Bashir Alade Shitta-bey V. The Federal Public Service Commission (1981)

LawGlobal-Hub Lead Judgment Report

IDIGBE, J.S.C.

At this point in this litigation there is for determination an issue as to whether an order of mandamus can issue from the High Court to compel the respondent, The Federal Public Service Commission, “to exercise its Jurisdiction so as to give effect to” a declaratory judgment. I can take, I think, the history of the matter which has led to this question briefly in this way. On 15th October, 1973, one Iyabo Olorunkoya, a Nigerian, was arrested in London while attempting to import into the United Kingdom seven cases containing Indian Hemp, a “dangerous and prohibited drug”. In the course of investigation into this offence, a letter from the appellant, who at the time was holding the post of Legal Adviser in the Federal Ministry of Justice (a post in the established cadre of the Federal Civil Sevice), asking Iyabo to “send details as soon as” she arrived in London was found in her possession. On the 14th of March, 1974, the acting Solicitor-General of the Federation and Permanent Secretary of the Federal Ministry of Justice wrote a letter, Exhibit “A” to the appellant in which he stated that he had been directed by the Federal Public Service Commission (the respondent herein) to request the appellant to proceed on leave immediately, pending investigations into his alleged involvement in the criminal case in England against Iyabo Olorunkoya, who by then had been convicted for certain offences relating to the importation in that country of Indian Hemp. This letter was followed by another letter dated the 10th April, 1974 (Exhibit “B” in these proceedings) written by the same officer (i.e. the acting Solicitor-General and Permanent Secretary aforesaid )to the appellant disclosing to him the decision of the respondent that he be “interdicted” from service pending the outcome of the inquiry. Yet another letter (Exhibit “B (1)” in these proceedings) written on the 11th April, 1974 by the same officer (i.e the acting Solicitor-General and Permanent Secretary aforesaid) to the appellant requested him to read “suspended” for the word “interdicted” in Exhibit B. At the end of the inquiry into the appellant’s alleged involvement in the crime for which Iyabo Olorunkoya was convicted, the acting Secretary of the Respondent Commission herein wrote a letter dated 7th January, 1975 (Exhibit “C” in these proceedings) to the appellant wherein he stated:

“Your representations dated 31st October, 1974 submitted in reply to this Commission’s letter No. FC.02478/125 of 28th October, 1975 (read 1974) have been carefully examined by the Commission but it does not consider that you have exculpated yourself.

The Commission has therefore directed that you be and you are hereby retired from the service in the public interest under C.S.R. 04114 (i.e. Civil Service Rules Paragraph 04114) with effect from the date of this letter, with full retiring benefits………..” (Brackets and contents supplied by me).

The appellant after receipt of the letter, Exhibit “C” instituted court proceedings in Suit LD/37/76 claiming the following declarations:-

(1) that the directive given by the defendant (the Federal Public Service Commission) that the appellant (then, plaintiff) be suspended from the exercise of his duties as Public Officer and his actual suspension from duty without pay as contained in letters No……. of 10th April, 1974 and No……of 11th April, 1974, is irregular, illegal, null and void; and

(2) that the directive given by the defendant (the Federal Public Service Commission) that the appellant (then, plaintiff) be retired from the service of the Federal Government of Nigeria and the purported retirement as contained in letter No…….of 7th January, 1975, is irregular, illegal null and void.”

On the 23rd December, 1977, the High Court of Lagos State (Bada, J.,) gave judgment (Exhibit “D” in these proceedings) in favour of the appellant (then, plaintiff) in the following terms “…………. I hereby declare:

(1) that the directive given by the defendant (now, respondent) that the plaintiff be suspended from the exercise of his actual suspension from duty without pay as contained in letters…………. of 10th April, 1974 and …….. of 11th April, 1974 is irregular, illegal null and void; and

(2) that the directive given by the defendant that the plaintiff be retired from the service of the Federal Government of Nigeria and the purported retirement (of the defendant) as contained in letter….. of 7th January, 1975 is irregular, illegal, null and void.” (Brackets and contents supplied by me).

The respondent has now appealed from the above decision of Bada, J., in the affidavit filed by the appellant in support of the present proceedings, he alleged:

(a) “That the Federal Ministry of Justice being my last duty post immediately before the purported suspension and retirement, I reported for duty at the Ministry on 27th December, 1977, but I was told by the Solicitor-General of the Federal and Permanent Secretary, Mr. O. A. Soeton, that it would still be necessary for the respondent i.e the Federal Public Service Commission, to issue the necessary directive to enable me report for duty.”

(b) “That on the same 27th December, 1997, I wrote a letter to the respondent through the Solicitor-General of the Federation whereby I requested (for) the directive of the respondent as to when I should report for duty”

(c) “That as there was no response, I wrote another letter dated 8th May, 1978 to the respondent through the Solicitor-General whereby I repeated my request” (Brackets and contents and underlining supplied by me).