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Home » Nigerian Cases » Supreme Court » Bashir Alade Shitta-bey V. The Federal Public Service Commission (1981) LLJR-SC

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

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

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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).

As there was no response from the respondent to the persistent request of the appellant, he commenced the present proceedings in the High Court of Lagos State asking for the following reliefs:-

(1) “An order of mandamus to compel the respondent to discharge its duty by issuing the necessary directive to enable the applicant report for duty as a civil servant in the Federal Civil (read, Public) Service or, in the alternative, to compel the respondent to exercise its jurisdiction according to law so as to give effect to the judgment delivered by the High Court Lagos, on 23rd December,1977 in Suit LD/37/76;

(2) And for such further order or other order or orders as this Honourable Court may deem fit to make in the circumstances.” (Underlining by me)

At the conclusion of these proceedings in the High Court of Lagos State, the learned Chief Judge (Adefarasin, CJ.,) dismissed the appellant’s claim. I think, it is necessary to draw attention to the relevant passage in the judgment of the learned Chief Judge which, he obviously, regarded as the foundation of his final order; these read:-

(A) “although the parties to the application have advanced very lengthy legal arguments for and against the application, only one short question calls for an answer and it is this, Should a court of law make an order of mandamus compelling a statutory body such as the Public Service Commission to re-instate a servant whose employment had already been determined It seems to me that the answer to that question is undoubtedly in the negative.

(B) In the first place it has to be borne in mind that, the grant of an Order of Mandamus is a matter for the discretion of the court. It is never granted as of right nor is it issued as a matter of course…………….There was in existence between the applicant and the Federal Government of Nigeria a relationship of master and servant which the respondent as an agent of the Government has determined with full retiring benefits. The applicant is aggrieved by that (sic) decision and wants, by his application by the order of mandamus, for the employment to continue. An employer has an undisputed right to dismiss or discharge his servant. Should he (do) so unlawfully the redress which the servant has lies in damages for wrongful dismissal. The court will not compel an unwilling master to keep in his employment a willing servant or in a way make an order for the specific performance of a contract of service…”

After referring to the cases of (1) Francis v. Municipal Council of Kuala Lumpur (1962) 3 All ER 633 P. C. (2) Oki v. Taylor Wall Tanjon (Nigeria) Ltd. (1965) 2 All NLR 45 (3) T. Bankole v. Nigerian Broadcasting Corporation (1968) 2 All NLR 372 (4) Chief Okenla v. J.M. Beckley and Ors. (1971) 2 All NLR 174 and (5) Ukpilla Cement Company Ltd. and Anor. v. Igiekhume a decision of the Federal Court of Appeal in FC/A/B/97/77 of 22nd January, 1979, the learned Chief Judge continues:-

(C) “………..I am inclined to follow the well settled principle of common law to force a master to accept the services of a servant which he has determined, even unlawfully. Secondly, mandamus lies to secure the performance of a public duty, in the performance of which the applicant has a sufficient legal interest.

(D) Mandamus will not lie to order admission or restoration to an office that is essentially of a private character……Thirdly, the court will, as a general rule and, in the exercise of its discretion refuse an Order of Mandamus when there is an alternative specific remedy at law which is not less convenient, beneficial and effective (see Halsbury’s Laws of England 3rd Edition Volume 11 p.107 paragraph 200) ………….The applicant here has another alternative remedy to…………….Mandamus. Fourthly, no Order of Mandamus will lie against the crown or agent of the crown such as the respondent is ……

(E) ……….I am unable, in the exercise of my discretion, to make an Order for Mandamus which will have the effect of compelling the respondent to restore the appellant to the duties of which he had already been relieved. I have come to this decision notwithstanding the declaratory orders in the judgment in……. LD/37/76……:(Underlining, brackets and contents by me)

