Federal Civil Service Commission & Ors V. J.O. Laoye (1989) LLJR-SC

Federal Civil Service Commission & Ors V. J.O. Laoye (1989)

LawGlobal-Hub Lead Judgment Report

ESO, J.S.C.

This appeal has been brought by the Federal Civil Service Commission, the Ministry of External Affairs, and the Attorney-General of the Federation against the judgment of the Court of Appeal, Lagos Division, as per Uthman Mohammed, J.C.A., concurred to by Adenekan Ademola,

Owolabi Kolawole, JJ .C.A., who dismissed the appeal of the same appellants against the judgment of the High Court, Lagos State, “Adeniji J.”.

In the High Court, the plaintiff, J. O. Laoye, had claimed

“( a) A declaration that his purported dismissal from the employment of the Federal Civil Service Commission by a letter dated July 21, 1981 is null, void and of no effect;

(b) A declaration that he is still in the employment of the Federal Ministry of External Affairs;

(c) An order directing the 1st Defendant to reinstate the plaintiff to his status as a Civil Servant without prejudice to entitlements and promotions which might have accrued to him during the period of his dismissal.

(d) An injunction restraining the 1st Defendant from further interfering with the plaintiff’s performance of his duties as a Civil Servant.”

The facts which led to the action are as follows: Laoye was employed as an Executive Officer, Accounts, in September, 1964. Before his posting to the Ministry of External Affairs, he served in various Ministries. He served in the Consulate General, New York, from 1973 to 1977. When he returned to Lagos after serving in New York, he was interrogated by the Police and he made a statement to the Police.

On 17th May, 1978, a letter titled “Preliminary Letter” was addressed to the plaintiff. It read “Preliminary Letter”

It has been brought to the notice of the Ministry that during the period you served in the Consulate-General of Nigeria in New York your work and conduct are reported to be unsatisfactory in the following respects:

(i) You held discussions with certain people in New York including an official of the Flying Aces Aviation Training Centre, Miami, Florida and during the discussions you presented yourself as the next in command to the Consul-General, assuring that tuition fees of students you personally recommended or approved of for training would be paid promptly;

(ii) You colluded with some people including certain persons in the above mentioned Flying Aces Aviation Training Centre to defraud the Government of Nigeria: the amount involved is about the sum of U.S. $119,000.00 which is alleged to have been paid by the Consulate General to the Aviation Centre in respect of Government Students who did not attend that Institution;

(iii) You are alleged to have received commissions for your action regarding above; as a matter of fact you received two cheques Nos. 32042 and 32043 each of U.S. $5,000 value (a total of U.S. $10,000.00) on 4th August, 1977 from or through Mr. E. E. Akwara, External Affairs Officer Grade VI of the same Consulate-General, which you duly endorsed on the reverse side. The receipt of these amounts was not brought by you to the attention of the Consul-General.

2. Your acts enumerated above amount to misconduct as defined by Civil Service Rule 04201(i).
3. I am directed to request you, therefore, to submit within 48 hours of receipt of this letter, through the Controller (Finance & Accounts), any representations which you may have why steps should not be taken against you for the recovery of the sum of U.S. $10,000.00 as aforementioned and all such monies improperly obtained by you in consideration of certain services rendered by you in connection with the above quoted cases. Furthermore, you should show why disciplinary action, which may include a report to the Federal Public Service Commission, should not be taken against you. Failure to receive any representations within the stipulated period will be deemed to mean that you do not have any to submit and necessary action will be taken to institute disciplinary proceedings against you accordingly.
4. Please acknowledge receipt of this letter on the duplicate copy attached hereto.

Plaintiff gave a reply to this letter on 22nd May. He said

“Dear Sir,

I humbly refer to your letter reference 3/AG.2391/7 of 17th May, 1978 and submit my representations as follows:

1. (i) I categorically say that I did not present myself as next in command to the Consul-General to anybody, be it students or proprietors of Educational Institution. The designation of every officer is placed at the door of his office. We also carry business cards showing our names and official designation. It is therefore highly impossible for any officer in the Consulate-General to present himself in different light in a civilized country like America where everybody knows his right. This idea is definitely that of some mischievous officers in the Consulate-General in New York and should therefore be dismissed.

(ii) I did not at anytime conclude any agreement with anybody from any Flying School especially with any officer of Flying Aces Aviation Training Centre to defraud the Government of Nigeria.

