Lagos & ors. (1985)2 N.W.L.R. (Part 9)599 to Garba v. University of Maiduguri (1986)1 N.W.L.R. (Pt. 18) 550 to Adigun & Ors. v. Attorney-General of Oyo State (1987)1 N.W.L.R. (Pt.53) 678. In these cases this court had pronounced upon the legal status of public servants and the importance of the observance of the statutory provisions governing their status and tenure, and the responsibility of the person or institution exercising disciplinary powers to observe the rules of natural justice.

 

My brother, Kayode Eso, has treated the argument in the first issue in great detail. I do not want to add to that exercise. I wish only to say that the ratio of the judgment of the Court of Appeal does not seem to have bearing to the contention of the appellants. The only common feature they possess is that in each case the institution exercising authority violated compliance with its enabling rules and the rules of natural justice with regard to fair hearing.

 

The question of the allegation of a criminal offence in Sofekun V. Akinyemi, supra),Garba V. University of Maiduguri (supra), on which the authority to exercise disciplinary power was based is not an issue in the instant appeal. Similarly the question raised in issue No. (vi). The contention of the Respondent is that the provision of the Federal Civil Service Rules, 1974 was violated by the 2nd appellant, who had no authority to exercise disciplinary powers over him. The 1st appellant exercised its powers to dismiss without hearing the Respondent, and this is a violation of the rules of natural justice.

 

In my opinion the issues (ii)-(iv) set out above are the relevant issues on the facts of this case. I emphasise that the facts are not disputed. What is being disputed is the legal effect of the acts of the 1st and 2nd appellants.

 

In his submission on question (ii) the learned Honourable Attorney-General contended that the 1st appellant enjoys a peculiar exception under section 33(2) of the Constitution, 1979, to the strict application of the principles of natural justice as prescribed by section 33(1) of the Constitution, 1979. It was argued that "what is required of the Commission under s.33(2) is substantial conformity with the principles of natural justice provided that there is a right of appeal from the decision to dismiss the Respondent. Also the determination of the Commission is not made final and conclusive for the Respondent has unfettered access to the Courts." Basing his argument on the above, the Hon. Attorney-General submitted that all the 1st appellant is required to do is to ensure that substantial justice was done to the Respondent. He argued that the guidelines to the Civil Service Rules were faulty. In fact he went further to doubt the authority of the Rules and came to the conclusion that the Civil Service Commission as it is now known since 1979, has no Rules. For this submission he argued that the Rules were made in 1974 by virtue of sections 160 and 176 of the Constitution of 1963, and no rules have been made under sections 147(1); 156 and 140 of the 1979 Constitution.

 

The contention appears to ignore the fact that the Public Service Commission (Delegation of Powers) Notice 1975 L.N. 71 of 1975 is a subsidiary legislation made by the Chairman of the Public Service Commission by virtue of powers vested in him by s.147(1) of the Constitution, 1963. Thus oncoming into force on October 1, 1979 and remaining unrepealed, it continued in force as an existing law of the National Assembly which was in force before the coming into force of the Constitution, 1979. Accordingly it is the Rules made under the 1963 which continue validly in force as the Rules made by the Civil Service Commission established under the 1979 Constitution.

 

It is in this regard that the issue in (v) becomes relevant. The learned Attorney-General submitted that there is a conflict between a provision of the Constitution, 1979 and the Rules made under the Constitution, i.e. The Civil Service Rules. In such a situation the provisions of the Constitution will prevail. There is no doubt where there is a conflict, the Constitution being the fundamental law of the land and any other law inconsistent with it remains invalid pro tanto -See s.1(3) Constitution, 1979. But all existing laws, which as I have been shown the Public Service Commission Rules is, were by section 274(1) of the Constitution to have and had effect on the coming into force of the 1979 Constitution "with such modifications as may be necessary to bring it into conformity with the provision of sections 140 and 147 of the Constitution." The only modification here which is not one of substance but form is to change the name to the Civil Service Commission under the provision of section 140 and schedule 3 part 1(B) of the 1979 Constitution. There appears to be no inconsistency and the learned Attorney-General was unable to show any.

 

The real issue before the courts below was whether the appellants complied with the provisions of the Civil Service Rules relating to the dismissal of the Respondent. Before us the issue is whether the Court below was right in holding that there was no compliance? I have already stated that the facts are not in dispute.

 

The facts which I have summarised in this judgment is at the risk of tedious repetition restated to show the relationship of Respondent to the two appellants 1 & 2 in the entire transaction. First appellant is the Employer of the Respondent, and by virtue of Rules 04107 of the Civil Service Rules is vested with the exercise of disciplinary jurisdiction over him. Second appellant is the immediate head of the Respondent when he was posted to the Ministry of External Affairs as a Senior Executive Officer (Accounts). Second appellant is vested with limited exercise of disciplinary jurisdiction over the Respondent, but has no powers to make any determination in respect of the tenure of service of the Respondent. Second appellant had accused Respondent with certain wrong doings connected with the performance of his office involving fraud and impersonation. If established they amount to misconduct in respect of which Respondent was liable to dismissal from the service.

 

Second appellant accused Respondent with the commission of the offences in letters of queries dated May 17th, and September 28, 71978, Exhs. "B" & "Bi". The Second appellant received the answers of the Respondent to the queries, dated 22nd May and 9th October, Exhs. "C" and "Cl" and would appear to have investigated the allegations, and finally made a report to the 1st appellant.

 

First appellant, relying on the letters of accusation of the 2nd appellant, answers to these letters by the Respondent, and the report of the 2nd appellant exercised his power under Rule 04107 of the Civil Service Rules and dismissed the Respondent from the Civil Service. The letter of the 1st appellant dismissing the Respondent reproduced hereunder is self-explanatory.

 

Federal Civil Service Commission, Private Mail Bag 12586

Lagos, Nigeria

 

21st July, 1981

 

Mr. J.O. Laoye,

S.E.O. (Accounts),

u.f.s. The Permanent Secretary,

Ministry of External Affairs,

Administration Department,

Lagos.

 

The Commission has given very careful consideration to your representations dated 22nd May, 1978, 9th October, 1978, and 18th January, 1979 respectively, which you submitted in reply to the Ministry of External Affairs letters numbers 3/Aa.2391T of 17th May, 1978, 3/Aa.2391 of 28th September, 1978, and 3/Aa.2391 of 4th January, 1979 respectively together 'with all the attachments, but considers that you have not exculpated yourself from the charges made against you in the said letters. It has directed therefore that you be, and you are hereby dismissed from the service with effect from 9th July, 1981.

 

2. You should please surrender all government property in your possession including residential accommodation if you are occupying one.

 

(F. A. Akokhia)

for Permanent Secretary,

Federal Civil Serv. Commission.

 

It has not been contradicted that at the time of the exercise of the disciplinary jurisdiction to dismiss the Respondent, he was a Senior Executive Officer (Accounts) on GL.09. Under the provisions of s.1(1), and 2, the schedule to the Civil Service Commission (Delegation of Powers) Notice, 1975 which came into force on 30th August, 1975, power to reprimand any Officer in the Civil Service of the Federation was delegated to the Secretary to the Federal Military Government. The powers delegated to Permanent Secretaries and Heads of extra ministerial departments are set out in the schedule to the Delegation Notice. Item 3 of the schedule deals with delegations in respect of officers of Grade Level 07 and up to Grade Level 09 whether the Officer was confirmed or not in that post. The power to exercise disciplinary control except dismissal has been delegated to Permanent Secretaries. On the conclusion of the exercise of the power details of all disciplinary actions shall be forthwith reported to the Commission.

 

The procedure for disciplinary proceedings is prescribed in Chapter 4 of the Federal Government Civil Service Rules. Rule 04104(e) sets out the rules governing the particular misbehaviour, the sanction attaching to it and the status of the Officer involved. There is no delegation of the exercise of disciplinary jurisdiction in respect of officers holding senior Posts on the Pensionable establishments. The procedure to be followed in those cases are those prescribed under 04107, 04109, 04113, in respect of misconduct not meriting dismissal 04106 applies. 04114 applies in respect of removal for general inefficiency.

 

After stating the definition of officer in 04107 and excluding

 

(a)   officers on contract or month-to-month terms,

 

(b)   unestablished staff, and

 

(c)   non-pensionable staff etc.,it is provided

 

as follows -

 

An officer in the Federal Public Service may be dismissed by the Federal

Public Service Commission only in accordance with the following rules unless the method of dismissal is otherwise provided for in these Civil Service Rules:-

 

Thus the procedure for dismissal of officers so defined can only be found in these Rules which are in this regard to be regarded as exhaustive.

 

The most important of the procedure prescribed and relevant to this case are (i) - (vi), (ix), (x), (xiii) which I reproduce hereunder.

 

(i)    The officer shall be notified in writing of the grounds on which it is proposed to dismiss him, and he shall be called upon to state in writing, before a day to be specified (which day must allow a reasonable interval for the purpose) any grounds upon which he relies to exculpate himself;

 

(ii)    The matter shall be investigated by the appropriate authority with the aid of the Head of the officer's Department, and such other officer or officers as the appropriate authority may appoint;

 

(iii)    If any witnesses are called to give evidence, the officer shall be entitled to be present and put questions to the witnesses;

 

(iv)    No documentary evidence shall be used against the officer unless he has previously been supplied with a copy thereof or given access thereto;

 

(v)    If the officer does not furnish any representations within the time fixed, the Federal Public Service Commission may take such action as it deems appropriate against him;

 

(vi)    If the officer submits his representations and the Commission is not satisfied that he has exculpated himself, and considers that the officer should be dismissed, it shall take such action accordingly.

 

(ix)    In exceptional cases, if upon considering the officer's representations the Commission is of the opinion that the case against the officer needs further clarification, it shall appoint a Committee to enquire into the matter. The Committee shall consist of not less than three persons, one of whom will be appointed Chairman by the Commission. The members of the Committee shall be selected with due regard to the standing of the officer concerned, and to the nature of the complaints which are the subject of the Inquiry. The Head of the officer's Department shall not be a member of the Committee;

 

(x)    The officer shall be informed that on a specific day, the question of the dismissal shall be brought before the Committee and that he shall be required to appear before it and defend himself and shall be entitled to call witnesses. His failure to appear shall not invalidate the proceedings of the Committee;

 

(xiii) If during the course of the inquiry further grounds for dismissal are disclosed, and the Federal Public Service Commission thinks fit to proceed against the officer upon such grounds, the officer shall by the direction of the Commission be furnished with a written statement thereof and the same steps shall be taken as are above prescribed in respect of the original grounds.

 

It is unarguable that 1st appellant has not complied with any of the prescribed requirements in the procedure outlined above. He has also not shown that the method of dismissal is otherwise provided for in the Civil Service Rules.

 

First, Respondent was never notified in writing that it was proposed to dismiss him, since the letters of accusation to which his explanations were required were written to him by 2nd appellant who has no powers to dismiss and not by the 1st appellant who is vested with such powers. Again 1st appellant who exercised the power to dismiss Respondent did not hear Respondent on any of the accusations made against him by 2nd appellant and did not himself make any accusation against the Respondent. 1st appellant did not call for any representation on the accusation and Respondent did not furnish 1st appellant with any representation.

 

Professor Jegede, Counsel to the Respondent was quite right and on firm ground when he submitted that 1st appellant abdicated its responsibility in its failure to investigate the allegation made by the Federal Ministry of External Affairs against the Respondent. I think the proper procedure to be adopted in accordance with 04107 is as follows -

 

The Ministry complaining of a misconduct shall report the matter to the

Civil Service Commission, which shall on examination of the report, notify the affected officer in writing of the proposal to dismiss him and the grounds for doing so and calling upon him to state his defence in writing before a date to be specified.

