Alhaji Sule Katagun & 2 Ors (Constituting The Police Service Commission) V M.E.K Roberts (1967)

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BRETT, Ag. C.J.N.

The respondent was at all material times the Deputy Inspector-General of the Nigeria Police Force, and the appellants were the Chairman and Members of the Police Service Commission established by section 109 of the Constitution of the Federation. After various letters had passed between the respondent and the Commission concerning allegations of misconduct which had been made against the respondent, the Secretary to the Commission addressed a letter to the respondent dated the 10th May, 1965, which read as follows–

Sir,

In view of your letter of 7th May in reply to my FC. 18015/64 of 29th January, the Commission has now directed me to give you 6 months’ notice of its intention to retire you from the Service, as provided for in Section 9(1) of the Pensions Act, the notice to take effect from the date of this letter.

2. May I please be favoured with your acknowledgement of this letter as soon as possible?”

The respondent protested in writing, and in a letter dated the 25th June, 1965 the Secretary to the Commission informed him that the Commission was unable to change its earlier decision and had directed that he be relieved of his duties forthwith.

On the 8th July, 1965, the respondent took out a writ against the Attorney-General of the Federation and the Police Service Commission; later he obtained leave to substitute the three appellants by name for the Commission. The relief asked for was–

“. . . a declaration that the purported Notice of intention to retire him and his subsequent retirement from the service of the Nigerian Government under Section 9(1) of The Pensions Act, which notice was served on him by the 2nd defendants, is illegal, ultra vires and of no effect.”

After a motion to dismiss the suit as not maintainable against the defendants had been refused, pleadings were ordered, and a Statement of Claim was filed. The defendants then brought a motion under Order 28 of the High Court (Civil Procedure) Rules, asking for–

“… an order that the suit herein be dismissed without any answer upon the questions of fact being required from them on the ground that (a) this Honourable Court has no jurisdiction to entertain these proceedings against the 2nd, 3rd and 4th Defendants/Applicants; (b) that the proceedings disclose no cause of action against the Defendants/Applicant’s (c) that they are frivolous, and an abuse of the process of this Honourable Court and for such further order or orders as this Honourable Court may deem fit to make in the circumstance.”

The motion was heard by Taylor, C.J. He gave judgment dismissing the Attorney-General of the Federation from the suit and no appeal has been brought against this decision. He refused to dismiss the suit against the three appellants summarily, and the present appeal is brought against that refusal.

Two grounds of appeal were filed, but one was abandoned and the only ground argued in this Court read-

“The learned Chief Justice erred in law when he failed to consider that the powers exercisable under Section 9(1) of the Pensions Act can only be exercised by the Police Service Commission having regard to Sections 1, 109, 110 and 156 of the Constitution of the Federation and Section 10-(2) of the Interpretation Act, 1964.” Section 9 of the Pensions Act reads

“9. (1) It shall be lawful for the Minister to require an officer to retire from the public service of the Federation at any time after he attains the age of forty-five years, subject to six months’ notice in writing of such requirement being given to the officer by the Minister.