(iii) It is alleged that I received U.S. $10,000.00 through Mr. E. E. Akwara on cheques Nos. 32042 and 32043, I will say with confidence that I did not receive any money from anybody through Mr. E. E. Akwara. It is very easy to prove the final beneficiary of the two cheques. The course of the two cheques can easily be traced from the drawer to the last beneficiary. Mr. Akwara is still in the service, he can be called to testify. I will like to add that all paid cheques are returned to the drawer by Banks in America.

2. Perhaps if you understand the position of the Accounts Officer in the Consulate-General of Nigeria, New York, you will see clearly that it is highly impossible for any Accounts Officer to arrogate any power to himself or agree with any student or Institution to defraud the Government. Any claim from students or from any Institution would not be paid unless it has been thoroughly examined and approved by the Officer in charge of Education. His approval and relevant documents are attached to the vouchers. The vouchers are then passed to the Head of Chancery who is to sign the voucher before it can be paid. The Head of Chancery ensures that all approval minutes are attached before signing the voucher for payment. I, therefore, say with all emphasis that all vouchers which I paid when I was serving in the Consulate-General in New York were properly approved and authorised before payment.
3. It is not easy for an Accounts officer to pay wrong students or wrong schools. Any approved claim for payment used to come to the accounts section in the files of the respective students. The file contains valid letter of Award of Scholarship and letter to the Institution introducing the student.
4. If therefore there are cases of wrong payment to students or to the Institutions, the student files will be available in the Consulate-General in New York. They should be produced for proper examination. The original vouchers should also be produced as they contain all the attachments which can bear my statement clearly out. I should also be thankful if the original cheques which were alleged to have been received through Mr. Akwara could be produced.
5. I should also like to beg that this preliminary letter being issued at this time when promotion for my set is being considered would not affect my chances. It should be conclusively proved. I am not guilty of any misconduct and I am therefore appealing to the authority that this should not be entered against me.
6. I beg to submit for your consideration please.

Your obedient servant,

(Sgd.) J. O. Laoye

(SEO Accounts)”

That was not the end of the matter, for on 28th September, 1978, another letter was issued to the plaintiff. It reads “Preliminary Letter”

The office can seek the help of the paying Bank to know who cash account they were paid.

Please refer to my letter No. 3/Aa.2391/7 of 17th May, 1978 and your representations dated 22nd May, 1978. Photocopies of Chemical Bank of New York cheques Nos. 32042 and 32043 both of 14th August, 1977 made payable to Nene W. Lanval (maiden name of Mrs. E. E. Akwara) and further made payable to you by the lady are attached. You will observe that these cheques have been endorsed by you on the reverse side.

I am directed, therefore, to request you to submit within 48 hours of receipt of this letter, through the Controller (Finance & Accounts), any explanations which you may have for receiving and endorsing these cheques, each for the sum of U.S. $5,000.00 (a total of U.S. $10,000), said to be certain commission received by you as mentioned in my letter referred to above. Failure to receive any explanations within the stipulated period will be deemed to mean that you do not have any to submit and necessary action will be taken to institute disciplinary proceedings against you accordingly and to recover the sum of U.S. $10,000 as aforementioned and all such monies improperly obtained by you while in New York on official assignment.

You will please acknowledge receipt of this letter on the duplicate copy attached hereto.

Sgd. (E. O. Taiwo)

for Permanent Secretary”

And plaintiff replied on 9th October to this. He said

“Dear Sir,

With reference to your letter ref. No. 3/ Aa2391 of 28th September, 1978, my explanation are given below I have faint recollection that Mr. Akwara brought some cheques issued to his wife by the Chemical Bank. These cheques as I was made to understand were sent to Mrs. Akwara (Nee Landval) by the father. Mrs. Akwara as I can recollect was hospitalized for caesarian operation at the time and she could not go to the bank to cash them. The husband, Mr. E. E. Akwara therefore needed a sort of identification to be able to cash the money on behalf of his wife. He brought them to me and I endorsed the cheques for him. The cheques were for his wife and she duly signed them at the back.

The words ‘Pay to the order of J. O. Laoye’ must have been written after my simple endorsement just to be cancelled afterwards. The fact that my name was cancelled by the payee shows that no Bank will ever pay the money to me.

That it is being rumoured in certain quarters that I received Ten thousand dollars from Mr. Akwara is borne out of hatred of some mischievous local staff in collaboration with some jealous officers of the Consulate-General.