 

The matter shall then be investigated by a panel set up by the Civil Service Commission with the accusing Ministry, and such other officer or officers as the appropriate authority may appoint, giving assistance. The affected officer will be entitled to be present at the investigation before the panel and to put questions to witnesses to be called. He is also entitled to be shown, and have access to and be supplied with copies of any documents that will be used against him.

 

The procedure in the instant appeal did not follow any of the above. There is therefore a clear non-compliance with the provisions of (ii), (iii), (x), (xi), (xii), (xiv) of the Civil Service Rules 04107 which applies to Respondent being an officer on GL.09.

 

The question of the observance of the rules of natural justice applies to the 1st appellant who did not hear the Respondent and to who Respondent did not make any representation. It would have been a different matter if 1st appellant called for representation in writing and Respondent had written to him explaining his defence - See Adigun & ors. V. A. -G. of Oyo State (1987)1 N.W.L.R. (Pt.53) 678. The position here was that 1st appellant relied on the representation made to the 2nd appellant, to who he could not have delegated his authority and who had no authority to dismiss the Respondent. Now, it should be stated that 2nd appellant is both the accuser and the investigator of the allegations against the Respondent. It is on his report that 1st appellant acted. In truth the entire disciplinary action was initiated, investigated and determined by the 2nd appellant who appeared to have been a judge in his own cause. Such a situation is intolerable in our concept of justice and clearly a breach of the rules of natural justice - See L.P.D. C. v. Fawehinmi (1985) 2 N.W.L.R. (Pt.7) 300, Aiyetan V. NIFOR (1987) 3 N.W.L.R. (Pt.59) 48 S.C., Olanjyan & ors. V. University of Lagos (1985) 2 N.W.L.R. (Pt.9) 599, Eperokun V. University of Lagos (1986) 4 N.W.L.R. (Pt.34) 162.

 

The learned Hon. Attorney-General submitted before us that the 1st appellant was not obliged to observe the rules of natural justice as he was only required to do substantial justice. I have found it difficult to understand the distinction thereby drawn between observing the rules of natural justice and doing substantial justice. I think, and without apologies for not relying on any decided cases, I can say without fear of contradiction that the rule relating to hearing both sides in a dispute is fundamental to the administration of justice and decision making in all societies irrespective of their level of civilisation or sophistication. Almost every indigenous ethnic group has a saying importing the concept. If what is being done has a semblance of justice, it is elementary that the two sides must be heard first before any determination could be made.

 

In New Nigeria Bank Ltd. V. Obevudiri (1986) 3 N.W.L.R. (Pt.29) p.387, following Adedji V. Police Commission (1967)1 All N.L.R. 67 it was held that -

 

a domestic tribunal like the disciplinary Committee we are dealing with in this case must, in its deliberation over disciplinary action, observe the rules of natural justice, also implied that the party who is subject of the enquiry must know, not only the charge against him but also given adequate opportunity to answer anything that is said against him.....

 

This was the view of Agbaje, J.C.A. (as he then was) now J.S.C. He went on in the judgment to make a declaration which covers the facts of the instant appeal. He said, at p.399

 

It is therefore because the report of the inspector upon which the disciplinary committee acted in taking a decision against the plaintiff was not communicated to the latter, that I hold there had been a breach of rules of natural justice in this case.

 

Similarly as I stated above, the 1st appellant acted on the report made to him by the 2nd appellant. The dictum of the Judicial Committee of the Privy Council in Kanda V. Government of the Federation of Malaya (1962) A.C. 322 at 337 is very appropriate in this situation. Their Lordships said,

 

If the right to be heard is to be a real right which is worth anything, it must carry with it the right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him; and then he must be given a fair opportunity to correct or contradict them.

 

There is no doubt that the Civil Service Commission, the 1st appellant, which is a domestic tribunal with a quasi-judicial jurisdiction is bound to observe the rules of natural justice - See Wilson V. A. -G. Bendel State (1985)1 N.W.L.R. (Pt.4) 572; Exparte, Olakunrin (1985)1 N.W.L.R. (Pt.4) 652.

 

It is well settled that the consequence of a breach of the rules of natural justice is that the decision reached thereby will be set aside - See Adigun V.,A. -V. for Oyo State (1987)1 N.W.L.R. (Pt. 53) 678, Olatunbosun V. NISER (1988) 3 N.W.L.R. (Pt.80) 25, Buzugbe V. Civil Service Commission (1984) 7 S.C. 19.

 

The 1st appellant is a creature of the Constitution and is subject to it, and is thereby bound by the provisions of section 33(1) of the Constitution, 1979 which has incorporated the common law fundamental rule of audi alteram partem.

 

The parties before the Civil Service Commission in this case are the 2nd appellant, Ministry of External Affairs, which has laid a complaint about charges of misconduct against the Respondent, and the Respondent. 1st appellant after hearing from the 2nd appellant including what 2nd appellant presented as the explanation of the Respondent, decided to determine the dispute between the parties without hearing what Respondent has to say about the allegations. 1st appellant, did not therefore try the dispute, having not heard the Respondent. There was no hearing. We cannot therefore talk about a hearing being fair. Both sides have not been heard. Only one side, the 2nd appellant was heard. This is without doubt a violation of section 33(1) of the Constitution, 1979.

 

I have no doubt in my mind that the Court of Appeal was right in dismissing the Appeal of the appellants both on the grounds of non-compliance with the rules of the Civil Service Commission relied upon for the dismissal of the Respondent and for violation of the provisions of section 33(1) of the Constitution.

 

For the reasons I have given above and for the fuller reasons in the lead judgment of my learned brother, Kayode Eso, J.S.C. to which I entirely subscribed, I shall, and hereby dismiss the appeal of the appellants with costs assessed at N500 to the Respondent.

 

 

Judgment delivered by

Kawu,J.S.C.

 

I have had the advantage of reading in draft the lead judgment of my brother, Eso. J.S.C., which has been delivered and I am in complete agreement with his reasoning and also with his conclusion that the appeal is devoid of merit and should be dismissed.

 

There is no doubt whatsoever that in dismissing the Respondent, the 1st appellant based its decision entirely on the allegations contained in Annexures 5 and 6. The Respondent was at the time a Senior Executive Officer (Accounts) on salary Grade 09, and an officer on this grade could only be validly dismissed if the procedure laid down in the Civil Service Rules 1974, was followed. In this case the Respondent was never notified that it was proposed to dismiss him. He was never called upon by the 1st appellant to defend himself against the allegations made against him before he was dismissed. It was indeed a patent violation of the principles of natural justice by the 1st appellant. In the circumstances, I am of the view that the learned trial Judge was right in his decision that the dismissal was null and void, and so was the Court of Appeal in upholding that decision. It is for this reason and for the fuller reasons in the lead judgment of my learned brother, Eso, J.S.C., that I too will dismiss this appeal. I abide by all the consequential orders made in the lead judgment, including the order as to costs.

 

 

Judgment delivered by

Oputa,.J.S.C.

 

I have had the privilege of a preview in draft of the lead judgment just delivered by my noble and learned brother, Eso. J.S.C., and I am in full and complete accord with his reasoning and conclusion. I too will dismiss the appeal.

 

This case is important from many angles. That a lone and solitary civil servant can sue the Federal Civil Service Commission, the Ministry of External Affairs and the Attorney-General of the Federation and win is a healthy sign which shows that in our country the citizen has rights against the State and can successfully press those rights through the Courts. This is democracy in action. The case becomes more significant when we realise that this was under a military government. Ours is a military government with a human, humane and democratic face. Another significant aspect of the case is that the Federal Attorney-General appeared in person. He has always appeared in important cases. I wish the State Attorneys-General will imitate this splendid example. I know of many States where, for years, the Attorneys-General, the Chief Law Officer of the States, have not seen the inside of a law Court. They merely shuttle between the Ministry of Justice and the Cabinet Office. That is not good enough for the growth of the law in those States. Immemorial practice demands that in serious cases the Attorney-General should represent the State and make available to the Court the wealth of his experience all in an attempt to attain justice.

 

On the 27th September, 1988, when the case was listed for hearing, the Attorney-General referred to this Court's decisions in:

 

1.    Bashir Alade Shitta-Bey V. The Federal Public Service Commission (1981)1 S.C. 40.

 

2.    C. J. Olaniyan & Ors. V. University of Lagos & Anor. (1985) 2 N.W.L.R. (Part 9) 599.

 

3.    M. 0. Eperokun & Ors. v. University of Lagos (1986) 4 N.W.L.R. (Part 34)162.

 

4.    Garba and ors. v. The University of Maiduguri (1986)1 N.W.L.R. (Part 18) 550.1

 

5.    Saidu Garba v. Federal Civil Service Commission (1988)1 N.W.L.R. (Part 71) 449.

 

and then added that '~in matters of employees of government functionaries there appears to be a gradual crystallisation of the concept that these employees acquired a distinct status over and above their master and servant relationship and a tendency to find for the employee against the public institutions that employed them." The Attorney-General then added "I want to make an inroad into the alleged status thus created." The Court took this as an indication that the Attorney-General was going to ask the Court to over-rule its earlier decisions referred to above.

 

This Court does not show any antipathy towards any submission that its previous decision or decisions were wrong and should be over-ruled. In fact, the Court welcomes any opportunity to review any decisions given per incuriam. It is far better to admit an established mistake or and correct same rather than persevere in error. Justices of the Supreme Court are human-beings capable of erring. It will be short-sighted arrogance not to accept this obvious truth. In Adigun V. Attorney-General of Oyo State (No.2) (1987)2 N. W.L.R. (Part 56) 197 at pp.214/215 appears a statement that:

 

The decision of the Supreme Court is final. . . It is final for ever, except there is a legislation ad hominem . The Supreme Court is under our Constitution a super Court deliberately meant and made to be so by the organic law . ..

 

The above dictum by my noble and learned brother, Eso, J.S.C. should not be read out of its proper context. All it amounts to is saying that we are not final because we are infallible rather we are infallible because we are final. The Court cannot be asked to over-rule itself in the same case but it definitely can and had been asked to over-rule its previous decision in a subsequent and entirely different case. Thus in Oduye V. Nigeria Airways Ltd. (1987) 2 N.W.L.R. (Part 55)126 Chief Williams, S.A.N., did ask the court to overrule four of its previous decisions namely:

 

1.    Akpiri V. West African Airways Corporation 14 W.A.C.A. 195.

 

2.    Sobamowo V. Federal Public Trustees (1970)1 All N.L.R. 257.

 

3.   Akinosho V. Enigbokan ~195~ S.C.N.L.R. 9.

 

4.    Sule V. Nigerian Cotton Board (1985) 2 N.W.L.R. (Part 5)17.

 

His application was entertained, carefully considered but gracefully rejected. The Supreme Court does have the power in appropriate circumstances to overturn its earlier decisions if clearly satisfied that these decisions were wrong. This involves a balancing of the need for certainty in the law and the need not to persevere in error:- Eperokun V. University of Lagos (1986) 4 N.W.L.R. (Part 34)162 at p.193. The Court therefore welcomed the Attorney-General's suggestion that he "intends to make an inroad into the rationes decidendi of the four cases listed earlier on in this judgment. The hearing of the appeal was therefore adjourned to enable the Chief Justice of Nigeria empanel a Full or Constitutional Court to deal with the Attorney-General's submission. This was done and the hearing of the appeal continued on the 24th January, 1989.