From the above judgment, the appellant appealed to the Federal Court of Appeal (hereinafter referred to simply as “the Court of Appeal”); and their Lordships in that court (Coker, Wali and Uthman Mohammed JJCA.,) on the 12th day of June, 1980 dismissed the appeal for almost exactly the same reasons which formed the basis of the order of dismissal, of the application, by the court of first instance. Again, I think it is desirable to refer to certain passage in the lead judgment of Uthman Mohammed, JCA, in the court of Appeal with whom Wali, JCA., found himself “in complete agreement” and Coker, JCA., “reluctantly in agreement”. After stating, in his judgment, that “the issue of the applicant’s status as public officer if distinguished from those situations of ordinary master and servant relationship raised varied opinions.” His Lordship, Uthman Muhammed, JCA., referred to a passage in the opinion of Lord Reid in Ridge v. Baldwin (1963) 2 All E.R. at 66, and continued:-

(A) “……..When one refers to this classification it would appear that the appellant would fall in the second category, that is, those holding office at pleasure. But here in Nigeria the Public Service Commission (i.e. the respondent) promulgated a procedure which would guide it in the performance of its statutory duty. It would seem that the regulations, not being a statutory provision, (sic) is not a public right. It is relevant to note that in India pleasure of the Government to terminate the services of a civil servant is subject to restrictions and limitations imposed by the Constitution of India. The Constitution of the Federation of Nigeria has not specified (i.e. imposed) these limitations………I agree with the learned Chief Judge that you cannot impose on a master the servant he does not want…….

(B) The learned counsel for the respondent, rightly, in my view, submitted that the appellant has no legal right to be appointed a civil servant…………Certainly this is the gist of the whole application. Needless to ask whether the applicant has a legal right to be re-instated or employed as a legal adviser in the Federal Ministry of Justice…………The court will as a general rule and in the exercise of its discretion refuse an order of Mandamus when there is an alternative specific remedy at law which is (sic) less convenient, beneficial and effective.”

The learned Justice of the Court of Appeal then added:

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“…………..I shall add and say that under normal civil service conditions where a position in an office fall vacant immediate arrangement is normally made to fill it……… Under normal this civil service conditions the post the applicant held before the retirement must have been filled. The applicant has not made any submission to show that the position is still vacant. The general rule is Lex non cogit ad inutilia. Mandamus will not, in general issue to compel a respondent to do what is impossible in law and in fact.”

The learned Justice of Appeal then referred to the decision of this court in Banjoko Solanke v. Augustine Ajibola (1969) 1N.M.L.R. 253 and concluded:-

“It is my view that he (the learned Chief Judge) has exercised his discretion judiciously and the appellant has not advanced any stronger ground which should justify my interference with the said decision……”

(Underlining, brackets and contents supplied by me).

In his own judgment, Coker, JCA., made the following observations:-

(A) “………. and (I am) reluctantly in agreement with the conclusion that the appeal be dismissed on the sole ground that I am unable to find a precedent in which the court granted an Order of Mandamus restoring a civil servant to an office held at the pleasure of the crown……..” There was no allegation proved against the appellant concerning his work or conduct. The decision of Bada, J., declaring null and void the decision of the respondent in compulsorily retiring the appellant from the Public Service, in my view, has not been faulted. There was no suggestion that the post of Legal Adviser held by the appellant has been filled…….

(B) And while I agree with the decision ……. in R.v. Commissioner of Police of the Metropolis Ex parte Blackburn (read: R.v. Metropolis Police Commissioner ex parte Blackburn (1968) 2 Q.B. 118), that once a duty exists there should be a means of enforcing it , which includes by the prerogative order of Mandamus, I do not think the order of Mandamus can be employed to enforce the continued employment of the appellant in an office held at the pleasure of the Government…….”

(C) I consider it contemptuous on the part of the respondent as a public body, to refuse to implement a proper and legitimate order made by a competent court of the land . Notwithstanding, I hope that the respondent, which consists of good and honourable citizens would see it as its duty, respect for the rule of law and therefore show the good example by implementing the decision of Bada, J., ………..” (Underlining supplied by me).

