Dr. Akinlade Ore Falomo Vs Lagos State Public Service Commission (1977)
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This appeal is from the judgment of the High Court of Lagos State holden in Lagos (Adefarasin, Ag. CJ., as he then was) dated the 13th day of November, 1974 by which he dismissed the appellant’s application for an order of certiorari to remove into the High Court of Lagos State for the purpose of being quashed, the decision of the Lagos State Public Service Commission dismissing the applicant, the appellant herein (Dr. Akinlade Ore Falomo), from the public service of the Lagos state.
Briefly, the material facts which form the background to the said application by appellant – as they appear from a number of affidavits and documents exhibited in the court below and from the oral testimony received in that court and which the learned trial Judge accepted – are as follows: The appellant was at all time material to the proceedings in the lower court employed in the Public Service of Lagos State and was posted to the Island Maternity Hospital Lagos as an “unconfirmed” Medical Officer Grade II (i.e., he was employed in that capacity on a month to month basis).Prior to the incident on account of which he (the appellant) was dismissed by the Public Service Commission, the respondents herein, there had been series of complaints by his immediate Superior Officers some of which had been brought to his notice and in respect of which he made representations to the immediate Head of his Department – the Permanent Secretary in the Lagos State Ministry of Health. Some of these complaints concern allegations of gross acts of professional misconduct and others relate to alleged criminal offences. However, the material complaint leading to his dismissal from service was that he was absent from duty without permission (i.e. without leave or any cause) between the 15th and the 22nd day of April, 1974. While still absent from duty, the appellant on the 23rd day of April, 1974, sent to his Department a medical certificate purporting to “excuse him from duty” for a period of seven days beginning from the 23rd day of April, 1974.
During the period between 15th and 22nd April, 1974, the appellant was seen at a meeting and public seminar held at Enugu in the then East Central State. There were some unsuccessful efforts made by his immediate “boss”, the medical consultant to whom he was immediately subordinated, to obtain from him some explanation for his conduct; in this connection, a note was addressed to him inviting his explanation for his absence from duty. At first, he refused to accept the note but later, when subsequent notes were sent to him inviting his explanation he could not be found to be served with these notes.
The appellant, not being on duty, could not be found in the premises of the hospital and all efforts to find him in his normal place of abode failed. In the circumstances, the Head of the Department – the permanent secretary in the Lagos State Ministry sent a very detailed report supported with written complaints from other doctors who normally worked with the appellant in the Lagos Island Maternity – including a report from the Chief Consultant to whom the appellant was subordinated – to the respondents who, by their letter of 13th May, 1974, addressed to him, dismissed the appellant from the public service of Lagos State; parts of that letter (exhibited as Exhibit 11) read:-
“Dismissal from Service I am directed to inform you that contrary to Regulation 52 of the Lagos State Public Service Commission (Proceedings) Edict No. 1 of 1969 and consequent upon the report made against you in this particular regard, the Commission has found you guilty of the offence of absenting yourself from duty without leave or reasonable cause from “the 15th to the 22nd of April, 1974, the penalty of which is dismissal. You are therefore dismissed from the Lagos State Public Service with effect from the day following the date of your receipt of this letter. (Sgd) L. OSIKOMAIYA Secretary”.
On receipt of this letter (Exhibit 11), the appellant in exercise of his right under the proviso to Regulation 52 of the Public Service Commission (Proceedings), Edict No.1 of 1969 (hereinafter referred to as the “Public Services Commission Edict”) by a letter of 20th May, 1974, (Exhibit OSH 4 in these proceedings), addressed to the Secretary to the Public Service Commissions denied the accusation and allegation that he was absent from duty during the relevant period, adding that he was never asked for his explanation for being absent from duty, and asked that “disciplinary proceedings” in respect of his alleged absence from duty be instituted without delay;he added that he “was fully prepared with facts and figure to prove beyond reasonable doubt that at all material times” he was on duty. Finally, he asked in Exhibit OSH 4 that “the proviso contained in regulation 52 of the Public service Commission (Proceedings) Edict No.1 of 1969 be invoked” in his favour and that the order “for dismissal be revoked”. Without waiting for the outcome of his letter of 20th May, 1974, (Exhibit OSH 4) the appellant commenced these proceedings.