 

Before dealing with these submissions, I will like to dispose of what the Attorney-General described as "the trend of the Court to favour individual litigants against public institutions." To buttress his argument, he referred to a dictum of this Court in Godwin Josiah V. The State (1985)1 S.C. 406 at pp.446/ 447; (1985)1 N.W.L.R. (Part 1)125 at p. 141 paras G-H. Yes, justice has never been a one way traffic. It has never been justice for government functionaries only. Justice has two scales and the case of either party is put in one or other of the scales and weighed. Justice is also depicted as blind. It neither sees nor recognises who is a government functionary and who is not. It is not a respecter of persons or institutions, no matter how highly placed these are. One aspect of our much vaunted equality before the law is that all litigants, be they private persons or government functionaries, approach the seat of justice openly and without any inhibitions or handicap. Each wins solely and who lly by, and because of, the strength of his case - its weight on the scale of justice. It is the duty of the Courts to safeguard the rights and liberties of the individual and to protect him from any abuse or misuse of p ower or what my learned brother, Eso, J.S.C., in Governor of Lagos State V. Ojukwu (1986) 1 N.W.L.R. (Part 18) 621 at p.634 described as "executive lawlessness." Executive functionaries ought to abide by the terms of the contracts which they themselves made with their employees. When the Court is described as the last hope of the common-man that implies that it is the duty of the judiciary (a duty which it owes to the course of justice) to ensure that any encroachment on the rights of the individual, any coercive action is justified by law. In the unequal combat between those who possess power and those on whom such power bears, the Court's primary duty is protection from the abuse of power. In all the 4 cases listed earlier on for probable review, that has been the stance of this Court and I dare say it is a noble stance, the correct stance.

 

The Full Court empanelled pursuant to the indication given by the Attorney-General on the 27th September, 1988, sat on the 24th January, 1989. On that day the Attorney-General made the following general observation and submissions:

 

I concede that I am facing an uphill task in trying to persuade the Court to overturn the judgments of the two Courts below which made concurrent findings of fact. I will also be asking the Court to look again at Shitta-Bey, Olaniyan, Eperokun and Garba. The courage I have is that they are a string of authorities to persuade the Court to do substantial justice

 

Question by Court    - Do you want us to over-rule these authorities?

Answer -                     - Yes, both over-rule and distinguish.

Question by Court    - Question by Court - Which, over-rule or distinguish. The Court cannot do both?

Answer                        - I now concede that it will not be easy to over-rule. I will only attempt to distinguish.

 

The above is a fair representation of the dialogue that ensued between the Court and the Attorney-General. The factual situation now appears to be as follows:

 

i.      There are concurrent findings of fact made by the two Courts below against the appellants. And there is the policy of this Court not to disturb such concurrent findings unless those findings were perverse or there was substantial error of law or procedure amounting to a mis-carriage of justice.

 

ii.    The Courts below relied on the four decisions which the Attorney-General now concedes he is not asking the Court to over-rule. This means that the principle decided in those cases were correctly applied to the facts of this case by the two Courts below. It also means that this Court will itself apply those principles in this case unless it is shown that the facts of this case and the facts of those cases were not similar for the maxim - De similibus idem est judicium (in like cases the judgment is the same) will not apply.

 

iii.    To distinguish means to point out an essential difference - the difference has to be essential - which will then plainly show that these four cases cited to us and relied upon by the two Courts below are inapplicable.

 

One has now got to look closely and critically at the facts of the present case and compare them with the facts that framed the issues in the four former decisions of this Court relied upon by the two Courts below as decisions draw their inspiration and their strength from the facts in issue. And I do not see that either in his Amended Brief of Argument or in his oral submissions in Open Court the learned Attorney-General took the time to compare and contrast and thus distinguish the facts of this case from the facts of Shitta-Bey, Olanjyan, Eperokun or Garba (supra).

 

But what were the facts of Laoye's case now on appeal? They are as follows:-

 

1.    That the Plaintiff/Respondent was a civil servant employed in September, 1964 and continued to work in the Federal Civil Service until he was dismissed on 21st July, 1981.

 

2.    That having served from 1964 to 1981, the plaintiff acquired the status of an officer on the pensionable cadre.

 

3.    That the plaintiff was posted to the Nigerian Consulate-General, New York in 1973 where he worked until 1977 as a Senior Executive Officer.

 

4.    That when the plaintiff returned to Lagos, in 1978 he was interrogated by the Police to whom he made a statement. (Was there a criminal case in the offing?)

 

5.    That instead of charging the plaintiff to Court for any offence or offences disclosed by the above Police investigations, the Ministry of External Affairs issued him two queries sub nomen "Preliminary Letters" tendered as Ex.B and Ex.B1.

 

6.    Exhibit B dated 17th May, 1978 charged the plaintiff with colluding with some people including certain persons in the Flying Aces Aviation Training Centre to defraud the Government of Nigeria of U.S. $119,000 and of unlawfully receiving commissions totalling U.S. $10,000 through Mr. E. E. Akwara, External Affairs Officer Grade VI.

 

7.    That the plaintiff, on 22nd May, 1978, wrote his Reply to Ex.B. He categorically denied all the charges levelled against him in Ex.B and added "It is very easy to prove the final beneficiary of the two cheques. . . . Mr. Akwara is still in the service he can be called to testify. . . ." This letter was tendered as Ex.C.

 

8.    On the 28th September, 1978, the Ministry of External Affairs issued to the plaintiff another "Preliminary Letter" tendered as Ex.B1 asking for "any explanations which you may have for receiving and endorsing these cheques each for the sum of U.S. $5,000.00 (a total of U.S. $10,000.00), said to be certain commission received by you.

 

9.    The plaintiff replied to Ex.B1 above on the 9th October, 1978 saying inter alia - "These cheques . . . were sent to Mrs. Akwara (Nee Lanval) by the father. Mrs. Akwara. . . was hospitalised for a Caesarian operation at the time and she could not go to the bank to cash them. The husband, Mr. E. E. Akwara, therefore needed a sort of identification to be able to cash the money on behalf of his wife. He brought them to me and I endorsed the cheques for him. The cheques were for his wife and she duly signed them at the back. The words "Pay to the order of J. O. Laoye" must have been written after my simple endorsement just to be cancelled afterwards. The fact that my name was cancelled by the payee shows that no Bank will ever pay the money to me." The plaintiffs reply was tendered as Ex.C1.

 

10.    Following Exs.B and Bi written by the Ministry of External Affairs and the plaintiffs replies thereto (tendered as Exs.C and Cl) then quite out of the blue, appeared a letter from the Federal Civil Service Commission dated 21st July, 1981, tendered as Ex.A dismissing the plaintiff from the service of the Federal Government with effect from 9th July, 1981.

 

These are the facts that sparked off the present litigation.

 

On receiving Ex.A, the plaintiff sued the 3 Defendants/appellants claiming as follows:

 

(a)    A declaration that his purported dismissal from the employment of the Federal Civil Service Commission by letter dated July 21st 1981 is null, void and of no effect.

 

(b)   A declaration that he is still in the employment of the Federal Ministry of External Affairs.

 

(c)   An order directing the 1st Defendant to reinstate the plaintiff to his status as a Civil Servant without prejudice to entitlements and promotions which might have accrued to him during the period of his dismissal.

 

After due hearing in which the plaintiff gave evidence and none of the Defendants testfied, Adeniji, J., found for the plaintiff, granted him the two declarations he sought, ordered the 1st Defendant to reinstate the plaintiff without prejudice to his entitlements and promotions and finally issued an injunction "restraining the 1st Defendant, his servants and agents, etc. from further interfering with the plaintiff's performance of his duties as a civil servant." In his judgment, Adeniji, J., held inter alia.

 

It seems to me very necessary that there should be such inquiry as the Civil Service Rules prescribed and such right to be heard in defence as the principles of natural justice prescribe. The Federal Civil Service Commission being a creation of statute must be guided by the Law and its own regulations.

 

The above are distant echoes from Shitta-Bey, and distinct echoes from Olanjyan, Eperokun and Garba supra.

 

The Defendants appealed to the Court of Appeal, Lagos Division coram Ademola, Mohammed and Kolawole, JJ.C.A. That Court by a unanimous verdict dismissed the Defendant's appeal. Uthman Mohammed, J.C.A.,in his lead judgment observed inter alia:

 

It is a fact as shown from the record that the Respondent had been queried by the Ministry of External Affairs on the allegations made against him and that he answered the queries. However, the Ministry of External Affairs is not the body responsible to discipline the Officer. It is the duty of the Civil Service Commission, the 1st appellant to do so. The Civil Service Rules, 1974 provide for the submission of serious allegations of misconduct concerning senior public officers to the 1st appellant............ which shall conduct disciplinary proceedings in the manner of a mini trial ...... The procedure followed by the Civil Service Commission is a clear violation of the principle of natural justice.

 

The above comments made on 10th June, 1987 was a fitting anticipation of the decision of the Supreme Court in Professor Olatunbosun V. Nigerian Institute of Social and Economic Research Council (1988) 3 N.W.L.R. (Part 80) 25 at pp.51/52 delivered exactly one year after, on the 10th June, 1988 that hearing by one body followed by a "judgment" delivered by another body (i.e. dismissal) does not constitute a fair hearing.

 

Ademola, J.C.A., base his concurring judgment solely on Garba's case (supra) for said he:-

 

...........the allegations of misconduct alleged against the Respondent sounded as offences against the criminal law. That being so, it could have been better for the ordinary Court of the land to make a pronouncement on the guilt of the Respondent and not a tribunal as it was done in this case.

 

Kolawole, Kolawole, J .C.A., ended his concurring judgment thus:-

 

In my judgment, if there was a trial of the Respondent, it was in camera against all the rules of natural justice; such a hearing is void, it cannot be allowed to stand.

 

The Defendants/appellants having lost in the two lower Courts have now appealed to this Court. Both sides have filed their respective Briefs and addressed the Court in amplification and elaboration of the points and issues highlighted in their Briefs. There is practically nothing new in this appeal that has not been fully agitated and decided in the many cases which the learned Attorney-General at first wanted the Court to review. When however he withdrew that invitation, he found himself in a rather very tight corner indeed. He then thought of distinguishing the facts of this case from the facts of the other cases. I am not at all sure that he succeeded in doing this.

 

I will not like to deal with Issue No.1 as formulated in the appellant's Brief viz:-

 

(1)    Whether the decision in Garba V. University of Maiduguri (1986)1 N.W.L.R. (Part 18) 550 applies in this case even though there was an allegation of misconduct which would appear to be a crime in issue.

 

In his oral submission, the learned Attorney-General argued that in this case "prosecution may not serve the ends of justice." He then urged the Court to hold that it is not in all cases where misconduct amounts to a crime that the Court should insist on prosecution. The learned Attorney-General then asked the Court "to over-rule this part of its decision in Garba's case." In Yesufu Garba (supra) this Court held that when there is an allegation of a criminal offence, the jurisdiction of the Visitor or Vice-Chancellor is ousted. Obaseki, J.S.C, in his lead judgment in Garba's case summed up the position beautifully thus:-

 

It should be observed and noted that students in our Universities and institutions of higher learning are not above the law of the land and where obvious cases of breaches of our criminal and penal laws have taken place the authorities of the University are not empowered to treat the matter as an internal affair . . . Without subjecting any criminal allegation against any student to the machinery provided by the State for ascertaining the truth of the allegation, a very painful denial of fundamental right is inflicted on the student howbeit laudable or sympathetic the intention of the authorities might be. Mistakes do occur. An innocent student might in such circumstances suffer undeserved punishment. . . the pronouncement of guilt from the current of unsifted, unattested and undistilled mass of evidence. . . will do more harm than good to the integrity of the student.

 

We operate a system which presumes a man innocent until he is proved guilty. Our system arrogates to the Court the burdensome duty of pronouncing this guilt, after proof of such guilt in open Court, where the facts are subjected to the acid test of effective cross-examination. To do otherwise will constitute an unwarranted attack on our system of criminal justice. The learned Attorney-General here cited and relied on my dictum in Godwin Josiah V. The State (1985)1 N.W.L.R. (Part 1)125 at p.141:-

 

And justice is not a one way traffic. . . . It is really a three way traffic -justice for the appellant accused of a heinous crime. . . justice for the victim . . . and finally justice for the society at large.