The appellant appeals from the above decision of the Court of Appeal. My Lords, as already indicated in the opening paragraph of this judgment, the principal question for determination in this appeal is, indeed, of considerable importance; although not particularly of a complex nature, it is remarkably devoid of any direct judicial comment either local, or, so far as I know and allowing for inadequacy of reports of decided cases which has inhibited a thorough search, in most of the other common law countries. That notwithstanding, it seems to me that a careful application and evaluation of some of the well-known principles of law relating to the remedies by prerogative and declaratory orders, undoubtedly, provides sufficient guide and assistance to the answer which the Justice of the case in hand demands. It is well known that the principal purpose of mandamus is to remedy defects of justice; and although it is a discretionary remedy, courts of justice must always bear in mind this principal purpose of the order. With very great respect to their Lordships of the Court of Appeal and of the court of first instance, although “the court” – as they have observed in their judgments, following a passage set down in Halsbury Laws of England – “will, as a general rule, and in exercise of its discretion refuse an Order of Mandamus, when there is an alternative specific remedy at law which is not less convenient, beneficial and effective” see: [Halsbury Laws of England 3rd Edition Vol. II p. 107, paragraph 200; also Halsbury Laws 4th Edition Vol. I, p. 135, paragraph 126. NOTE, however, the underlining by me], mandamus “may issue in cases where although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual.” [see Halsbury Laws of England, 3rd Edition Vol. II, p.85, Paragraph 159, also Halsbury Laws of England 4th Edition Vol I, p.111, paragraph 89] the cases to which reference was made by the learned authors of Halsbury are, (a) in regard to the first proposition, inter alia, R.v. Registrar of Joint Stock Companies (1888) 21 Q.B.D. 131 and (b), in regard to the second proposition, inter alia. R.v. Thomas (1892) 1 Q.B. 426. In the case of The Registrar of Joint Stock Companies (supra) an application for a mandamus to compel the Registrar of Joint Stock Companies to file under Section 25 of the Companies Act, 1867, a contract which he had refused to file on the ground that it was insufficiently stamped was refused, as there was another appropriate and effective remedy i.e the proper way of questioning a Registrar’s refusal, in the circumstances, being by obtaining the opinion of the Commissioners of Inland Revenue, and, if necessary, appeal from their decisions to the High Court. In the case of Thomas (supra), Justices refused an application for the licence of a beer house and refused to state their grounds for refusal of the application; mandamus was issued for although there was a right of appeal and there may have been good grounds to exercise that right, the complete refusal of the Justices to state their grounds for refusal of the application stifled the right of the applicant towards the exercise of his alternative remedy by way of appeal. My Lords, I pause to recall the words of Lord Mansfield in R.v. Barker (1762) 3 Burr. 1265, at 1267:

“A mandamus” he said “is a prerogative writ; to the aid of which the subject is entitled, upon a proper case previously shown, to the satisfaction of the court. The original nature of the writ, and the end for which it is framed, direct upon what occasions it should be used. It was introduced to prevent disorder from a failure of justice, and defect of police. Therefore, it ought to be used upon all occasions where the law has established no specific remedy, and where in justice and good government there ought to be one…..” (See: 97 ER 823 at 824 – 5: Underlining supplied by me).

The order of mandamus, of course, only issues to a person or corporation requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty; but if the duty imposed by a statutory provision leaves a discretion in whom it is imposed as to the mode of performance, mandamus will not issue to compel performance of that duty in a specific way. In compelling performance of public duty by an inferior tribunal or a government functionary, the court will consider carefully whether the duty is of a judicial, quasi-judicial or of a merely ministerial nature. If the duty is of judicial, quasi-judicial nature, the order will issue only where there has been a refusal to perform that duty in any event, but not where it was performed one way in preference to another or in an alternative manner. If, however, the duty is of a ministerial character the order of mandamus will issue to compel the specific act to be done in the manner which appears to the court to be lawful. (See: John Shortt: on Informations, Mandamus and Prohibitions (1888 Edition) p. 276 at paragraph 256.) It is said that, as a legal term, the expression “ministerial” has no single fixed meaning. It is sometimes used to describe any duty the discharge of which does not involve any element of discretion or independent judgment; on some other occasions, it has been used, “more narrowly, to describe the issue of formal instructions, in consequence of a prior determination which may or may not be of a judicial character, that direct action be taken in relation to another’s person or property……” (See: de Smith Review of Administrative Action, 3rd Edition pp. 59-60).