I am repeating it that I did not receive any commission from Mrs. Akwara or from any body. My endorsement was just to identify Mr. E.E. Akwara who probably cashed the money on behalf of his wife. The office can seek the help of the paying Bank to know who cashed the cheques or into which account they were paid.

“Yours obediently,

(Sgd) J. O. LAOYE”

However, on 21st July, 1981, he was dismissed from the service. The letter of dismissal is as follows

“Mr. J. O. Laoye,

S.E.O. (Accounts),

u.f.s. The Permanent Secretary,

Ministry of External Affairs,

Administration Department,

Lagos.

The Commission has given very careful consideration to your representations dated 22nd May, 9th October, 1978 and 18th January, 1979 respectively, which you submitted in reply to the Ministry of External Affairs letters numbers 3/ Aa.2391T of 17th May, 1978, 3/ Aa.2391 September, 1978 and 3/ Aa.2391 of 4th January, 1979 respectively together with all the attachments but considers that have (sic) not exculpated yourself from the charges made against you in the said letters. It has directed therefore that you be, and you are hereby dismissed from the service with effect from 9th July, 1981.

2. You should please surrender all government property in your possession including residential accommodation if you are occupying one.

(Sgd. ) F. A. Akokhia

For Permanent Secretary

Federal Civil Service Commission”

And so, the plaintiff claimed as I have stated supra.

The Defendants, that is the appellants’ main defence was that the plaintiff was dismissed for serious misconduct, but that they complied with the Federal Civil Service Rules in the exercise. They relied on the letters I have set down, supra, and averred further that the plaintiff was given every opportunity to defend himself and that his case was fully, deliberated upon.

In his judgment, the learned trial Judge relied most heavily on the judgment of this Court in the case of Professor Olaniyan and Ors. v. University of Lagos & Anor. and having quoted the learned Justice of the Supreme Court almost in totality rather in extenso, added about two pages of his own and held that

“the Civil Service Rules to which reference has already been made invests in the public servants the cadre to which the plaintiff belongs – Legal status and they can be properly or legally removed as provided by the said Rules.”

He granted the plaintiff’s claim and ordered

“(a) Declaration that:- the purported dismissal from the employment of the Federal Civil Service Commission by a letter dated July 8,1981 is null, void and of no effect;

(b) That plaintiff is still in the employment of the Federal Ministry of External Affairs;

(c)The 1st Defendant to reinstate the plaintiff to his status as a Civil Servant without prejudice to entitlements and promotions which might have been accrued to him during the (sic) period of his dismissal.

(d) An injunction restraining the 1st Defendant his servants, agents etc. from further interfering with the plaintiff’s performance of his duties as a Civil Servant.”

On appeal to the Court of Appeal, by the present appellants, who were dissatisfied with the decision of the trial Court, the issues for determination were only two-fold. They were

“1. Whether the appellants complied with the Provisions of the Federal Civil Service Rules 1974 in dismissing the Respondent from service.

2. Whether the learned trial Judge was right in ordering re-instatement of the Respondent in view of the fact that the appellants did not comply with the Provisions of the Federal Civil Service Rules 1974 and on relying on the cases of Shitta- Bey v. Federal Public Service Commission and Olaniyan & Ors. v. University of Lagos & Anor. in coming to this conclusion.

The Court of Appeal in its judgment reviewed the earlier authorities of this Court, made reference to the finding of the trial court that the Federal Civil Service Commission, being a creation of Statute, must be guided by the Law and its own Regulations then held

“It is a fact, as shown from the record, that the Respondent had been queried by the Ministry of External Affairs on the allegations made against him and that he answered the queries. However the Ministry of External Affairs is not the body responsible to discipline the officer. It is the duty of the Civil Service Commission, the 1st appellant, to do so. The Civil Service Rules, 1974, provide for the submission of serious allegation of misconduct concerning senior public officers to the 1st appellant. Preliminary investigations made by the Ministries shall be forwarded to the Civil Service Commission which shall conduct disciplinary proceedings in the manner of a mini trial of the allegation made against an individual public officer.

In the case in hand the 1st appellant abdicated its responsibility by failing to investigate the allegations made by the Federal Ministry of External Affairs against the Respondent. Instead, the 1st appellant only relied on the accuser’s report and without calling upon the Respondent to explain his defence, it wrote the letter reproduced above and summarily dismissed him from the service. The procedure followed by the Civil Service Commission is a clear violation of the principle of natural justice.”