 

I then added:-

 

It is certainly in the interest of justice that the truth of this case should be known and that if the appellant is properly tried and found guilty that he should be punished . . .

 

I will venture to say the very same thing in this case. The Plaintiff/Respondent has been accused of very serious offences of conspiracy, defrauding the Government of this country and stealing U.S.$119,000.00 - very large sum of hard currency. It is in the interest of justice that the truth of the entire transaction be known and that he and all the culprits should be brought to justice and if the plaintiff really committed the offences charged that he should be imprisoned. After conviction or during or after serving his sentence, the 1st Defendant could then dismiss him. That is justice. What was done in this case - sending the appellant "Preliminary Letters" Exs. B and Bi and eliciting his replies, Exs.C and Cl, is to say the least a mockery of justice or was there a cover-up and the Plaintiff/Respondent offered up as a convenient sacrificial lamb? That is the intriguing question. The only answer to this embarrassing question could have been open trial in open Court. It is still true that the Court is the temple of justice, and the objective is the attainment of justice. Now justice is only reached through the ascertainment of the truth and the instrument which our law presents to us for the ascertainment of the truth or falsehood of a criminous charge is trial in open Court.

 

Yesufu Garba's case supra merely decided and highlighted the obvious -that when any one is accused of a criminal offence, he should, in his own interest and in the interest of truth and justice, be tried by the ordinary Courts of the land. No hush hush inquiry will take the place of open trial. The right to fair hearing comprehends and includes the right to be heard in open Court in defence of one's character and good name, when accused of misconduct amounting to a criminal offence. This right was accorded to Kayode Adams (1966) N.M.L.R. 111 and also to the name-sake of the present plaintiff' Respondent, Albert Lao ye (1985) 2 N.W.L.R. (Part 10) 832.1 agree that the two cases above involved unlawful attempt to kill or killing but the principle should be the same when a criminous charge forms the basis of any disciplinary action. In the case now on appeal, the Police did interview the plaintiff and he made a statement to them. Why was the Police investigation nipped in the bud? There was a suggestion in the cross-examination of the plaintiff that the New York Police also investigated the allegations. What were the findings of the Police? We are not told. But sometimes what is suppressed - dumb, dumb mouths - speak louder than what is expressed.

 

Yesufu Garba's case (supra) did not propound a new theory. No. All along it had been part of our law that when a misconduct which a Disciplinary Board or Panel is investigating also amounts to a criminal offence, the proper course is to refer the matter to the Police for full investigation and prosecution in a Court of law. In Dr. E. 0. A. Denloye V. Medical & Dental Practitioners Disciplinary Committee (1968)1 All N.L.R. 306 at p.312, the Supreme Court deprecated the action of the Committee in converting itself into a Court of law and held that

 

"where the professional conduct of a practitioner amounts to a crime, it is a matter for the Courts to deal with and one he Court has found a practitioner guilty of an offence, if it comes within the type of cases referred to in Section 13(1)(b) then the Tribunal may proceed to deal with him under the Act."

 

The same principle ought to have been applied in this case. After the criminal prosecution, the Federal Civil Service Commission would have then dealt with the Plaintift/Respondent under the Civil Service Rules. But perhaps the case that forcibly brought out the wisdom of conducting the criminal investigation and prosecution before going on with any consequential breach of disciplinary Rules of the Civil Service is the case of Dr. 0 G. Sofekun V. Chief N. 0. A. Akinyemi (1981)1 N.C.L.R. 135; (1980) 5 and 7 S.C.1 at pp.25/26 where this Court held that "once a person is accused of a criminal offence, he must first be tried in a Court of law where the complaints of his accusers can be ventilated in public and where he would be sure of getting a fair hearing as set out in Sub-section (4)-(10) of Section 22 of the 1963 Constitution." No other Tribunal, Investigating Panel or Commission will do. Aniagolu, J.S.C., in his own contribution brought out the point being made rather succinctly thus:

 

It is essential in a constitutional democracy, such as we have in our country, that for the protection of the rights of the citizen, for the guarantee of the Rule of Law which includes according fair trial to the citizen under procedural regularity and, for checking arbitrary use of power by the Executive or its agencies, the power and jurisdiction of the Courts under the Constitution must not only be kept in tact and unfettered but also must not be nibbled at. To permit any interference with, or usurpation of, the authority of the Courts, as aforestated, is to strike at the bulwark which the Constitution gives and guarantees to the citizen, of fairness to him, against all arbitrariness and oppression. Indeed, so important is this preservation of, and non-interference with, the jurisdiction of the Courts that our present Constitution (Decree No.25 of 1978) has specifically provided (see 5.4(8)) that neither the National Assembly nor a House of Assembly shall "enact any law that ousts or purports to oust the jurisdiction of a Court of law or a judicial tribunal established by law . . . . .. . . . . .

 

The jurisdiction of the ordinary Courts to try any allegation of crime is a radical and fundamental tenet of the Rule of Law and the cornerstone of democracy. If the Executive branch is allowed to operate through Tribunals and Executive Investigation Panels that surely will be a very dangerous development. This Court cannot be a party to such dangerous innovation. It is only when one is on the receiving end that he can fully appreciate the wisdom in the aspect of Yesufu Garba's decision that the learned Attorney-General now wants the Court to over-rule. Rather than over-rule Garba's case the Court ought to strengthen and fortify it. Issue No.1 as formulated in the appellants' Brief therefore fails.

 

Although on Issue No.1 the principle of the decision in Yesufu Garba's case - this appeal is bound to founder yet it may be necessary to consider what the learned Attorney-General himself described as "an alarming submission" that is to say that the 1974 Civil Service Rules made under the 1963 Constitution are not extant but extinct. His argument was that in 1979 a new Constitution came into being and terminated the life of the 1963 Constitution and other enactment and subsidiary legislations and Rules made under it. The 1979 Constitution in its Section 140(1)(b) established a Federal Civil Service Commission which did not make the Civil Service Rules now relied upon. The Plaintiff/Respondent was dismissed in 1981 when the Civil Service Rules made pursuant to the 1963 Constitution were no longer in force so the argument went. This is really "an alarming submission."

 

The government of any country is or should be a continuing process. Even when and where a new Constitution has been promulgated, special provisions are usually made to preserve continuity. A new Constitution does not create a tabula rasa. It normally makes a provision to cover, protect and preserve existing laws, offices and institutions. The 1979 Constitution did exactly that in its Sections 274 and 275. By Section 274(4)(b) "existing law" means:-

 

any law and includes any rule of law, any enactment or instrument whatsoever which is in force immediately before the date when this Section comes into force or which having been passed or made before that date comes into force after that date.

 

Obviously, the Civil Service Rules admittedly were Rules made under the 1963 Constitution but they were unquestionably Rules "which were in force immediately before the date when this Section (S.274(4)(b) of the 1979 Constitution) came into force." These Rules were definitely saved. Akin to existing laws that were saved by Section 274 of the 1979 Constitution are existing offices like the Public Service Commission. Our Courts have dealt with these. In Ekeocha v. The Civil Service Commission, Imo State (1981)1 N.C.L.R. 154, the Imo State High Court, per Oputa, C.J. (as he then was) held inter alia that:-

 

(i)    The purpose of Section 275 of the 1979 Constitution is to save existing offices, Courts, and authorities and such offices, Courts and authorities cannot be legislated against.

 

(ii)    Former office holders in the Public Service Commission are now deemed to have been appointed to the State Civil Service Commission and they are therefore expressly excepted from having their appointments made by the Governor and approved by the State House of Assembly.

 

(iii)    Section 275 is designed to preserve vested rights.

 

In the Bendel State of Nigeria, almost at the very same time (in fact in very same month June, 1980) Uwaifo, J. (as he then was) interpreted Section 275 of the present Constitution in Igbe v. Governor Bendel State - Anor. (1981)1 N.C.L.R. 183 in identical terms for he held inter alia:

 

By virtue of Section 275(1) and (2) of the 1979 Constitution which provides for continuity of offices held prior to the coming into effect of the Constitution and Section 180(1)(b) in particular of the 1979 Constitution which ensures that a person who is a member of the Commission by virtue of his having previously held office (like the plaintiff here) shall continue for the duration of his office, the Public Service Commission passed through to the 1st of October, 1979 together with its members and the plaintiff as such member, as if it was duly established and its members duly appointed under the 1979 Constitution. The 1963 Constitution and its provisions governing the Commission are also effective to date as an existing law by virtue of Section 274 of the Constitution subject to any inconsistencies between it and the 1979 Constitution, in which case the provision of the latter would over-ride having been declared supreme in Section 1(3).

 

Uwaifo, J. (as he then was) held that there was continuity of office between the Public Service Commission created by the 1963 Constitution and the Civil Service Commission created by the 1979 Constitution. I will here add that both judgments - in Imo and Bendel States imply the Civil Service Commissions will continue to use the very same Civil Service Rules which they used as Public Service Commissions until new Rules are made under the 1979 Constitution.

 

The views held in Ekeocha and Igbe (sup ra) were confirmed and approved by the Supreme Court in Samuel Igbe V. The Governor of Bendel State & Anor. (1983)1 S.C.N.L.R. 73. There, Fatayi Williams, C.J.N. at p.86, paras C to E~ made the following relevant and significant comments:

 

I would like to indicate my support for the views put forward by Chief Williams that the provisions of Section 274 of the Constitution not only make adequate provisions for legislative action required to effect a smooth transition from the old constitutional order to the new order, they also enable continuity of public offices existing before 1st October, 1979....

 

One cannot have continuity in the office of the Public Service Commission from the 1963 Constitution into the 1979 Constitution and close one's eyes to the Civil Service Rules which the former Commission operated in the absence of any new post 1979 Rules. It is here that Section 274(4)(b) comes in to preserve the existing Rules. I therefore hold that the Civil Service Rules made under the 1963 Constitution will now be deemed to have been made under the 1979 Constitution and will continue to be constitutional and valid until set aside and replaced by new Rules. The dismissal of the Plaintiff/Respondent will therefore have to be justified under the then and now existing Civil Service Rules.

 

I will now consider Issue No.2 as formulated in the Brief of the Defendants/Appellants, viz:

 

(ii)    Whether the dismissal of the Respondent, having regard to all the surrounding circumstances, was in accordance with the provisions of the Federal Civil Service Rules.

 

These Rules were not made by the plaintiff/Respondent. No. They were made by a Government, the functionaries of which are the Defendants/appellants. To avoid "executive lawlessness" these Rules must have to be strictly complied with by the appellants. They will also have to be strictly construed against the appellants. On this issue, the learned Attorney-General submitted that the 1st Defendant/appellant - The Federal Civil Service Commission, complied with the Rules. He did not stop there. He added that "if it failed to comply with the Rules that non-compliance is not fatal to its decision to dismiss the plaintiff/Respondent." The learned Attorney-General then referred the Court to pp. 72/73 of the records of proceedings and pointed out that the Courts below "merged Rule 04106 with Rules 04107 and 04108." During his oral submission, the learned Attorney-General conceded that the Respondent not being on contract cannot be proceeded against under Rule 04108 which deals specifically with "Dismissal of officers on contract." Also the plaintiff being a pensionable officer and having been dismissed for serious misconduct as shown in the "Preliminary Letters" Exhs. B and Bi, the relevant Rule under which the 1st Defendant/appellant could act will be Rule 04107. The only mix up appears in the Schedule to Rule 04104(e) stipulating thus:

 

(e)    Disciplinary proceedings shall be conducted in accordance with the provisions of the Rules quoted in the following table:

 

A.