Now, the Federal Public Service Commission, the respondent herein, is a creature of our constitution (see: Section 146 of the 1963 Constitution, Act No. 20 of 1963 – relevant to these proceedings), and by Section 147 (1) of the said Constitution, “power” is vested in the said Commission (the respondent herein) “to appoint persons to hold or act in offices in the public service of the Federation (including power to make appointments on promotion and transfer and to confirm appointments) and to dismiss and exercise disciplinary control over persons holding or acting in such office”; the proviso to the said sub-section allows for delegation by the respondent of any of its powers therein to any of its members or to any officer in the public service of the Federation. It is provided by Section 11, (1) (c) (i) of the Interpretation Act, No. (1) of 1964, that “where an enactment confers a power to appoint a person either to an office or to exercise any functions……….. the power includes:…..(c) power, exercisable in the manner and subject to the limitations and conditions (if any) applicable to the power to appoint – (i) to reappoint or reinstate him….”

The Civil Service Rules of the Federal Public Service govern conditions of service of Federal public servants and they are made pursuant to the powers conferred on the respondent by virtue of the Constitutional provisions in the 1963 Constitution; and the rules relevant to these proceedings were made in 1974, pursuant to the provisions of Section 160 (1) of the 1963 Constitution, Act No. 20 of 1963. These Rules, therefore, in my view, have Constitutional force and they invest the public servant over whom they prevail, a legal status; a status which makes his relationship with the respondent and the government although one of master and servant certainly beyond the ordinary or mere master and servant relationship. Under these Rules (i.e The 1974 Civil Service Rules which, as I already pointed out, have statutory force and, therefore, ought to be “judicially noticed”), paragraphs 04107 to 04121 provide the procedure which must be adopted in the removal or retirement from service, as well as the general disciplining, of public servants in the established pensionable cadre. In particular, paragraph 04201 defines “misconduct” in respect of which investigation was conducted in relation to matters, allegedly, arising between the appellant and the woman, Iyabo Olorunkoya, who was convicted for importing dangerous drugs into the United Kingdom. Although, pursuant to the said investigation the appellant was retired from the public service by the respondent, the High Court (Bada, J.,) declared the said retirement “invalid, null and void”. (Exhibit “D” in these proceedings refers.) There exists, therefore, a declaratory judgment in a suit to which the respondent was a party and before whom a court of competent jurisdiction duly exercising its supervisory powers, had made a pronouncement declaring its action invalid; and the effect of which pronouncement is that the appellant was always, at all times material to the proceedings in Exhibit “D” aforesaid, and still is, an officer in the Federal Public Service.

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It was submitted to, and, indeed, held by both the High Court and the Court of Appeal, that the principle of English law which precludes mandamus from issuing against the Crown and servants of the Crown, applies in this country in regard to public officers in the established and pensionable cadre of the Federal Government Service (see the portions marked “D” and “E” in the judgment of the High Court; and marked “A” in the judgment of Uthman Mohammed, JCA., in the Court of Appeal). Indeed it would appear from the lead judgment of the Appeal Court that public servants in the established and pensionable cadre of The Federal Government Service are regarded as employed at the pleasure of the Federal Government. I shudder to think that this is so; but with great respect to their Lordships both in the Court of Appeal and in the High Court, I am of the view that this cannot be correct. As I have already pointed out the Civil Service Rules to which reference has already been made invests in these public servants a legal status and they can be properly or legally removed only as provided by the said Rules. Again, the principle of law which precludes mandamus from issuing against the Crown has historical justification in English legal history and, in my view, there is no basis for its application in this country (a Republic) in respect of the respondent who, being a creature of statute, can sue and can be sued; there being no provision to the contrary, express or implied, in any enactment in our statute books.