Against this decision, the appellants have further appealed to this Court.

The learned Attorney General appeared in person for himself and the other appellants. More importantly, the learned Attorney indicated that he would press a review of the former decisions of this Court and in regard thereto a full court was empanelled to hear this Appeal. He listed the following as questions for determination

“(i) whether the decision in Garba And Ors v. The University Of Maiduguri(1986) 1 N. W. L. R. Part 18 page 550 applies in this case even though there was an allegation of misconduct which would appear to be crime in issue;

(ii) whether the dismissal of the Respondent, having regard to all the surrounding circumstances, was in accordance with the provisions of the Federal Civil Service Rules.

(vi) whether the dismissal of the Respondent, having regard to all the surrounding circumstances, is in accordance with the rules of natural justice;

(iv) whether the Public Service Commission was obliged to comply strictly and literally with the provisions of section 33(1) of the Constitution 1979.

(v) whether the Supremacy of the constitutional provisions as overriding the Rules was given its due recognition and effect;

(vi) whether section 33(4) of the Constitution of 1979 is applicable to this case. ”

These, especially questions (i) and (v) supra appear to be weighty issues for what the learned Attorney-General has thereby indicated was whether or not the earlier decisions of this Court, indeed from Sofekun v. Akinyemi (1980) 5 S.C. 1 through Shitta-Bey (1981) 1 S.c. 40; Olaniyan (1985) 2 N.W.L.R. (Part 9) page 599; Garba (1986) 1 N.W.L.R. (Pt.18) 550; to Adigun and Ors. (1987), 1 N.W.L.R. (Part 53) 678; in which this Court has consistently emphasised the status of the Public Servant, the importance of fair hearing and the duty of the Public Service Commission to follow its Rules and Regulations, but above all, in the separation of a body like the Civil Service Commission from a Criminal Tribunal, are to be overruled.

And this justifies the excitement which anticipated the submissions of the learned Attorney General. However, in an Amended Brief, prepared by a Legal Adviser in the Federal Ministry of Justice, Mr. Harris-Eze, the Ministry as regards Question (i) laboured to distinguish this case from the previous cases in this Court. The Brief dealt with the case of Garba (ante) first and made reference to the decision of this Court that any finding of guilt without a trial is a breach of all the Rules of Natural Justice. The Brief regarded this Court as dealing with the disciplinary powers of the Visitor and the Vice-Chancellor under s.17 of the University of Lagos Act and as “Chapter 4 section 1 of the Civil Service Rules” outlines the disciplinary procedure adopted by the Commission and Misconduct as defined “includes allegations that savour of criminal offences” there is a jurisdiction herein, different from that of the Visitor, the Vice-Chancellor’s and/or the Panels Set up by them.

The Brief then went on and it is best reproduced herein.

“The same distinction applies mutatis mutandis to the disciplinary powers and jurisdiction of professional bodies like the Medical and Dental Practitioners Disciplinary Committee (Denloye v. Medical and Dental Practitioners Disciplinary Committee (1968) 1 All N.L.R. 306 and the Nigerian Bar Association (Legal Practitioners Disciplinary Committee v. Gani Fawehinmi) (1985) 2 N.W.L.R. (Part 7) page 300.

Obaseki, J .S.C., also recalled the judicial powers vested in the Courts by S.6 as defined in sub-section (6)(b) and held that judicial powers are not vested in private persons, administrative tribunals or other authorities, and that by the purported exercise of judicial powers, the person injured is denied the right to fair hearing under sections 33(1) and (4) by the action of those persons or authorities. By the emphasis of fair hearing in the provisions of subsections (1) and (4) of section 33 of the Constitution it is my view that the necessity of compliance with all the Rules of Natural Justice audi alteram partem and nemo judex in causa sua have been expressly stated. See page 584 lines 13-23. This point is treated separately under Question No.3.

In sum, and in the light of the above glaring distinctions, considering the particular circumstances and facts in the instant case as stated in Adedeji’s case (supra) these judgments considered above are not appropriate precedents for the consideration of the instant case and should not weigh so heavily in its consideration.”

That, with respect seems to be all the challenge to the previous judgments of this Court which I set out, (supra) and which challenge has necessitated the setting up of a full Panel of this Court.

However, on question 2, that is, compliance with the Civil Service Rules, the Brief submitted that on the “individual facts of this case, the question of confronting the Respondent by witnesses does not arise nor does it call for setting up of a panel to try him in the form of a mini-trial.”