Officers holding Senior Posts on the Pensionable establishment

No Delegation

Dismissal

04108*

04109

04113

B.

Officers holding Senior Appointments on agreement, probation or contract

04107*

 

         From the Rules themselves, 04107 deals exclusively with "Dismissal of Pensionable Officers" while Rule 04108 deals with "Dismissal of officers on contract or month to month terms, etc." There is an obvious mistake maybe a typographical error in inserting 04108 in Schedule A above and 04107 in Schedule B. Schedule A should have 04107 and Schedule B 04108. Schedules, tables and forms are useful in construing the provisions in the body of a statute. In cases of ambiguity, they become useful handmaid to interpretation. But they will not over-rule the plain words of the statute. If there is any contradiction, the enacting clause will prevail. It would be quite contrary to recognised principles of construction of statutes to restrain the operation of clear and unambiguous words or sections by reference to what appears in a schedule, table or form: Dean v. Green (1882) 8 P.D. 79 at p.89 per Lord Penzance; R v. Baines (1840)12 A & E, 210 at p~ 226 per Lord Denman. Now the Federal Civil Service Rule applicable to the plaintiff/Respondent - Rule 04107 - provides as follows:-

 

 

SERIOUS MISCONDUCT

 

04107 -    The term "officer" in this Rule                                                    Dismissal of

refers to all officers in the                                                            Pensionable

Public Service except the following:                                          Officers

 

(a)    officers on contract or month-to-month terms;

 

(b)    unestablished staff, and

 

(c)    non-pensionable staff, etc.

 

 

An officer in the Federal Public Service may be dismissed by the Federal Public Service Commission only in accordance with the following rules unless the method of dismissal is otherwise provided for in these Civil Service Rules:-

 

(i)    The officer shall be notified in writing of the grounds on which it is proposed to dismiss him, and he shall be called upon to state in writing, before a day to be specified (which day must allow a reasonable interval for the purpose) any grounds upon which he relies to exculpate himself.

 

(ii)    The matter shall be investigated by the appropriate authority with the aid of the Head of the officer's Department, and such other officer or officers as the appropriate authority may appoint.

 

(iii)   If any witnesses are called to give evidence, the officer shall be entitled to be present and to put questions to the witnesses.

 

(iv)   No documentary evidence shall be used against the officer unless he has previously been supplied with a copy thereof or given access thereto.

 

(v)    If the officer does not furnish any representations within the time fixed, the Federal Public Service Commission may take such action as it deems appropriate against him.

 

(vi)   If the officer submits his representations and the Commission is not satisfied that he has exculpated himself, and considers that the office should be dismissed, it shall take such action accordingly.

 

(vii) If upon considering the representations of the officer the Commission is of the opinion that the officer does not deserve to be dismissed from the Service but deserves some other punishment, it shall impose on the officer such punishment as it considers appropriate.

 

(viii) If upon considering the representations of the officer the Commission is of the opinion that the officer does not deserve to be dismissed but that the facts of the case disclose grounds of requiring him to retire in accordance with Rule 04114 it shall direct accordingly.

 

(ix)    In exceptional cases, if upon considering the officer's representations the Commission is of the opinion that the case against the officer needs further clarification, it shall appoint a Committee to enquire into the matter. The Committee shall consist of not less than three persons, one of whom will be appointed Chairman by the Commission. The members of the Committee shall be selected with due regard to the standing of the officer concerned, and to the nature of the complaints which are the subject of the inquiry. The Head of the officer's Department shall not be a member of the Committee.

 

(x)    The officer shall be informed that on a specific day, the question of his dismissal shall be brought before the Committee and that he shall be required to appear before it and defend himself and shall be entitled to call witnesses. His failure to appear shall not invalidate the proceedings of the Committee.

 

(xi)    If witnesses are examined by the Committee, the officer shall be given an opportunity of being present and of putting questions to the witnesses on his own behalf, and no documentary evidence shall be used against him unless he has previously been supplied with a copy thereof or given access thereto.

 

(xii)  In exceptional cases, the Committee may, in its discretion, permit the officer to be represented by a solicitor or counsel, provided that where the Committee permits the officer to be represented by Counsel, the government shall similarly be represented by a counsel.

 

(xiii) If during the course of the inquiry further grounds for dismissal are disclosed, and the Federal Public Service Commission thinks fit to proceed against the officer upon such grounds, the officer shall by the direction of the Commission be furnished with a written statement thereof and the same steps shall be taken as are above prescribed in respect of the original grounds.

 

(xiv) The Committee having inquired into the matter shall make a report to the Commission which, if it considers that the report should be amplified in any respect or that further enquiry is desirable, may refer any matter back to the Committee for further inquiry or report accordingly. The Commission shall not itself hear witnesses.

 

(xv) If upon considering the report of the Committee together with a copy of the evidence and of all material documents relating to the case, the Commission is of the opinion that the officer should be dismissed, such action shall immediately be taken.

 

(xvi) If the Federal Public Service Commission does not approve the officer's dismissal, and does not consider that any penalty should be imposed, the officer shall be reinstated forthwith and shall be entitled to the full amount of salary denied him if he was interdicted.

 

(xvii) If the Commission considers that the officer deserves some punishment but not dismissal, it shall apply such penalty as it deems appropriate.

 

(xviii) If upon considering the report of the Committee, the Commission is of the opinion that the officer does not deserve to be dismissed but that the proceedings disclose grounds for requiring him to retire, the Commission shall, without further proceedings, direct accordingly.

 

According to Rule 04102, the power to dismiss is vested in the Federal Civil Service Commission, the 1st Defendant/appellant. The only part played by the 1st Defendant in this dismal episode was the issuance of the dismissal letter, Exh.A. The 1st Defendant did not comply with Rule 04107 sub-rules (i), (ii), (vi), (vii), (xvi) and (xvii) in that the Commission did not notify the Respondent of the grounds on which it was proposed to dismiss him. This is more so as under Schedule A, the Commission is not allowed to delegate its functions. The "Preliminary Letters" Ex.B and Bi were not issued by the Commission. They should have been issued by the Commission and not by the Ministry of External Affairs. Apart from Exhs B and B 1, which the Commission did not issue, what other investigation, one may ask, did the Federal Civil Service Commission conduct in compliance with Rule 04107 sub-rule (ii) and sub rule (vii)? None at all. How then did the Commission come to the decision to dismiss the Respondent? Is it by acting on the "hearing" granted the Respondent by the Ministry of External Affairs per Exhs. B and Bi replied to in Exhs.C and Cl? Fair hearing will certainly imply that the body that heard will be the same body that will consider all representations made, and then come to a decision. This Court established that principle in Olatunbosun V. NISER Council (supra) where the old NISER Council heard the plaintiff and another Council, the new NISER Council dismissed him. The Court held that this was wrong.

 

The 1st Defendant is a creature of Statute and for its dismissal of the ReasJ~ ndent to be intra vires, it has to comply strictly with all the Rules (it governing the dismissal of its staff- here the Federal Civil Service Rule 04107. Failure to do that renders the dismissal ultra vires, null and void. This is the main plank of this Court's decision in Olanjyan V. The University of Lagos (supra) Lagos (supra) as well as Eperokun V. University ofLagos (supra). Since ShittaBey's case (supra), officers in the pensionable cadre of our Civil Service whose terms and conditions of service are governed by the Civil Service Rules made under the Constitution, and therefore having a constitutional flavour, acquired a distinct status which places their employment over and above the common law relationship of master and servant and introduced in these relationships the vires element of administrative law.

 

Maybe I rather say a few words about Section 33(2) of the 1979 Constitution which the learned Attorney-General referred to in an attempt to show that the Constitutional provision for fair hearing had not been breached. That Section stipulates: -

 

33-2 Without prejudice to the foregoing provisions of this Section, a law shall not be invalidated by reason only that it confers on any government or authority power to determine questions arising in the administration of law that affects or may affect the civil rights and obligation of any person if such law -

 

(a)   provides for an opportunity for the person whose rights and obligations may be affected to make representations to the administering authority before that administering authority makes the decision affecting that person;

 

(b)   contains no provision making the determination of the administering authority final and conclusive (the italics are mine to emphasise the import and purport of S.33(2) above).

 

My simple answer to S.33(2) above is that rather than aid the learned Attorney-General, it pleads eloquently for the plaintiff/Respondent. For one thing, the plaintiff has not asked and is not asking for the invalidation of any law so then the sting of S.33(2) above is just not there. Secondly, proviso (a) above takes for granted that an opportunity is given to the person who may be affected (here the plaintiff/Respondent) to make representations to the "the administering authority" (here the 1st Defendant, the Federal Civil Service Commission) before "that administering authority makes the decision affecting that person" (here the decision to dismiss the plaintiff/Respondent). As I have shown earlier on in this judgment, the plaintiff was not given any opportunity to make any representation to the Federal Civil Service Commission. All the representations he made in Exhs.C and Cl were made to the Ministry of External Affairs. It was the Commission that took the decision to dismiss the plaintiff/Respondent - see Exh.A. That decision was taken without any representation to the Commission. One then wonders on what the "administering authority" - the Commission - made the decision to dismiss the plaintiff? On representations not made to it as required by S.33(2) above but to an entirely different body here the Ministry of External Affairs? There was thus an undiluted and flagrant breach of S.33(2) of the 1979 Constitution. The action of the Commission cannot therefore be justified under S.33(2) above.

 

In the final result and for all the reasons given above and for the fuller reasons in the lead judgment of my noble and learned brother, Eso, J.S.C., which I now adopt as mine, I, too, will dismiss this appeal. The appeal is accordingly dismissed. I will abide by all the consequential orders in the lead judgment.

 

 

Judgment delivered by

Agbaje,J.S.C.

 

I have had the opportunity of reading in draft the lead judgment of my learned brother, Kayode Eso, J.S.C. I entirely agree with his reasoning and conclusions.

 

The facts leading up to the claims of the plaintiff, J. 0. Laoye, against the Defendants, Federal Civil Service Commission, Ministry of External Affairs and the Attorney-General of the Federation, have been admirably set down in the lead judgment. In a nutshell, they are as follows. At all times material to this case the plaintiff was a member of the staff of the 2nd Defendant, the Ministry of External Affairs. In 1978 whilst the plaintiff was serving in Lagos the 2nd Defendant by a letter dated 17/5/78 addressed and delivered to the plaintiff accused him of a very serious misconduct during the period he served in the Consular-General of Nigeria in New York. The substance of the accusation was that he conspired, in the manner stated in the letter, with certain persons, referred to in the letter, to defraud the Government of Nigeria of the sum of U.S. $119,000.00 out of which the plaintiff received as his commission, $10,000.00 paid to him by two cheques of $5,000.00 each. In the letter, the plaintiff was asked to submit any representations he might have which would show ~why disciplinary action which include a report to the Federal Public Service Commission should not be taken against him.

 

By a letter dated 23rd May, 1978, the plaintiff replied the letter of 17/5/78 and in his reply he denied the allegations against him. Upon receipt of this reply, the 2nd Defendant wrote to the plaintiff on 28/9/78. Attached to the letter were photo-copies of the two cheques which according to the 2nd Defendant, the plaintiff got and paid into his account as his commission on the fraudulent act referred to in the letter of 17/5/78. Again by a letter of 9/10/78 from him to the 2nd Defendant, the plaintiff denied ever receiving both cheques or either of them, let alone paying either of them into his bank account. The upshot of both queries of the 2nd Defendant to the plaintiff and the latter's replies to them was the letter of the 1st Defendant to the plaintiff of 21st July, 1981. The letter read thus:-

 

Mr. J. 0. Laoye,

S.E.O. (Accounts)

u.f.s. The Permanent Secretary, Ministry of External Affairs, Administration Department, Lagos.