My Lords, having reached the conclusion that mandamus can issue in this country against the respondent, I now propose to consider whether it can issue in the circumstances of this case. Assuming that the appellant has a right to be enforced or protected by mandamus, and assuming further that the respondent, in the circumstances has a duty to protect or enforce that right, the Court of Appeal (see the passage within the column marked “C” in the lead judgment ) has refused to issue the order on the legal maxim, Lex non cogit ad inutilia. That maxim sometimes expressed as lex neminem cogit ad vana seu inutilia – meaning, the law will not force any one to do a thing in vain and fruitless – is akin to the Roman law principle nemo tenetur ad impossibilia and derives from common sense and “natural equity”, and no one doubts that it is applicable in our legal system. This court has on a number of occasions warned against decisions of courts being founded on any ground in respect of which it has neither received arguments from or on behalf of the litigants before them nor even raised by or for the parties or either of them. (see: Registered Trustees of the Apostolic Church, Lagos Area vs. Rahman Akindele (1967) 1 All N.L.R. 110 at 112 per Brett Ag. CJN. (2) Ogiamien v. Ogiamien (1967) N.M.L.R. 245 at 248-9 per Ademola CJN. (3) Augusta Cole v. Sergius Martins and Anor. (1968) NMLR 216 at 218 per Ian Lewis, JSC. (4) Shittu Adeosun v. Lawani Babalola and Anor. (1972) 1 All NLR (Pt.II) at 126 per Udoma, JSC.)

There is no evidence that the office held by the appellant prior to his purported removal and retirement has been filled nor is the presumption (selected by the Court of Appeal) that “under normal civil service conditions, that the post has been filled,” the only reasonable one in the circumstances; there is equally a presumption that some other officer of a lower rank may be merely “acting in that office”. Be that as it may, it is, in my view, not right in the circumstances of this case, for a court to have used such a presumption, ex proprio motu, as a basis for declining exercise of its discretion in favour of an award of the order sought.

My Lords, the matter, however, does not rest there. “Coercion” we are told “is not always necessary to ensure that the law is obeyed. Litigants will often be content to ascertain their legal rights and duties safe in the knowledge that, once the law is determined, it will be observed. This is particularly true of public bodies, which cannot withstand the public criticism which, normally, should follow upon disregard of their legal obligations” (see: Griffith and Street: Administrative Law 4th Edition (1967) at p. 241). “Legal obligations” to which reference is made in the foregoing quotation, of course, include obligation to maintain the rule of law, as well as, not to be in contempt of decisions of competent courts; and I agree with Coker, JCA., (whose judgment I set out earlier on – see the relevant portion, margin, “C”)., that it is, indeed, “contemptuous” on the part of the respondent as a public body to refuse to implement a declaratory order made in its presence by a competent court in a suit to which it was a party. Admittedly, there is no mandatory order in Exhibit “D” but it will, in my view, be naive of the respondent to- as it were- shut its eyes to the clear implication of an order such as was made in Exhibit “D” aforesaid. There are, however, other questions which need to be answered these are: (1) Is it right and proper that the court should indirectly decree a specific performance of the contract between the appellant and the respondent (2) Has the respondent, in the circumstances, a duty to restore the appellant to his former post

The question was raised in the course of argument before us whether the respondent has a duty to do what is required of it under Section 147 aforesaid (i.e. Act 20 of 1963) My Lords, I have earlier endeavoured to show that the power of the respondent under Section 147 of Act No. 20 of 1963 includes power to “re-appoint” and “re-instate”. Now, there is no doubt that where power is vested in a body to do certain things, there is prima facie a discretion on the part of that body to do so. Where, however, as here, there is power to act ministerially (as opposed to judicially) then although, ex facie, there is a discretion, it is a discretion to act one way or the other; in such a case there is a duty to exercise the discretion. (see also Lord Hardwicke, CJ., in R. v. Bishop of Lichfield (1734) 7 Mod. 24; also 87 ER 1200 at 1200 also see Shortt: on Information, Mandamus and Prohibitions at p. 276; paragraph 256-257); Griffith and Street op. cit. 239. In the words of Earl Cairns, LC.

“……….But there may be something in the nature of the things empowered to be done, something in the nature of which it is to be done, something in the conditions under which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed, to exercise that power when called upon to do so. Whether the power is one coupled with a duty such as I have described is a question which, according to our system of law, speaking generally, it falls to the court of Queen’s Bench to decide on an application for mandamus………..” (Underlining supplied by me )

See Julius v. Lord Bishop of Oxford (1879-80) L.R.5 App. Cases 214 at 222-23).