As regards compliance with the rules of natural justice, the Brief said

“The Public Service Commission has the peculiar exception to the strict application of the principles of natural justice provisions of S. 33(1). This is so by virtue of the provisions of S. 33(2) of the Constitution, 1979. What is required of the Commission under S.33(2) is substantial conformity with the principles of natural justice provided that there is a right of appeal from the decision of the Commission as is provided for an opportunity for the Respondent to make representations in writing before the Commission made its decision to dismiss the Respondent. Also the determination of the Commission is not made final and conclusive for the Respondent has unfettered access to the Courts. ”

There was a further dissertation on the concept of justice and substantive justice and with regard to strict compliance with section 33(1) of the Constitution, the brief in question IV submitted the answer was in the negative having regard to sub-section (2) of section 33.

Question (v), I said was important and on that the Brief has the following to say

“Whether the supremacy of the Constitutional provisions as over-riding the Rules was given its due recognition and effect

Again the answer to this question is an imperative no and is easily sustainable upon the answer to the preceding question number (iv), in that a rather heavy weather was made of the Civil Service Rules, a subsidiary legislation, and they were given a position of pre-eminence in utter neglect of the constitutional provisions of Ss.33(2). 140(1)(b), 140(2), 145(i), 147(1), 156, Part 1 of the Third Schedule Paragraph B section 4(i)(a) and (b) and section 160.

The supremacy of the Constitution is not in doubt. It is pertinent to add that the Civil Service Rules (revised up to 1st April, 1974) were not made in contemplation of the Constitution of 1979. They were made long before the 1979 Constitution and must, to that extent also, be subservient to the Constitution of 1979.

In the final analysis, therefore, it is from this Constitution that the ultimate power and procedure are derived, and traceable.”

Question VI also raises some issues which, because the issues therein are not very explicit, is best copied out

“Whether section 33(4) of the Constitution, 1979 is applicable to this case

The evidence before the Court is that the offence with which the Respondent was “charged” was committed in the United States of America. In this regard it could not have been tried by any Nigerian Court for section 33(4) has no extra-territorial application.

The offence envisaged by section 33(4) is one committed in Nigeria for the trial of which Nigerian Courts have jurisdiction, and not an offence committed outside Nigeria which is not under the law tribal in Nigeria. See

Godwin Josiah v. State (1985) 1 S.c. 406. See also Sofekun v. Akinyemi (1980) 5-7 S.c.1.

The instant case is again distinguishable to this extent from Garba v. University of Maiduguri (supra), Denloye v. Medical and Dental Practitioners Disciplinary Committee (supra), Sofekun v. Akinyemi (supra).”

Professor M. I. Jegede, learned counsel for the Respondent based his reply on two issues. They are

(i) Civil Service Rules; and

(ii) Natural Justice.

On the first, the learned Professor argued that the first appellant failed to comply with the provision of the Civil Service Rules before dismissing the Respondent. Counsel then went through the provision of the Rules to show the failure of the appellants in regard thereto. He stipulated the duty of the first appellant thus;

“It is a fact, as shown from the record, that the Respondent had been queried by the Ministry of External Affairs on the allegations made against him and that he answered the queries. However, the Ministry of External Affairs is not the body responsible to discipline the officer. It is the duty of the Civil Service Commission, the 1st appellant, to do so. The Civil Service Rules, 1974, provide for the submission of serious allegation of misconduct concerning senior public officers to the 1st appellant. Preliminary investigations made by the Ministries shall be forwarded to the Civil Service Commission which shall conduct disciplinary proceedings in the manner of a mini trial of the allegation made against an individual public officer.

In the case in hand the 1st appellant abdicated its responsibility by failing to investigate the allegations made by the Federal Ministry of External Affairs against the Respondent. Instead, the 1st appellant only relied on the accuser’s report and without calling upon the Respondent above and summarily dismissed him from the service. The procedure followed by the Civil Service Commission is a clear violation of the principle of natural justice. ”

This the first appellant, in the submission of learned counsel, failed to do and thus it ignored vital steps in the procedure for the dismissal of a senior pensionable officer.

On Natural Justice, learned Counsel referred to the basic rule represented by the maxim “Audi alteram partem” and submitted that the Respondent was denied his rights of going through all the various documents used in reaching the conclusion that he was guilty of fraud or conspiracy. And that he was denied his right to cross-examine or even know those who accused him of committing the various offences.