 

This Commission has given very careful consideration to your representations dated 22nd May, 1978, 9th October, 1978, and 18th January, 1979 respectively, which you submitted in reply to the Ministry of External Affairs letters numbers 3IAa.2391T of 17th May, 1978, 3/Aa.2391 of 28th September, 1978, and 3/Aa.2391 of 4th January, 1979 respectively, together with all the attachments but considers that you have not exculpated yourself from the charges made against you in the said letters. It has directed therefore that you be, and you are hereby dismissed from the service with effect from 9th July, 1981.

 

The clear implication of this letter is that the 2nd Defendant, the Ministry of External Affairs, was not satisfied with the replies of the plaintiff to its queries to him and has consequently. as indicated in its first letter of 1715/78 to the plaintiff, taken or rather initiated disciplinary action against him by making a report of the matter to the 1st Defendant, the Federal Civil Service Commission. And it is clear beyond a peradventure that it was on this report to it which contained the queries of the 2nd Defendant to the plaintiff and the latter's replies to them that the 1st Defendant based its decision to dismiss the plaintiff from the service of the Federal Republic of Nigeria.

 

On the above facts, the trial court found for the plaintiff on his claims which were as follows:-

 

(a)    A declaration that his purported dismissal from the employment of the Federal Civil Service Commission by the letter dated July21, 1981 is null, void and of no effect.

 

(b)    A declaration that the plaintiff is still in the employment of the Federal Ministry of External Affairs.

 

(c)   An order directing the 1st Defendant to reinstate the plaintiff to his status as a Civil Servant without prejudice to the entitlements and promotions which might have accrued to him during the said period of his wrongful dismissal.

 

(d)    An injunction restraining the 1st Defendant from further interfering with the plaintiff's performance of his duties as a Civil Servant.

 

In coming to this decision the trial Judge held inter alia as follows:-

 

I am satisfied on the facts in this case in question that the plaintiff is a public officer at the time of his removal, in the established and pensionable cadre of the Federal Government Service.

 

The finding that the plaintiff was a public officer at the time of his removal in the established and pensionable cadre of the Federal Government Service was not questioned in the Court of Appeal nor before us. In fact it can be said that it is common ground in this case.

 

The judgment in favour of the plaintiff was confirmed by the Court of Appeal. The Defendants have now further appealed to this Court.

 

In this court, briefs of arguments were filed on both sides. In their brief of arguments the Defendants have not, as provided for by Order 6 rule 5(4) of the Supreme Court Rules 1985, said they intend to invite this court to depart from any of its own decisions. So in the case in hand we are concerned with the application of settled principles of the law as decided by this court to the facts of the case.

 

I have no difficulty at all in rejecting the oral submission to us of the learned Attorney-General of the Federation that the Federal Government Civil Service Rules, 1974 no longer have the force at law in that they were made before the 1979 Constitution of the Federal Republic of Nigeria came into force on 1st October, 1979. It is true the Civil Service Rules were made before the 1979 Constitution came into existence and that no new Civil Service Rules have been made since the Constitution was promulgated. It is equally true that the Civil Service Rules, 1974 were in force immediately before the date the 1979 Constitution came into force. In Section 274 of the 1979 Constitution "an existing law" is defined thus:

 

(4) (b)   "existing law" means any law and includes any rule of law or any enactment or instrument whatsoever which is in force immediately before the date when this section comes into force or which having been passed or made before that date comes into force after that date;

 

The "Civil Service Rules" is an existing law within the meaning of that expression in section 274(4)(b) of the Constitution. And in so far as the 1st Defendant has not made, pursuant to section 147(1) of the 1979 Constitution any rules regulating its procedure the question of the Civil Service Rules 1974, being invalid on ground of inconsistency with the provisions of any enactment 6r instrument made under the 1979 Constitution does not arise.

 

So in my judgment the provisions of the Civil Service Rules, 1974 will apply in this case. Chapter 4, Section 1 of the Civil Service Rules deals with Disciplinary Procedure. Rule 04102 says:

 

The power to dismiss and to exercise disciplinary control over servants holding offices in the Federal Public Service of the Federation is vested in the Federal Public Service Commission. This power may be delegated to any member of the Commission or any officer in the Federal Public Service.

 

The plaintiff as a holder of a senior post on the pensionable establishments, can be dismissed from service or disciplined for misconduct only by the 1st Defendant the Federal Civil Sevice Commission and such a power cannot be delegated by the latter to any officer in the Federal Public Service. That much is clear when the provisions of Rule 04102 are read along with those of 04104.

 

I am in full agreement with my learned brother, Eso, J.S.C., when he said in his lead judgment:-

 

I agree with Professor Jegede that there is a mistake in the table under 04104(e). The figure 04108 in the first line and second column should read 04107 for it to be meaningful. The column deals with officers holding senior Posts on Pensionable establishments. 04107 deals with "Service misconduct" while 04108 deals with contract officers or officers on month-to-month. It has long been established that the legislator himself intends the interpretation of an enactment to construe an enactment in such a way as to implement, rather than defeat, the legislative intention. The maxim is Utres magis valeat quam pereat.

 

The relevant rule 04107 has been reproduced in the lead judgment. I do not think I should reproduce it again in this concurring judgment.

 

It is my view that rule 04107 lays down the procedure which the 1st Defendant had to follow if it was of the opinion that the report of misconduct against the plaintiff merited dismissal before coming to the decision to dismiss him.

 

It is crystal clear that this procedure was not followed at all, being that it acted solely on the investigation which the 2nd Defendant, the Ministry of External Affairs carried out in the matter.

 

This takes me to the consideration of rule 04107(u) which says:-

 

The matter shall be investigated by the appropriate authority with the aid of the Head of the officer's Department, and such other officer or officers as the appropriate authority may appoint;

 

In order to properly construe the above provisions one has to reproduce in full the provisions of Rule 04104(e):-

 

(e)    Disciplinary proceedings shall be conducted in accordance with the provisions of the Rules quoted in the following table:-

 

Status of persons charged and delegation of the Federal Public Service Commission's Powers

Rules to be followed in Proceedings for

Misconduct not meriting dismissal

Dismissal general

Removal for inefficiency

A.

Officers holding senior posts on the pensionable establishment

No Delegation

04106

04108

04109

04113

04114

B.

Officers holding senior appointments on agreement, probation or contract

No Delegation

04106

04107

C.

Officers holding junior posts

Delegated to Heads of Departments

04106

04109

04113

04107

04114

 

It will be seen from the above provisions that when it is intended to take disciplinary action in respect of misconduct meriting dismissal against officers holding junior posts the provisions of Rule 04107 apply too. But in that event, the disciplinary power has been delegated by the 1st Defendant, the Federal Civil Service Commission, to the appropriate authority. So the provisions of rule 04107 (ii) will not apply to the plaintiff who is a holder of a senior post on the pensionable establishments, but to officers holding junior posts.

 

So in my judgment it was wrong and contrary to the provisions of rule 04107 of the Civil Service Rules for the 1st Defendant to dismiss the plaintiff on the investigations made by the 2nd Defendant which culminated in the report of misconduct against the plaintiff which the 2nd Defendant made to the 1st Defendant.

 

A long line of the decisions of this court, Shitta-Bey v. Federal Civil Service Commission (1981)1 S.C. 46, Prof. Olanjyan & Ors. V. University of Lagos (1985) 2 N.W.L.R. (Pt.9) 599, Adedeji V. Police Service Commission (1967)1 All N.L.R. 67 at 74, to mention just three, shows that such a decision of the 1st Defendant will not be allowed to stand if challenged as the plaintiff has now done. The cases show too that the plaintiff is also entitled to an order for his reinstatement.

 

For the above reasons and the fuller reasons given in the lead judgment of my learned brother, Kayode Eso, J.S.C., I too dismiss the Defendants' appeal with costs as assessed in the lead judgment.

 

 

Judgment delivered by

Nnaemeka-Agu,J.S.C.

 

Two points need be made from the beginning of this judgment in order to bring it within a proper focus. The first is that the facts are not in dispute. No evidence was given on behalf of the appellants at the trial, with the result that all the evidence went one way. Even in this appeal, the learned Hon. Attorney-General for the appellants, has informed us that the facts are not in dispute. And there are concurrent findings of facts by both the High Court and the Court of Appeal. The second point is that the learned Attorney-General has not properly asked us to review or overrule previous decisions of this Court which are relevant to the issues that fall for decision in this appeal. He has not indicated in his brief, as required by Order 6 rule 5(4) of the Supreme Court Rules, 1985, that he wants this Court to depart from those previous decisions. He has only asked us to distinguish this case from those other cases. But it is a truism that it is always easier to distinguish one case from another on the facts. When the facts are, as stated, not in dispute, the difficulty of distinguishing the case is increased. So, as will later unfold in the course of this judgment, these two features created, as it were, two cast-iron constraints within which it was difficult for the Honourable Attorney-General to operate freely.

 

My learned brother, Eso, J.S.C., has fully set out the facts leading up to this appeal. All I wish to do is to briefly mention those facts which are sufficient to act as a launching pad for the contribution I wish to make.

 

The short bare facts are as follows: The plaintiff, Mr. J. 0. Laoye, a Senior Executive Officer in the Ministry of External Affairs, was formerly on posting to the Consulate-General of Nigeria in New York. It was suspected that while in that office he had committed certain improprieties. As a result, he was issued with queries by means of two ''Preliminary Letters" Exhs. ''B" and ''B1" dated 17th May, 1978, and 28th September, 1978. The query of the 17th of May, 1978, reads as follows:

 

 

MINISTRY OF EXTERNAL AFFAIRS

ADMINISTRATIVE DEPARTMENT

LAGOS.

PMB. No.12600

Telegrams EXTERNAL                                                                              Ref. No. 3/Aa.2391T

Telephone 23962                                                                                         Date 17th May, 1978.

 

Mr. J.O. Laoye

Senior Executive' Officer (Accounts),

u.f.s. Controller (Finance & Accounts),

Ministry of External Affairs,

Accounts Division, Lagos.

 

Preliminary Letter

 

It has been brought to the notice of the Ministry that during the period you served in the Consulate-General of Nigeria in New York, your work and conduct are reported to be unsatisfactory in the following respects:

 

(i)    you held discussions with certain people in New York including an official of the Flying Aces Aviation Training Centre, Miami, Florida and during the discussions you presented yourself as the next in command to the Consul-General, assuring that tuition fees of students you personally recommend or approved of for training would be paid promptly;

 

(ii)    you colluded with some people including certain persons in the above-mentioned Flying Aces Aviation Training Centre to defraud the Government of Nigeria: The amount involved is about the sum of U.S. $119,000 which is alleged to have been paid by the Consulate-General to the Aviation Centre in respect of Government Students who did not attend that Institution;

 

(iii)    you are alleged to have received commissions for your action regarding above; as a matter of fact you received two cheques Nos. 32042 and 32043 each of U.S. $5,000 value (a total of U.S. $10,000) on the 4th August, 1977 from or through Mr. E. E. Akwara, External Affairs Officer Grade VI of the same Consulate-General, which you duly endorsed on the reverse side. The receipt of these amounts was not brought by you to the attention of the Consul-General.

 

2.    Your acts enumerated above amount to misconduct as defined by Civil Service Rule 04201(i).

 

3.      I am directed to request you, therefore, to submit within 48 hours of receipt of this letter, through the Controller (Finance & Accounts), any representations which you may have why steps should not be taken against you for the recovery of the sum of U.S. $l0,000 as afore-mentioned and all such monies improperly obtained by you in consideration of certain services rendered by you in connection with the above quoted cases. Furthermore, you should show why disciplinary action, which may include a report to the Federal Public Service Commission, should not be taken against you. Failure to receive any representations within the stipulated period will be deemed to mean that you do not have any to submit and proceedings against you accordingly.

