Dr. G. O. Sofekun V. Chief N. A Akinyemi & Ors (1980)

LawGlobal-Hub Lead Judgment Report

FATAI-WILLIAMS, C.J.N.

By the provisions of section 2 of the Nigeria (Constitution) Order-in-Council, 1960, the Constitution of the Federation of Nigeria and those of Northern, Western and Eastern Nigeria set out in the Third, Fourth and Fifth Schedules to the Order came into effect in Nigeria on 1st October, 1960.

Section 62 of the Constitution of Western Nigeria (hereinafter referred to as the Constitution) provided that there shall be a Public Service Commission for the Region which shall consist of a Chairman and not less than two or more than four other members, and that all the members of the Commission shall be appointed by the Governor acting in accordance with the advice of the Premier. Section 63 gave the Commission power to appoint persons to hold or act in offices in the public service of the Region (including power to make appointments or promotion and transfer and to confirm appointments) and to dismiss and exercise disciplinary control over persons holding or acting in such offices.

Certain offices with which we are not concerned in this appeal were, however, excepted from these provisions.

Section 72 subsection (1) further provided that any Commission, including of course the Public Service Commission of Western Nigeria, established by the Constitution aforesaid might, with the consent of the Premier or such other Minister of the Government of the Region as may be authorised in that behalf by the Premier, by regulation or otherwise, regulate its own procedure or confer powers and impose duties on any officer or authority of the Region for the purpose of discharging its functions.

Pursuant to the provisions of section 72 subsection (1) referred to above, the Public Service Commission of Western Nigeria made the Public Service Commission Regulations, 1963 (published as W.N.L.N. 99 of 1963 and hereinafter referred to as the Regulations). The Regulations came into force on 2nd May, 1963. It is, I think, pertinent to point out at this juncture, that in regulation 3, the words “criminal offence” was defined, for the purpose of the Regulations, to mean “Any offence involving fraud, dishonesty, or other moral turpitude, or any other offence or class of offences as the Commission may generally or in particular cases prescribe.”

Furthermore provisions were made in regulations 41, 44, 45 and 46 as follows:

“41. In any case which comes to the attention of the Commission, if the Commission is of the opinion that disciplinary proceedings should be instituted against a public officer, the Commission may, subject to the provision of regulation 44 but notwithstanding any other provisions of these Regulations, direct the Head of Department to initiate such proceedings in accordance with these Regulations or itself initiate proceedings in that behalf in such manner as it thinks fit.

44. If it appears, while the institution of disciplinary proceedings is being contemplated, or in the course of an inquiry or investigation, that an offence against any enactment (being a criminal offence as defined for the purpose of these Regulations) may have been committed by a public officer, the institution or continuation of disciplinary proceedings shall be postponed and the disciplinary authority shall, unless the Police have taken or are about to take action, ask the Director of Public Prosecutions whether he considers it desirable to institute criminal proceedings against the officer, and if the Director does not consider it desirable to institute such criminal proceedings the disciplinary authority shall refer the matter to the Solicitor-General for an opinion as to whether or not disciplinary proceedings can properly be instituted or continued under the appropriate regulation. If the Solicitor General’s opinion is in the affirmative the charges framed against the officer shall be approved by the Solicitor-General before the officer is required to answer them or before the proceedings continue.
45. If criminal proceedings are instituted against a public officer in any court of law, disciplinary proceedings upon any grounds involved in the criminal charge may be taken only after the conclusion of the criminal proceedings and the determination of any appeal there from and then only if, having regard to the provisions of regulation 50, the case is one in which disciplinary proceedings may properly be taken.
46. If disciplinary proceedings for a public officer’s dismissal (including any disciplinary proceedings with a view to dismissal instituted or continued in pursuance of regulation 50) are instituted or are about to be instituted, or if Criminal proceedings are instituted against a public officer, and if the disciplinary authority considers that the interests of the public service require that such public officer should cease forthwith to exercise the powers and functions of his office, the disciplinary authority may

(a) if the officer holds an appointment, other than a temporary appointment, in category 1, 2 or 3: interdict him, or

(b) if the officer holds an appointment in category 4, or a temporary appointment in any other category, terminate his appointment by payment of the appropriate remuneration in lieu of notice, but if such criminal proceedings result in his acquittal or is such disciplinary proceedings (including any disciplinary proceedings with a view to dismissal instituted or continued in pursuance of regulation 50) result otherwise than in his dismissal he shall be re-engaged with effect from the date of such result or from the day following the expiration of the period for which he was said remuneration in lieu of notice, whichever is the earlier.

When the Federation of Nigeria was proclaimed a Republic on 1st October, 1963, the 1960 Constitution of Western Nigeria was replaced by another Constitution of Western Nigeria (published as W.N. Law No. 26 of 1963). The provisions of sections 62,63 and 72 of the 1960 Constitution referred to earlier were re-enacted verbatim in the 1963 Constitution. Moreover, it was provided in section 77 subsections (1) of the said Constitution as follows:

revealed by section 76 of this Constitution or which was deemed by virtue of any such provision to be so established, made, held or done, shall be deemed

(a) to have been duly established, made, held or done in pursuance of the corresponding provision of this Constitution, whether or not the corresponding provision differs from the provision to which it corresponds; and

(b) so far as relevant in the case of an appointment, election, selection or other thing, to have been so made, held or done in pursuance of the corresponding provision on the date or for the period on or for which it was actually made, held or done.