Learned Counsel further submitted in his Brief that the second appellant, the Ministry of External Affairs, was both the accuser and Judge of the situation before a recommendation was made to the first Respondent.

In regard to the case of Garba v. University of Maiduguri (supra), Professor Jegede said that the Court of Appeal did not, in its lead judgment, make reference to this case. Ademola, J.C.A. did, but learned Counsel submitted that what the learned Justice said was merely obiter and there could be no appeal there from. If, however, the pronouncement is not obiter, then the decision does not support the case of the appellant.

Now, and with much respect to the learned Attorney-General, it is necessary to find out if all this exercise is not one of “Much Ado About Nothing” as the law seems to be well settled and the present case has no new features. And so, it would be necessary not only to go through the Brief prepared by Mr. Harris-Eze for the Attorney-General, but also the oral submissions of learned Attorney himself.

And so, we would now go through the oral submissions in support of the Briefs. The learned Attorney-General prefaced his submissions with the fact that he faced an uphill task to persuade this Court in regard to this appeal, having regard to the line of authorities which have, over the years, flowed from this Court. Learned Attorney then submitted that his theme was that substantial justice should be done. He then made reference to the Civil Service Commission Rules and submitted that the guidelines are faulty.

Learned Attorney-General next dwelt on the authority for the acceptability of the Civil Service Rules.

He made reference to sections 160 and 176 of the 1963 Constitution and sections 147(1); 156 and 140 of the 1979 Constitution, and submitted that the Federal Civil Service Commission has not made Rules. It appears to me at this stage that the learned Attorney-General has not given consideration to S. 274(1) of the 1979 Constitution which talks about existing law. The section provides

“Subject to the provisions of this Constitution, an existing law shall have effect with such modifications as may be necessary to bring it into conformity with the provisions of this Constitution and shall be deemed to be

(a) An Act of the National Assembly to the extent that it is a law with respect to any matter on which the National Assembly is empowered by this Constitution to make laws.

(b) A Law made by a House of Assembly to the extent that it is a law with respect to any matter on which a House of Assembly is empowered by this Constitution to make laws.”

Finally, Prince Ajibola said that the offence was committed in America and not in Nigeria.

Professor Iyiola Jegede in his own submission went through the Rules. He said there was an obvious mistake in the Table as “04108” under Dismissal in Table A should read 04107.

On the issue of Natural Justice, the submission of learned Counsel was that it was clear that the appellant had not observed those Rules as he was never given a fair hearing. It was the Ministry of External Affairs and not the Civil Service Commission that investigated the Respondent.

Firstly, I would like to dispose of the contention of the learned Attorney-General that the Civil Service Commission has made no Rules. Section 140(1) of the 1979 Constitution established the Federal Civil Service Commission. By section 147 of the same Constitution, the Commission may, with the approval of the President-

“by rules or to otherwise regulate Its own procedure ……………..

The Rules now relied upon were made before 1979 when there was no Federal Civil Service Commission but a Public Service Commission as established under section 146 of the 1963 Constitution. In his written Brief the learned Attorney-General’s complaint was that “the Civil Service Rules (revised up to 1st April 1974) were not made in contemplation of the 1979 Constitution. They were made long before the 1979 Constitution and must, to that extent also, be subservient to the Constitution of 1979.”

However, in his oral submission, his contention was that the Civil Service Rules have no force of law as they were not made post 1979, and as the Public Service Commission was not the same as the Civil Service Commission. With utmost respect, this is a clear misconception of the legal position. I have already set out S.274 of the 1979 Constitution which deals with existing law. Under that provision, the Federal Government Civil Service Commission Rules in question were, on the eve of 1st October, 1979, existing law and they, on the coming into force of the Constitution, started to have effect “with such modifications as may be necessary to bring it into conformity with the provisions of sections 140 and 147 of the Constitution.”