 

4.     Please acknowledge receipt of this letter on the duplicate copy attached hereto.

 

Sgd. (E. 0. TAIWO)

for Permanent Secretary

 

Suffice it to say that it leveled charges of impersonation, conspiracy to commit felonies, obtaining by false pretences and/or stealing sums of U.S. $119,000.00 property of the Federal Government of Nigeria, economic sabotage, official corruption, and fraudulent receipt of U.S. $10,000.00 thereby. Some of these are clearly felonies and serious offences under the laws of Nigeria. He replied to those two queries promptly. The replies were tendered at the hearing as Exhs. "C" and "Cl." Those replies have been set out in the lead judgment. It is enough for me to observe that he not only vigorously denied the allegation but also raised serious issues of fact and of procedure which would make his commission of the alleged offences unlikely, and mentioned persons such as one E. E. Akwara, his wife Nene, and officers of the Flying Aces Aviation Training Centre, Miami, Florida, who would have been called as witnesses in any proceedings against him. But no proceedings were instituted by either the Ministry of External Affairs or the Federal Civil Service Commission. He was later suspended from duty after being sent back to Lagos. The next Mr. Laoye heard of the matter was a letter Exh. "A" dated 21st July, 1981, from the Federal Civil Service Commission. It stated:

 

The Commission has given careful consideration to your representations dated 22nd May, 1978, 9th October, 1978, and 18th January, 1979 respectively, which you submitted in reply to the Ministry of External Affairs letters numbers 3IAa.2391T of 17th May, 1978, 3IAa.2391 of 28th September, 1978, and 3IAa.2391 of 4th January, 1979 respectively together with all the attachments but considers that you have not exculpated yourself from the charges made against you in the said letters. It has directed therefore that you be, and you are hereby dismissed from the service with effect from 9th July, 1981.

 

By a writ of summons, suit No. LD/635/84 against the Federal Civil Service Commission & 2 Ors., he challenged his dismissal, claiming declarations that his dismissal was null and void and of no effect and that he is still in the employment of the Ministry. He also claimed for a reinstatement and an order of injunction restraining the Defendants from interfering with his performance of his duties.

 

After hearing, during which, as I have said, only the plaintiff gave evidence, the court, Adeniji, J., entered judgment for the plaintiff in terms of his claim. The appeal by the Defendants to the Court of Appeal, Lagos Division; coram: Ademola, Mohammed, Kolawole, JJ.C.A., was dismissed.

 

he Defendants (hereinafter called the appellants) have appealed further to this Court. The plaintiff shall hereinafter be referred to as the Respondent.

 

The appellants and the Respondent filed their briefs. The appellants framed six issues for determination and the Respondent six. As I stated above, we are not being asked to review any previous decisions of this Court applicable to the case. So, issues No.1 in the appellants' brief as well as No.5 in the Respondent's brief which are attacking or questioning the decision in the case of Garba V. University of Miaduguri (1986)1 N.W.L.R. (Pt.18) 550 are misconceived. Also because, as have been stated, there is no dispute on the facts, the first issue in the Respondent's brief raising the question as to whether this Court should interfere with concurrent findings of facts by the court below is unnecessary. The straight issues upon which I wish to express an opinion are:

 

(i)    Whether the dismissal of the Respondent, having regard to all the surrounding circumstances, was in accordance with the provisions of the Federal Civil Service Rules;

 

(ii)    Whether the dismissal of the Respondent, having regard to all the surrounding circumstances, is in accordance with the rules of natural justice;

 

(iii)   Whether the Public Service Commission was obliged to comply with the provisions of section 33(1) of the Constitution of 1979; and

 

(iv)   Whether the provisions of section 33(4) of the Constitution of 1979 are applicable to this case.

 

Now it is common ground that the provisions in Chapter 4 - Discipline of the Federal Government Civil Service Rules, 1974, applied to the case. The learned Attorney-General, for the appellants, contended that the appellants complied with those Rules and further submitted that if in any way it was found that they did not, it was not fatal to their decision to dismiss the Respondent. He referred to the eight points listed at page 73 and submitted that they were summarized from a merger of rules 04107 and 04108, in his submission, erroneously. This, he submitted, affected the assessment of the facts of the case by the two lower courts; hence they came to wrong decisions. He conceded it that there is a certain mix-up as between the table following rule 04104(e) in which Table A suggests that officers holding Senior Posts on Pensionable Establishments could be dismissed under rule 04108 and dealt with under rule 04109, and 04113 whereas those on contract, etc. could be dealt with under rule 04107, on the one hand, and rule 04107 which clearly deals with Dismissal of Pensionable Officers whereas rule 04108 deals with Dismissal of Officers on Contract, on the other hand. Then he made what he himself described as an alarming submission. He submitted that the whole Federal Government Civil Service Rules, 1974, has no constitutional backing because the 1963 Constitution under which it was made is dead and soit is not an existing law within the meaning of the 1979 Constitution.

 

Professor Jegede, for the Respondent submitted that it is clear from the Rules that the applicable rule, and what was in fact applied in the courts below, is rule 04107; that the reference to rule 04108 in Table A under rule 04104(e) is an obvious mistake because it is rule 04107 that deals with pensionable officers, such as the Respondent. He further submitted that those Civil Service Rules are an existing law within the meaning of section 274 of the 1979 Constitution. Finally he submitted that the appellants have not observed the provisions of rule 04107.

 

Looking closely at these rules, it appears quite clear that there has been an obvious mix-up as between the table in rule 04104(e) and the clear provisions in rules 04107, 04108, 04109 and 04113. What then should I do, in the circumstances?

 

Now, although generally it is for the legislator to change the law when it desires to do so, this Court can, and ought to, correct obvious slips in drafting. See Re Twiggs Estate (1892)1 Ch. 579; R. V. Wilcock (1845) 7 Q.B. 317. In all such cases it is permissible for the Court to depart from strict literal construction in order to give effect to the legislator's intention. I am reinforced in this respect by the dictum in Virginia V. Tennessee 148 U.S. 503 where it was stated.

 

The obscurity or doubt of any particular word may be removed by reference to associated words. And the meaning of a term may be enlarged or restricted by referring to the object of the whole clause in which it is used.

 

See also - Garba V. Federal Civil Service Commission (1988)1 N.W.L.R. (Pt.71) 449, at page 468. I shall apply this principle of interpretation to the problem which has arisen in this case. This is the only way whereby I can give some meaning to the above rules.

 

If I apply the above principle, it is clear that rule 04107 is the relevant rule which deals with "Dismissal of Pensionable Officers." The term "officer" is defined in the rule to mean '~all officers in the Public Service except the following:

 

(a)  officers on contract or month-to-month terms,

 

(b)   unestablished staff, and

 

(c)   non-pensionable staff, etc.

 

It is clear therefore that the Respondent comes within this definition. On the other hand, rule 04108 deals with dismissal of officers on contract or month-to month terms, etc. This is not relevant in this case.

 

Rule 04107 sets down elaborately the rules to be followed for the dismissal of officers, such as the Respondent. The rules are as follows:

 

(i)    The officer shall be notified in writing of the grounds on which it is proposed to dismiss him, and he shall be called upon to state in writing, before a day to be specified (which day must allow a reasonable interval for the purpose) any grounds upon which he relies to exculpate himself;

 

(ii)    The matter shall be investigated by the appropriate authority with the aid of the Head of the officer's Department, and such other officer or officers as the appropriate authority may appoint;

 

(iii)   If any witnesses are called to give evidence, the officer shall be entitled to be present and to put questions to the witnesses;

 

(iv)    No documentary evidence shall be used against the officer unless he has previously been supplied with a copy thereof or given access thereto;

 

(v)    If the officer does not furnish any representations within the time fixed, the Federal Public Service Commission may take such action as it deems appropriate against him;

 

(vi)   If the officer submits his representations and the Commission is not satisfied that he has exculpated himself, and considers that the officer should be dismissed, it shall take such action accordingly;

 

(vii)  If upon considering the representations of the officer the Commission is of the opinion that the officer does not deserve to be dismissed but that the facts of the case disclose grounds for requiring him to retire in accordance with Rule 04114 it shall direct accordingly;

 

(ix)    In exceptional cases, if upon considering the officer's representations the Commission is of the opinion that the case against the officer needs further clarification, it shall appoint a Committee to enquire into the matter. The Committee shall consist of not less than three persons, one of whom will be appointed Chairman by the Commission. The members of the Committee shall be selected with due regard to the standing of the officer concerned, and to the nature of the complaints which are the subject of the Inquiry. The Head of the officer's Department shall not be a member of the Committee;

 

(x)    The officer shall be informed that on a specific day, the question of his dismissal shall be brought before the Committee and that he shall be required to appear before it and defend himself and shall be en-titled to call witnesses. His failure to appear shall be brought before the Committee and that he shall be required to appear before it and defend himself and shall be entitled to call witnesses. His failure to appear shall not invalidate the proceedings of the Committee;

 

(xi) If witnesses are examined by the Committee, the officer shall be given an opportunity of being present and of putting questions to the witnesses on his own behalf, and no documentary evidence shall be used against him unless he has previously been supplied with a copy thereof or given access thereto;

 

(xii) In exceptional cases, the Committee may, in its discretion, permit the officer to be represented by a solicitor or counsel, provided that where the Committee permits the officer to be represented by Counsel, the government shall similarly be represented by a counsel;

 

(xiii) If during the course of the inquiry further grounds for dismissal are disclosed, and the Federal Public Service Commission thinks fit to proceed against the officer upon such grounds, the officer shall by the direction of the Commission be furnished with a written statement thereof and the same steps shall be taken as are above prescribed in respect of the original grounds;

 

(xiv) The Committee have inquired into the matter shall make a report to the Commission which, if it considers that the report should be amplified in any respect or that further enquiry is desirable, may refer any matter back to the Committee for further inquiry or report accordingly. The Commission shall not itself hear witnesses;

 

(xv) If upon considering the report of the Committee together with a copy of the evidence and of all material documents relating to the case, the Commission is of the opinion that the officer should be dismissed, such action shall immediately be taken;

 

(xvi) If the Federal Public Service Commission does not approve the officer's dismissal, and does not consider that any penalty should be imposed, the officer shall be reinstated forthwith and shall be entitled to the full amount of salary denied him if he was interdicted;

 

(xvii) If the Commission considers that the officer deserves some punishment but not dismissal, it shall apply such penalty as it deems appropriate;

 

(xviii) If upon considering the report of the Committee, the Commission is of the opinion that the officer does not deserve to be dismissed but that the proceedings disclose grounds for requiring him to retire, the Commission shall, without further proceedings, direct accordingly.

 

It was only the Respondent who testified at the hearing. The appellants did not testify. Fro m this evidence, it is clear that there was non-compliance with rules (ii), (iii), (x), (xi), and (xiv) above.

 

Among the intendment of these provisions is that when there are allegations against an officer such as the Respondent they shall be investigated by the Federal Civil Service Commission, the appropriate authority itself, with the relevant Head of Department only acting as an aid. This is to ensure fairness and impartiality. Rule (iii) intends that witnesses will have to be called, where necessary, and the person whose conduct and career are on trial be afforded an opportunity to be present to examine or cross-examine them, as the case may be. Rule (ix) is a further insurance against hasty decisions. The officers representations must be given, and be seen to have been given a deliberate consideration. If, after doing so, some doubt exists, the Commission must refer the matter to a Committee of not less than three persons composed in such a way as to take due regard of the status of the officer concerned and the nature of the complaints which are the subject of the inquiry.