There is, therefore, by the combined operation of Section 147 of Act No. 20 of 1963 and Section 11 of the Interpretation Act No. 1 of 1964, prima facie a “discretion” to reinstate to, retain in, and remove from, service a public officer; but in the instant case, the court has by Exhibit “D” aforesaid precluded the exercise of “discretion” to remove the appellant from service, unless and until proceedings are properly taken and completed under the procedure laid down in the 1974 Civil Service Rules. Again, it seems to me that Exhibit “D” invests the appellant with “a legal right” to remain in office and carry out his public duties as a civil servant; and one of the characteristics of a legal right is-in the words of Salmond – that “it avails against a person upon whom lies the correlative duty. He may be described as the person bound or as the subject of the duty or as the person of incidence” (see Salmond on Jurisprudence 12th Edition (1966) p. 221, paragraph 41 (item (2) ).

The judgment of Bada, J., impliedly confers on the appellant a right to be placed de facto in his original position i.e a right to be reinstated; for, although his termination and retirement were declared “invalid null and void” and so, in law, he was never legally terminated or retired from his employment, there had been a de facto termination or removal from office. In the words of Tucker, J., “reinstatement involves putting the specified person back in law and in fact in the same position as he occupied in the undertaking before the employer terminated his employment” (see: Hodge v. Ultra Electric Ltd. (1943) 1 KB 462 at 466); and “the natural and primary meaning of to ‘reinstate’ as applied to a man who has been dismissed (ex hypothesi without justification) is to replace him in the position from which he was dismissed, and so to restore the status quo ante the dismissal” (see; William Dixon Ltd. v. Patterson (1943) S.C. (J) 78 per Lord Copper at 85) Emphasis attached by me). In the event, I hold the view that the appellant has right of reinstatement to his former position and the respondent has the correlative duty by the combined operation of Section 147 of Act 20 of 1963 and Section 11 of Act No. 1 of 1964 to replace the appellant in the position he occupied before events which culminated in Exhibit “D” aforesaid, and so to restore the status qou ante his purported retirement.

How is he (the appellant) best to achieve this Should he pray in aid the ordinary civil law remedies The answer to this question is to be found in the judgment of Lord Mansfield in R. Blooer: In that case, an order nisi for mandamus was issued against Samuel Blooer commanding him to restore William Langley, who had been removed from office and locked out from the chapel of which he had been in office and possession for eleven weeks as curate. The argument presented on behalf of Mr. Blooer, inter alia, was that Langley had other remedies available to him at law; he could, it was argued, bring an action for ejectment or trespass. In his judgment, lord Mansfield observed.

“………3rd objection – That, even supposing him (William Langley) to have a title, and to have been in possession, and turned out of it; yet he ought not to be assisted by way of mandamus, but to be left to his ordinary legal remedy, by ejectment or an action of trespass. ANSWER: A mandamus to restore is the true specific remedy where a person is wrongfully dispossessed of any office or function which draws after it temporal rights; in all cases where the established course of law has not provided a specific remedy by another form of proceedings:…….” (See: Rex v. Blooer (1760) 2 Burr. 1043 at 1045; also 97 E.R. 697 at 698: Underlining supplied by me).

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On the same point, Shortt, observes that a mandamus to restore actual possession of an office is, however, granted only where the office has already had actual possession of it: “if he has not had actual possession of it, a mandamus will only be granted to give him legal possession of it, not actual possession” (see Shortt Op. cit.p.302 paragraph 283 to paragraph 284). And on this same principle it was said: “As to the main point, I think a mandamus is very proper to admit a man to the exercise of his office; and that if a common council-man, after swearing in, should be denied admission into the council room he might have a writ (of mandamus) for that purpose…… ” (see: Eyre Justice in Dominus Rex v. Decan’ et Capitul’Dublin (1792) 1 Strange 536 at 539; 93 E.R. 685 at 686. Brackets and underlining supplied).