One other minor matter lies in the submission of the learned Attorney General that the offence was committed outside Nigeria. The offence, he said, was committed in America and the matter might involve diplomatic immunity, or a decision could be taken not to prosecute. I believe that the learned Attorney-General was trying to find means of distinguishing the case of Garba v. University of Maiduguri from this case. The flaws in this submission are many. Firstly, it has been settled in Queen v. Patrick Osoba 1961 All N .L.R. 237 that only a part of an offence has to be committed in Nigeria to grant jurisdiction in the Nigerian Courts. But is it, an issue here really, whether the Respondent must be prosecuted or not: I think the issue is that he must be given a hearing before he is disciplined and if the allegation is one that touches the commission of a crime, it is only a Criminal Tribunal that could convict him. In Garba v.University of Maiduguri (1986) 1 N. W. L. R. (Part 18) 550, what Obaseki, J.S.C., said was

“If a person is accused of committing or having committed a criminal offence, his civil obligation to freedom from arrest, prosecution and punishment is called into question”

The issue there was whether the Visitor to a University or the Vice Chancellor could assume judicial powers in criminal charges. Obaseki, J.S.C., said

“It is therefore clear that offences against the laws of the land fall outside the jurisdiction of the Visitor and the Vice-Chancellor”

In that case, I tried to distinguish between what should be placed before the Domestic Forum of the Visitor and what should be laid before a Court’s jurisdiction. In the instant appeal, therefore, on the issue of the misconduct of a Civil servant, whose appointment, discipline and dismissal are governed by Statute or Rules, as the case may be.

(1)Should the Rules or Statute not be strictly adhered to and

(2)Should the Rules of Natural Justice not apply

I would like to emphasise herein that the decision in Garba should not be taken as a prohibition of instituting disciplinary measures against civil servants where there has been a criminal charge or accusation. However, other considerations might enter. For once such criminal allegations are involved, care must be taken that the provision of s. 33(4) of the Constitution are adhered to. It is not so difficult where the person so accused accepts his involvement in the acts complained of, and no proof of the criminal charges against him would be required. He has, in such a case, been confronted with the accusation and he has admitted it. He could face discipline thereafter. But in the real enactment of life drama, this is never the case. People very seldom, if at all, admit of their involvement in criminal acts.

For this reason therefore, let me review some of the early decisions of this Court starting with Denloye v. Medical and Dental Practitioners Disciplinary Committee (1968) 1 All N.L.R. 306. The appellant was accused of professional conduct. That conduct amounted to a crime. The Supreme Court held,

“In effect, where the unprofessional conduct of a practitioner amounts to a crime, it is a matter for the courts to deal with end once the court has found a practitioner guilty of an offence, if it comes within the type of cases referred to by S. 3(1)(b) then the tribunal may proceed to deal with him under the Act.”

This is clear enough. Conducts amounting to crime must first be a matter for the criminal Tribunal before disciplinary issues could be raised. The Supreme Court nullified the proceedings of the Tribunal. Dr. O. G. Sofekun v. Chief N. O. A. Akinyemi and 3 Ors. (1980) 5-7 SC. 1 also presents a clear picture.

By virtue of s.62 of the Constitution of Western Nigeria 1960 a Public Service Commission was established. It is almost in the same way as s.140 of the 1979 Constitution has established a Federal Civil Service Commission. This Commission, pursuant to section 72(1) of the Constitution made the Public Service Commission Regulations. Under the 1979 Constitution, it is s.147 of that Constitution that enabled the Commission to make Rules which, by section 274 of the same Constitution are the Rules applied in the instant case.

A point in departure however was that the Public Service Commission Western Nigeria amended the provisions of the 1963 Regulations. The question before the Supreme Court was whether or not the amendments were valid and constitutional. By the amendment, it meant that even where a criminal offence was disclosed the Commission could proceed to investigate the alleged offence and even still proceed to disciplinary action in spite of an acquittal by the Court.

Fatayi- Williams, C.J.N., who delivered the judgment of the Court referred to the provisions of S.22 of the 1963 Constitution which guaranteed fair hearing within a reasonable time by a court. The Court then interpreted the words “by a court” and the word “charged”. The latter, the learned Chief Justice said, was synonymous with the word “accused” and held

“Moreover, because of the mandatory provisions of the subsection, it seems to me that once a person is accused of a criminal offence, he must be tried in a court of law where the complaints of his accusers can be ventilated in public and where he would be sure of getting a fair hearing”………

Let us compare the provisions of S.22 of the 1960 Constitution with S. 33(4) of the 1979 Constitution.

33(4)”Whenever any person is charged with a criminal offence, he shall unless the charge is withdrawn be entitled to a fair hearing within a reasonable time by a court or tribunal.”

Indeed, in ipsissima verba with s.22 of the 1960 Constitution. And the facts of the instant case are such that it was the criminal allegation against the Respondent that was allegedly investigated. Even further in this case, there is a further step backwards, as the Commission itself was not the investigator! The investigator was the accuser.