 

It is emphatically provided that the officer's Head of Department shall not be a member of this Committee. For example, in the case in hand in which, from the contents of Exhs.B and Bi and C and Cl it is obvious that certain issues of accounting and set-up in the office of the Consul-General have been raised, a Committee set up under rule (ix) ought to include certain persons who could understand and appreciate those issues. It appears to me also that from the queries and replies thereto Mr. and Mrs. Akwara as well as an appropriate officer of the Consul-General's office and one person from the Flying Aces Aviation Training School are necessary witnesses and ought to have been examined and cross-examined in the presence of the Respondent, in the spirit of these rules. Above all, the letter of dismissal should have issued as a result of the inquiry by the Commission itself or, under rule (xv), after an inquiry by the Committee and pursuant thereto, and not, as is obvious from the letter of dismissal dated 21st July, 1981, after consideration of the Respondent's representations to his Head of Department following the preliminary letters, Exhs. B and Bi. Also it is not clear that rule (vii), (xvi) (xvii) and (xviii) were considered at all. There can be no gainsaying the fact that these Civil Service Rules have been formulated in such a way as to avoid injustice. But they have been flagrantly disregarded in the case of the Respondent. All that he had was a query (Preliminary Letters) Exhs. ''B" and ''B1" from his Ministry, and having sent in his replies (Exhs. "C" and Ci") which raised serious issues which should be investigated, but were not, he next got a letter of dismissal, Exh. ''A" from the Commission. The content of Exh ''A" set out above, bears out the above conclusion that the Commission acted solely on the preliminary letters, Exhs. "B" and ''B1" and the replies to them, Exhs. "C" and ''C1". From these facts, I must answer the first question raised above, that is whether the dismissal of the Respondent was in accordance with the Federal Civil Service Rules in the negative. Having reached that conclusion and in view of the fact that the Respondent's office is obviously one with a statutory flavour, I must apply the principles of many decided cases by this Court namely:

 

Falamo v. Lagos State Pubhc Service Commission (1977)5 S.C. 51, at p.56;

Shitta-Bey V. Federal Civil Service Commission (1981) 1 S.C. 40;

Prof Olaniyan v. University of Lagos (1985) 2 N.W.L.R. (Pt.9) 599;

Eperokun v. University of Lagos (1986) 4 N.W.L.R. (Pt.34) 162.

 

If  I apply these principles, I must conclude that the Respondent was entitled to

a fair hearing, but was not given one. On this ground alone, I must declare his dismissal null and void. I, however, wish to say something about the other issues raised in argument.

 

I do not agree with the Honourable Attorney-General that the Federal Civil Service Rules, 1974, has no constitutional backing. It is true - and he conceded it - that it was duly made under the 1963 Constitution. It was still valid law by the time the 1979 Constitution came into force on 1st October, 1979. It therefore, became an existing law after October 1,1979, within the meaning of section 274 subsection (4)(b) of the 1979 Constitution.

 

On the issue of rules of natural justice, two questions need to be asked, namely: (i) was the Respondent entitled to a hearing before the Commission, the dismissing authority, could dismiss him? If the answer is in the affirmative, was he given a hearing?

 

There can be no doubt that the Respondent has had very serious charges leveled against him. In fact he has been accused of grave crimes - crimes which, if proved, will amount not only to felonious crimes but also border on economic sabotage of the nation. A person so accused is entitled to be confronted with his crimes, be told the nature and content of the case against him, be brought face to face with his accusers and their witnesses, be given the opportunity to test their veracity under the fire of cross-examination, to defend himself personally and with the assistance of a counsel of his choice, and to call such witnesses that he wishes to call to support his case - all these within a reasonable time and before a court or tribunal constituted in such a way as to ensure its fairness and impartiality. Those are the aspects of the rule of natural justice that concern us in this case. The Respondent was fully entitled to each and every ingredient of it. No one can rightly derogate from any part of it. Even God himself felt obliged to hear Adam before condemning him of his heinous transgression. It is no answer in any case in which a person is entitled to a hearing to say that his offence was so obvious that any hearing would have been a mere formality. For, quite often, when the rule of natural justice is observed and a trial is proceeded with, it turns out that the whole affair was a conspiratorial fabrication or at best based on mere suspicion. This is why once a breach of natural justice has been properly raised in any proceeding it is not a relevant consideration to inquire whether the court or tribunal in fact decided rightly. See S.C. 118/1988- Kotoye V. Central Bank of Nigeria & Ors. (1989)1 N.W.L.R. (Pt.98) 419. The result of a breach of the rule is that the decision will be set aside: See Adigun V. Attorney-General for Oyo State (1987)1 N.W.L.R. (Pt.53) 678. It is worse in this case in which the Respondent, in Exhs. "C" and "Cl", raised very serious issues of fact which seriously deserved to be investigated, but were not.

 

There can be no doubt that an administrative authority such as the 1st appellant vested with the quasi-judicial power to decide issues which involve

the rights of citizens is bound to observe the rules of natural justice. Any decision which such a body reaches without due observance of the rules of natural justice is bound to be set aside. See on this:

 

Olatunbosun V. NISER (1988) 3 N.W.L.R. (Pt.80) 25

Kanda V. Government of Malaya (1962) A.C. 322

Buzugbe V. Civil Service Commission (1984) 7 S.C. 19.

 

The Federal Civil Service Commission is a creature of the Constitution. It was never intended to be above the Constitution. Rather it is intended at all times to operate within the parameters of the Constitution which established it and gave it power. When it has to carry out its quasi-judicial function of deciding the fate of a Federal Civil Servant under the Federal Civil Service Rules, it is bound to observe the principles of fair hearing as enshrined in section 33(1) and 33(4) of the Constitution. Indeed part of the Federal Civil Service Rules, relevantly rule 04107, is intended to ensure this. As for the scope and intendment of section 33(1) of the Constitution, I should reiterate what I said recently in N.A.B. Kotoye v. Central Bank of Nigeria (1989)1 N.W.L.R. (Pt.98) 419, at page 444, where I stated:

 

There are certain basic criteria and attributes of fair hearing, some of

which are relevant in this case. These include:

 

(i)    that the court shall hear both sides not only in the case but also in all material issues in the case before reaching a decision which may be prejudicial to any party in the case. See Sheldon v. Bromfield Justices (1964)2Q.B. 573, at p. 578.

 

(ii)    that the court or tribunal shall give equal treatment, opportunity, and consideration to all concerned. See on this Adigun v. Attorney-General, Oyo State & Ors. (1987)1 N.W.L.R. (Pt.53) 678.

 

(iii)    that the proceedings shall be held in public and all concerned shall have access to and be informed of such a place of public hearing and

 

(iv)   that having regard to all the circumstances, in every material decision in the case, justice must not only be done but must manifestly and undoubtedly be seen to have been done: R. v. Sussex Justices, ex parte McCarthy (1942)1 K.B. 256, at p.259; Deduwa & Ors. v. Okorodudu (1976)10 S.C. 329.

 

Thus, fair hearing in the context of section 33(1) of the Constitution of 1979 encompasses the plenitude of natural justice in the narrow technical sense of the twin p illars of justice - audi alteram partem and nemo judex in causa sua - as well as in the broad sense of what is not only right and fair to all concerned but also seems to be so.

 

Before the Commission decides cases of breaches of those rules, it should place itself. as it were, in the position of a judge The parties before it are the relevant Ministry or Department of Government, as accusers, on the one part, and the civil servant to be affected by their decision on the other part. It should hear each party and its witnesses, orally or in writing, as the case may require, and proceed diligently in accordance with the Rules. In my view the Federal Civil Service Commission as a body exercising quasi~udieial function, if it was within their competence to try the Respondent, was bound to have operated in this case in accordance with the letters and spirit of section 33(1) and (4) of the Constitution. But. from what I have stated, it failed to do so. For it !5 pretty clear that the Respondent was dismissed without being heard by the Commission. It acted merely on the opinion of the Ministry of External Affairs, the other party to the conflict, without hearing him or, in accordance with the rules. investigating the issues raised by the Respondent in Exhs. ''C" and ''C1'', his answers to the Preliminary Letters, Exhs. ''B" & ''B I". The Respondent wrote those letters not to the Commission, but to the Ministry, his accusers. The Commission never even sent a query to the Respondent, much less hear him orallv in his own defence. They dealt with him through his accusers. There was no hearing, much less a fair one. See again L. P. D.C. v. Chief Fawehinmi (supra); also Adigun v. Attorney-General of Oyo State (I 987) I N..L.R. (Pt.53) 678. The first appellant was bound to have observed this also. but did not.

 

But one element in the facts of this case takes it beyond the competence of the Commission to hear both sides and reach a verdict. The charge against the appellant is not merely a breach of the Civil Service Rules or General Orders. He was accused of committing   aggravated felonies and economic sabotage. This element is the foundation for the fourth issue framed above: that is whether the provisions of section 33~4) of the Constituti~)n applies in this case.

 

Now section 33(4) of the Constitution 1979 provides as follows:

 

(4)    Whenever any person is charged with a criminal offence. he shall,he shall unless the charge is withdrawn, be entitled to a fair hearing within a reasonable time by a court or tribunal.

 

This is a rieht conferred and secured bv the Constitution. Put simply. the issue raised bv this aspect of the appeal is whether the Federal Ci\il Service Commission could have rightly ignored this fundamental right of the Respondent and, without allowing him to be tried within a reasonable time by an impartial and fair court or tribunal. proceeded to, as it were, pronounce him guilty as charged and inflict upon him the consequential punishment of dismissal from the Public Service of the Federation?

 

This Court in a number of decisions has made the position clear. It is that where public bodies, such as the Federal Civil Service Commission is vested with the power to discipline certain persons, it can exercise such a power at all relevant times. in accordance with laid down rules of procedure, if any, and the rules of actual justice. If there are no laid down rules, it will exercise the functions in accordance with the rules of natural justice. But whenever the charges against those persons amount to criminal offences under our criminal laws, such a body must take the view that it is not vested with the power to try criminal offences and cannot usurp the power intended by the Constitution to be exercisable by the courts or tribunals. See on this: Denloye v. Medical & Dental Practitioners Disciplinary Comnuttee (1968)1 All N.L.R. 306; Dr. Sofekun V. Chief Akiyemi (1980)5-7 S.C. 1, at p. 18-19; Mr. Yesufu Amuda Garba & Ors. V. The University of Maiduguri (1986)1 N.W.L.R. (Pt. 18)550.

 

These were cases decided under the Constitution of 1963 and 1979. It is instructive, however, that even in England, the principle has found firm root. See Casson & Anor. V. University of Aston in Birmingham (1983)1 All E.R. 88.

 

I am therefore of the clear view that in view of the nature of the charge against the Respondent, the Federal Civil Service Commission was wrong when it arrogated to itself the powers and functions of a court and worse, without any hearing, fair or unfair, came to its conclusion to dismiss the Respondent in spite of, and because of, the very serious criminal charges leveled against him. This was the sole ground dealt with by Ademola. J.C.A., in his contribution: and he was right in his conclusion.

 

For all the reasons I have given above, and for the fuller reason given by my learned brother, Eso. J.S.C.. this appeal fails and is dismissed, with costs as ordered in the lead judgment.

 

 

Counsel

 

Prince Bola Ajibola. S.A.N.

Attorney-General of the Federation and Minister of Justice

With

S.N.C. Harris-Eze - Legal Adviser. Federal Ministry of Justice

Yemi Osinbajo. Special Asst' to the Hon. Attorney-General

Mrs F.F. Akenzua - State Counsel. Federal Ministry of Justice

For the Appellants

Professor M.I. Jegede

With Mrs. Titilola Kehinde

For the Respondent