It is said in the course of argument that the appellant should have asked for a positive declaratory relief that the respondent should retain him in office. For my part, I see no substance in this argument; Exhibit “D” has already pronounced in his favour (a) positively that his retirement was invalid; and therefore, (b) that he still has a legal right to remain in office. I, therefore, find myself in full agreement with the views expressed by the Supreme Court of India in State of Madhya Pradesh v. Bhailal Bhai and Ors. (1964) A.I.R. (S.C.) 1007; at 1010 to 1011, the court observes:

“A portion of the tax assessed has been already paid by the petitioners. It cannot be disputed that this payment was made under a mistake within S. 72 of the Indian Contract Act and so the government to whom the payment has been made by mistake must in law repay it. The question is whether the relief of repayment has to be sought by the tax payer by an action (separate action) in a civil court or whether such an order can be made by the High Court in exercise of its jurisdiction under Article 226 of the Constitution” (i.e jurisdiction to award certiorari; prohibition and mandamus)…….. “…………After the levy of the sales tax on such transactions was held to be ultra vires by the High Court of Allahabad the respondent asked for refund of the tax and when that was refused he applied to the High Court…………… for a writ of certiorari for quashing the assessment orders and a writ of mandamus requiring the appellants to refund the amount illegally collected. The order made in this case by the High Court for refund was affirmed by this Court on appeal………”

We see no reason to think that the High Courts have not got this power. If a right has been infringed – whether a fundamental right or a statutory right – and the aggrieved party comes to the court for enforcement of the right it will not be given complete relief if the court merely declares the existence of such right or the fact that the existing right has been infringed. Where there has been only a threat to infringe the right, an order commanding the government or other statutory authority not to take action contemplated would be sufficient. It has been held by this court that where there has been a threat only and the right has not been actually infringed …………. the courts would give necessary relief by making an order in the nature of an injunction. It will hardly be reasonable to say that while the court will grant relief by such command in the nature of an order of injunction where the invasion of a right has been merely threatened the court must still refuse, where the right has been actually invaded, to give consequential relief and content itself with merely a declaration that the right exists and has been invaded or with merely quashing the illegal order made.

For the (above) reason………… we are clearly of the opinion that the High Courts have power for the purpose of enforcement of fundamental rights and statutory rights to give consequential relief by ordering repayment (i.e. mandamus to reply to Government) of the money realised by the Government without the authority of law…..”

(See: Das Gupta. J. in State of Madhya Pradesh v. Bhailal Bhai and Ors. (1964) A.I.R. (S.C.) 1007 at 1010-1011) (Brackets and contents as well as underlining supplied by me).

And in a recent case in England the Court of Appeal has not only declared a dismissal of a servant invalid but also granted a mandatory injunction restraining the master (i.e employer) from treating the contract (one which was not an ordinary master and servant relationship) as at an end. In that case Lord Denning, M. R. said:

“……….Accordingly the servant cannot claim specific performance of the contract of employment……… I would emphasise, however, that this is the consequence of the ordinary course of things. This rule is not inflexible. It permits of exceptions. The court can in a proper case grant a declaration that the relationship still subsists and an injunction to stop the master treating it as at an end…….” (See Hill v. C.A. Persons Ltd. (1972) Ch. 305 per Lord Denning, M.R. at 314) (Underlining supplied).

An injunction and, in particular, one in the nature of that issued in the particular circumstances of the case of Hill v. Parsons (supra) is, of course, not far away in form from a mandamus. Before leaving this aspect of the matter I would like to mention, in passing, that Professor Kenneth Culp Davis also considers that mandamus might also be “appropriate to compel re-instatement” of an employee by an employer – (See: Davis: Administrative Law treatise (1958) Vol. 3 paragraph 24. 05 note 133 at p. 423).