In the course of his judgment, the learned Acting Chief Judge of the High Court of Lagos State made the following observation: “…………………. It seems to me that the provision of Section 52 of the Edict is enacted to cover the type of case in which the officer is absent from his duty and cannot be found in which case his employers have responsibility for acting swiftly; the power conferred here seems to me to be in the nature of an emergency power which dispenses with the requirement for calling for the explanation of the employee especially where he cannot, with diligence be found.
The language of the proviso to the section makes it plain that the employee still has an opportunity, at a later stage, to explain the circumstances of his absence and his failure to inform employers of his whereabout. In such event a lesser punishment than dismissal may be imposed …………….. ……………..Counsel urged me to hold that even under Regulation – 52 the respondent had a responsibility to call for explanation of the applicant before dismissing him. I do not doubt that the respondents had such a responsibility if the servant eventually turns up and seeks an opportunity to explain the circumstances leading to his absence from duty without leave.
Nonetheless I am of the firm view that in the circumstances in which a public servant absents himself without cause from duty and cannot be found, the Public Service Commission has no responsibility to seek him first and inquire into the reasons for his absence. The Commission has the clear duty to dismiss him as it has done in this case but such dismissal would not be irrevocable ……………………………If this had been a straight forward case of dismissal for (other type of ) serious misconduct I would have been able to hold that the Public Service Commission had a duty to satisfy the requirements of the principles of natural justice and to have first obtained the explanation of the officer before deciding (to dismiss him) …………………” ).
We pause, however, to observe that in the foregoing passage, the use of the words “section” and “Regulation” with regard to the Public Service Commission Edict, although, somewhat indiscriminate, they, in each case, refer to Regulation 52 of that Edict. A number of grounds of appeal were filed and argued before us, in support of this appeal.
The sum of the arguments and submissions on behalf of the appellant is this: The exercise of the powers of the Public Service Commission (hereinafter referred to as “the Commission”) under Regulation 52 of the Public Service Commission Edict is a quasi – judicial one and that the Commission was not only under a duty to observe the principle of audi alteram partem under the Rules of Natural Justice, it was, also bound, to observe the said principle before dismissing the appellant from the Public Service of the Lagos State; since it failed to do so, the order of certiorari must issue to quash the said order of dismissal of the appellant by the Commission. We think it is necessary at this stage to set out in detail the relevant law which brough the Commission into existence and, also, the relevant powers of the Commission under the Public Service Commission Edict.
The Commission came into existence by virtue of Section 4 of the Lagos State (Interim Provisions) Decree 1968, No. 13 of 1968 and the powers of the said Commission are clearly stated in Section 5 of the said Decree; and both of these read:- “4(1) There shall be a Public Service for Lagos State, which shall consist of a Chairman and not less than two no more than four other members. 5 (1) Power to appoint persons to hold or act in offices in the public service of Lagos State (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 shall, subject to Section 6 of this Decree in respect of permanent secretaries, vest in the Public Service Commission of the State…………………. Regulations 55 and 58 make detailed provisions for the procedure for the dismissal of public officers on grounds of misconduct alleged against them and these clearly require that not only must the specific charges made against them be brought specifically to their notice and attention, they must also be given a chance of hearing (i.e., to make explanations and also defend themselves against the charges, if they so desire) before they can be dismissed on grounds of such alleged misconduct.
Under these provisions aforesaid these officers must be allowed access to any documents containing allegations against them and they have a right to examine witnesses, if any, who give oral testimony against them before any decision to dismiss or penalise them in any way as a result of such allegation of misconduct can be made. Regulation 52, however, makes special provision for allegation of the misconduct of being absent from duty without leave or reasonable cause; and it reads:- “Without prejudice to the power to institute disciplinary proceedings in respect of any absence from duty without leave or reasonable cause, where a public officer is absent from duty without leave or reasonable cause the disciplinary authority may dismiss him without following the procedure prescribed in Regulation55 or 58.
Provided that if the officer can later satisfy the disciplinary authority that the circumstances of his absence, and of any failure to inform his department of his whereabouts, do not justify his dismissal, that authority may, without prejudice to the power to institute disciplinary PROCEEDINGS in respect of the absence with a view to lesser punishment than dismissal, REVOKE the DISMISSAL” (Capitals and underlining supplied by this court). In Regulation 3 of the Public Service Commission Edict, the expression “disciplinary authority” is defined as meaning “the authority, in whom power to dismiss and exercise disciplinary control over a public officer is for the time being vested by the provisions of Section 5(1) of the Lagos State (Interim Provisions) Decree 1968 or by any delegation of the said powers in accordance with those provisions.” There is no doubt that Regulation52 is a special provision for dealing with public officers in the Lagos State Public Service Commission who absent themselves from duty.
