Christian S. I. Iwuji V. Federal Commissioner For Establishment & Anor (1985)

LawGlobal-Hub Lead Judgment Report

ESO, J.S.C. 

The facts in this case are not in dispute. They are in deed mostly documentary. What is in dispute, as would be seen hereafter, is the material which the court of trial should have relied upon, in the determination of the issue placed before it. Two important and distinct declaratory reliefs were sought though both were geared towards the same end result and they were –

(1) that the exercise of the discretionary power of the Federal Commissioner for Establishments under his Ministry Circular No. 1 of 1964 and also the Rules for condonation of break-in-service which were attached to the Circular which Rules were made pursuant to the Pensions (Amendment Regulations. 1963, amending Regulation 15 of the Pensions Act is null and void. The exercise of the discretion was conveyed to the Appellant who was the Plaintiff in the court of first instance in two letters – No. FR.10789/174 of 25th February, 1977 and No. FR. 10789/179 of

11th March, 1977. The ground for seeking the declaration was that the Commissioner took into account irrelevant and extraneous factors which made: his decision to be unreasonable;

(2) that having regard to the Establishment Circular and the Rules for condonation aforesaid the Appellant is entitled to condonation of break- in-his service occasioned by his resignation to study law abroad.

The two letters which were referred to in the declaratory suit are relevant and they are reproduced hereunder-

(1) FEDERAL MINISTRY OF ESTABLISHMENT

PERMANENT SECRETARY’S OFFICE

P.M.B. NO. 12520 Ref.: FR 10798/174

Telegrams FEDESTABS Date: 25th February. 1977

Telephone: 24998.

Sir,

Your letter reference No.IC/CSII/1/31 of 24th November, 1976 has been referred to this Ministry by the Secretary to the Federal Military Government for consideration. I regret that as you had been informed on several occasions during discussions with me, there are no grounds whatsoever on which the Federal Commissioner for Establishments may he requested to exercise his discretion in your favour and condone the break in your service occasioned by your absenting yourself from duty without leave. As you are aware, the records in this Ministry show that as a result of your so absenting yourself from duty without leave, the Government of the then East Central State terminated your appointment with effect from 27th December, 1970. Subsequently, in January 1974, that Government cancelled the notice of the termination of your appointment and accepted your resignation with effect from 27th December, 1970. Our contention is that the circumstances of your leaving the service in 1970 do not qualify you under our existing rules for condonation of the break in your service. Although the original decision of the East Central State Government contained in the letter No. PS/1/4/61 of 10th December, 1971 to terminate your appointment for “irresponsibly abandoning your post” was withdrawn in letter No.PS/1/4/68 of 14th January, 1974 and you were deemed to have resigned with effect from the date of your absence i.e. 27th December, 1970 it is our view that in abandoning your post without having previously obtained from the appropriate authority approval of your application for study leave without pay, you were prepared to accept the consequences of your action. In the circumstances, we are unable to find any merit in your application for a condonation of the break in your service arising from your deliberate act of absenting yourself from duty without leave.

Yours faithfully,