It was submitted to us, on behalf of the respondent, that mandamus never issues to preserve or enforce a personal or a private (as opposed to a public) right. That submission, with respect to learned counsel for the respondent, seems to me a very wrong approach to the issue. The way to look at the point in issue is this: for a mandamus to be issued, the law is that “there must be a legal right on the part of the applicant to the performance, by the person or body against whom he applies, of some duty of a public and nor merely private character” (see Shortt: op. cit. paragraph 228 at page 248). The legal right may be of a personal (i.e. private) or public nature. In my judgment, the touchstone on this topic is to be found in the statement of Lord Ellenborough, CJ., in R.v. Archbishop of Canterbury 8 East 22, which I respectfully adopt, that “there ought in all cases to be a specific legal right as well as want of a specific legal remedy, in order to found an application for a mandamus.” As has earlier on been shown in this judgment there is vested in the appellant, by virtue of Exhibit “D in these proceedings, a specific legal right to re-instatement in his post in the Federal Public Service which the respondent has a duty to protect and render effectual.

My Lords, having reached the conclusion that there is no basis for application in this country of the common-law principle that the prerogative order of mandamus does not, generally, issue against the Crown or its servants in their capacity as crown servants; and having also reached the conclusion that a public servant in the established pensionable cadre of the Federal Public Service has a legal status and, ex hypothesi, a right to remain in service until properly removed in accordance with the Civil Service Rules applicable to him, it follows, therefore, that by virtue of the decision in Exhibit “D” in these proceedings, the applicant has a legal right to be properly re-instated and that the respondent has the correlative duty, to see that he is duly re-instated.

Accordingly, I would allow this appeal and order that mandamus should issue against the respondent.This appeal is allowed and it is hereby, ordered that the judgments of both the High Court Lagos State in Suit LD/230/1978 dated the 29th day of March, 1979 as well as the judgment of the Federal Court of Appeal in Suit FCA/L/62/79 dated the 12th day of June, 1980, be and are hereby set aside. In substitution therefore, it is hereby ordered that the prerogative Order of Mandamus should issue against the respondent ordering the respondent to issue the necessary directive duly reinstating the appellant in his post of Legal Adviser in the federal Ministry of Justice; and that this shall be the judgment of the High Court of Lagos State in Suit LD/230/78. The appellant shall have costs in this court assessed at N372 whereof N72.00 represents his out of pocket expenses, and costs in the Federal Court of Appeal assessed at N200 and, in the High Court, at N200.00. I agree with the order proposed by My Lord Sowemimo, JSC., that the respondent should re-instate the appellant on or before the 16th day of February 1981, and that copies of this judgment be served on the Attorney General of the Federation as well as the Solicitor- General in the Federal Ministry of Justice.

G. S. SOWEMIMO, J.S.C.: This appeal is from a judgment of the Federal Court of Appeal, Lagos, in which the appellant was refused an order of mandamus for reasons which were never argued before that court. I am in complete agreement with the judgment of my brother Idigbe, JSC. and hereby order, in addition to the order which is contained in his judgment that the respondent shall reinstate the appellant as Legal Adviser in the Federal Ministry of Justice and issue the necessary directive to give effect to this reinstatement on or before the 16th of February, 1981. I also order that costs assessed at N372 be awarded in favour of the appellant against the respondent. It is my earnest hope that the respondent, as an agent of the Federal Government of Nigeria, which believes in the rule of law, will carry out the directive of this court. A copy each of this judgment and order shall be served on the Attorney-General of the Federation and Solicitor-General of the Federation and Permanent Secretary of the Federal Ministry of Justice. The appeal of the appellant is hereby allowed and the judgment of the High Court, Lagos State and Federal Court of Appeal, Lagos are hereby set aside.

M. BELLO, J.S.C.: I have had the benefit of reading the judgment now delivered by my brother Idigbe, JSC. I entirely agree.

K. ESO, J.S.C.: I have had the advantage of reading in draft the judgment just delivered by my learned brother, my Lord C. Idigbe, JSC.

I agree that this is an appropriate case for the issuance of an order of Mandamus. My learned brother has examined all the issues involved and I agree entirely with his examination. I have nothing to add.

A. NNAMANI, J.S.C.: I have had the advantage of reading in draft the judgment just delivered by my learned brother, my Lord IDIGBE, JSC. I entirely agree with him that this appeal ought to be allowed. The appeal is accordingly allowed. I am also in complete agreement with the orders made in his said judgment and the judgment of the presiding Justice my Lord Sowemimo, JSC


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