While it empowers the Commission with powers to institute disciplinary proceedings under Regulations 55 and 58, in cases of the specific misconduct of absence from duty without leave or reasonable cause (e.g., sudden illness) – as in the case of all other species of misconduct – it gives the disciplinary authority (which is the Commission), in addition a discretion of dismissing a public officer for being absent from duty without leave or reasonable cause without prior exercise of any disciplinary proceedings under Regulations 55 and 58 provided, however, that such proceedings can always later be instituted at the request of the public officer concerned. We shall later, in this judgment, examine more closely the provisions of this particular regulation and their effect on the submissions which learned counsel for the appellant has, with considerable candour, urged upon us.
In the realm of administrative law it is settled by a long line of cases that two cardinal principles – namely, that no person shall be condemned unheard and that none shall be a Judge in his own cause – are implicit in the concept of fair adjudication by any authority which has any duty to act judicially. In recent times, however, the courts exercising supervisory authority have taken the view that it is no longer necessary, in order to establish that a duty to act judicially applies to performance of a particular exercise by an administrative body, person or tribunal, to show that the exercise is essentially or analytically of a judicial character (see Lord Reid in Ridge v. Baldwin (1964) AC 40 at 75-76), or that it involves the determination of a lis inter partes.
“It is enough if it (i.e. the administrative body) is exercising judicial functions in the sense that it has to decide on the materials before it between an allegation and a defence ……………..The modern concept is that the duty placed on such a body is to act fairly in all such cases. No labels such as ‘judicially’ or ‘quasi-judicially’ are (any longer) necessary as they tend to confuse”. (see Athanasius Kalada Hard v. the Military Governor Rivers State and Ors (1976) 11 SC.211 at 238). But such a duty on the part of an administrative body to act judicially or fairly – in the sense of applying the principle of audi alteram partem – may be excluded, expressly or by necessary implication, by statute.
Where, however, statutory provisions exclude the need for prior hearing of the party whose rights are to be affected by the decision of an administrative body, the courts have in such cases held that if, in addition, the statute contains provisions for an administrative appeal from, or judicial review on, the merits of the decision of that body these are sufficient to negate the existence of any implied duty on the part of such a body (i.e. administrative body) to apply the audi alteram partem rule before the original decision is made. In the case of Vestry of St. James and St. John, Clerkenwell v. Feary (1890) 24 QBD 703, a local statute provided that every house must be provided with a water-closet with certain specified fittings.
The Vestry could give notice in writing ordering a house holder to comply with the provision. There was a right of appeal to the London Country Council against such an order. An order was served on the respondent requiring him to furnish a proper water-closet for his house; he ignored it. The vestry summoned him for failing to comply with it, but the summons was dismissed by the magistrate.
The vestry appealed. A strong court of the Divisional Court of the Queen’s Bench Division (Lord Coleridge CJ., and Lord Esher, MR.,) before whom it was strenuously argued that the vestry was bound to hear the respondent before making the order rejected the argument (the like of which has been strenuously urged upon us in the instant appeal). Lord Esher, MR., said (at pp 711 and 712): “Then it is contended that the vestry is judicial body and that they were bound to hear the respondent in a judicial manner; but there are no words in the statute which entitled us to hold that the vestry is to act as a court. They may give notice of a hearing, when the party may be heared, as Byles, J., pointed out in Cooper v. Wandsworth District Board of Works ((1863), 14 CB, (NS) 180; but he goes on to say there is another way in which they can proceed, namely, by giving notice of the order.
The Vestry must give notice of the order because there is a right of appeal within seven days. The party affected by the order can object to it, or has a right of appeal to the County Council. If the magistrate decided this case on the ground that the vestry were bound to hear the respondent judicially, I am of the opinion that his decision was wrong ……………….”
In the case of Vestry of St. James and St. John Clerkenswell (supra), the court was of the view that the provision for statutory appeal negated the existence of implied duty on the part of the Vestry to first hear the party to be affected by their decision before giving such a decision, because in the view of the court, the provision for appeal by the party against such a decision, by implication, afforded opportunity for the application of the audi alteram partem rule of the principles of natural justice.
Again, the same view was taken by the Supreme Court of Queensland in the case of the Literature Board of Review v. H.M.H. Publishing Company Inc., Ex parte H.M.H. Publishing Company Inc. (1964) Queensland Report 26. The facts and the judgment of the full court in that case illustrate with marked clarity the view we have earlier on expressed (that although by the rule of natural justice, it is always expected of administrative bodies and/or tribunals in the exercise of a function by which their decision might affect the rights of individuals to give such individual a hearing, prior to their decision, and failure to comply with this principle of natural justice will always lend to such a decision being quashed, this rule of natural justice is subject always to sufficient indication of an intention of the legislature to the contrary) that we think it is desirable to set out in extenso in this judgment the facts and the essential portions of the judgment in that case.
That case deals with the “Objectionable Literature Act of Queensland” (Australia) of 1954, Section 5 whereof defines the term “objectionable” thus:- “In relation to literature or any part of any literature regard being had to the nature thereof, the persons, classes of persons, any age group to or among whom that literature is or is intended to be distributed or likely to be distributed and the tendency of that literature or part to deprive or corrupt any such person ………………………… objectionable for that it ………………. (i) unduly emphasises matters of sex, horror, crime cruelty or violence; or (ii) is blasphemous, indecent, obscene, or likely to be injurious to morality, or (iii) is likely to encourage depravity, public disorder ………………………………. The head note to the report states as follows:- Pursuant to Section 10 of the Act, the Literature Board of Review made an order prohibiting the distribution in Queensland of the periodical “Playboy”. This magazine was expensively produced being well printed on good quality paper. It purported to be addressed in the main to intelligent youngmen of the sophisticated type. It contained fiction, some of a high standard but some having its theme devoted to sexual matters, articles on various topics, and interviews with interesting personalities. There was also high class advertisements ……… jokes mostly about sex, photography of the undraped female form …………….. and a variety of report and comments on sexual matters.
Held, by the full court that the magazine was “objectionable” within the meaning of that term as defined in the Act in that it unduly emphasized matters of sex, there being a palpable over presentment of such matters……………………… Held further that the Board’s failure to give notice to the publisher of the proceeding before it, and to allow publisher the opportunity of being heard prior to the Board making its order, did not amout to a denial of natural justice BECAUSE of the appeal provisions in the Act.” (Capitals and underlining supplied).
In the course of his judgment Mansfield, CJ., made the following observations:- “In the The Commissioner of Police v. Tanos (1958) 98 CLR 383 at 395, Dixon C. J. Webb, J., in a joint judgment said: ‘It is deep-rooted principle of the law that before any one can be punished or prejudiced in his person or property by any judicial or quasi ‘judicial proceeding he must be afforded an adequate opportunity of being heard. In Cooper v. Wandsworth Board of Works (supra). Byles, J. said that a long course of ‘authority established that although there are not positive words in a statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislatur’……………….. The general principle has been restated in this court with a citation of authority in Delta Properties Pty Ltd. v Brisbane City Council (1955)95 CLR 11 at p. 18……………….. But the rule is subject to a sufficient indication of an intention of the Legislature to the contrary. Such an intention is not to be assumed nor is it to be spelled out from indirect references, uncertain references or equivocal considerations. The intention must satisfactorily appear from express words of plain intendment’. “It is therefore, necessary to see whether there is any evidence in the Act evincing an intention that notice to the interested parties is not required prior to the making of the order by the Board.
“During the course of the hearing of this appeal we were referred to a number of authorities and particularly Cooper v. The Board of Works of Wandsworth District (supra); Vestry of St. James and St. John, Clerkenswell v Feary (supra). In my view they establish inter alia the principle that when an order is made which affects the proprietary rights of individuals and no opportunity is given prior to the making of the order to the affected party to show cause why the order should not be made AND THE ORDER IS FINAL, it will be held to be contrary to natural justice.”
“If on the other hand, a reasonable opportunity is given to the affected party after the order is made and before the proprietary right is destroyed to appeal against it or to show cause why it should not have been made, the requirements of natural justice will be satisfied. In the instant case the aggrieved party is given the right under Section 11 to which I have already referred. On the hearing of such an appeal the court determines whether the literature is objectionable unfettered by the opinion of the Board. I therefore consider that there is, in this case, evidence in the Act itself that it is the intention of the Legislature that notice to the interested parties is not required PRIOR to the making of the order by the Board and that the principles of natural justice are satisfied by the appeal provisions to which I have referred………….” (Capitals and underlining supplied). In Ridge v. Baldwin (1946)
Other Citation: (1977) LCN/1900(SC)