The Garba case belongs to the above stated line of cases in the sense of the investigation of the criminal complaints. The authorities have been so settled that the only added point in the Garba case was that s.6 of the 1979 Constitution in any event has vested the judicial powers in the Courts or Tribunals established under the Constitution. I said in the Garba case

“I think the facts in this case are clear as to the allegations made out against the appellants. There were charges of arson, looting, stealing, indecent assault. The Senate was not a tribunal or court set up under the Constitution”

I am of the firm view that all these authorities which I have reviewed not only accord with the Constitution but also with common sense justice. There is no way one could circumvent these authorities without violating the Constitution. And once the Constitutions toyed with, it is a goodbye to such country!

The line of cases which indicate the directional movement of the Courts towards fair hearing, is also strong, hard and solid.

In EPEROKUN v. UNILAG (1986) 4 N. W. L. R. (Pt.34) 162 the strong words of Irikefe, C. J. N., are very apt –

“Constitutionally entrenched provisions, particularly those safeguarding individual rights, should not, save in a fascist system, be lightly trampled upon. An appointee should not have the specter of misconduct hanging over his head without being given an opportunity of clearing his name.”

In Olatunbosun v. Niser(1988) 3 N. W. L. R. (Pt.80) 25, the issue was the status conferred by section 9 of the University of lbadan Act. Oputa, J .S.C., delivering the lead judgment of the Court held that as it was in the Olaniyan case, the appointee acquired special status over and above the ordinary contractual relationship o/master and servant at common law.

I think the reasoning of this Court on fair hearing, is also not only in accord with the law over the ages but agrees with common sense. Anyway, is there a reason the other side should not be heard before he is condemned Why should he not enjoy the rights conferred upon him by law as regards his employment Why should he not be protected by the Constitution and have criminal charges against him determined by the Courts or Tribunals set up by the Constitution itself I think it is admitted in every reasonable culture, even apart from the decisions of this Court, that a Judge should hear both sides before determining the guilt or otherwise of a person.

What then is left in this case I am not, with respect, persuaded in the least, by the submissions of the learned Attorney-General that the authorities of this Court in that regard need a review.

Having contended thus, one asks what is left of the issues raised in this appeal The facts are so much on all fours with previous decisions of this Court that the Court of Appeal had no alternative but to dismiss the appeal as it did if the Civil Service Rules gives the Respondent the protection he has claimed. It is necessary for me to examine the Rules.

I agree with Professor Jegede that there is a mistake in the table under 04104(e). The figure 04108 in the first line and second column should read 04107 for it to be meaningful. The column deals with officers holding senior Posts on Pensionable establishments. 043107 deals with “Service misconduct” while 04108 deals with contract officers or officers on month-to-month. It has long been established that the legislator himself intends the interpreter of an enactment to construe an enactment in such a way as to implement, rather than defeat, the legislative intention. The maxim is ut res magis valeat quam pereat.

And so, 04107 states the procedure to wit

“(i) The officer shall be notified in writing of the grounds on which it is proposed to dismiss him, and he shall be called upon to state in writing, before a day to be specified (which day must allow a reasonable interval for the purpose) any grounds upon which he relies to exculpate himself;

(ii) The matter shall be investigated by the appropriate authority with the aid of the Head of the officer’s Department, and such other officer or officers as the appropriate authority may appoint;

(iii) If any witnesses are called to give evidence, the officer shall be entitled to be present and to put questions to the witnesses;

(iv) No documentary evidence shall be used against the officer unless he has previously been supplied with a copy thereof or given access thereto;

(v) If the officer does not furnish any representations within the time fixed, the Federal Public Service Commission may take such action as it deems appropriate against him;

(vi) If the officer submits his representations and the Commission is not satisfied that he has exculpated himself, and considers that the officer should be dismissed, it shall take such action accordingly;

(vii) If upon considering the representations of the officer the Commission is of the opinion that the officer does not deserve to be dismissed from the Service but deserves some other punishment, it shall impose on the officer such punishment as it considers appropriate;

(viii) If upon considering the representations of the officer the Commission is of the opinion that the officer does not deserve to be dismissed but that the facts of the case disclose grounds for requiring him to retire in accordance with Rule 04114 it shall direct accordingly;

(ix) In exceptional cases, if upon considering the officer’s representations the Commission is of the opinion that the case against the officer needs further clarification, it shall appoint a Committee to enquire into the matter. The Committee shall consist of not less than three persons, one of whom will be appointed Chairman by the Commission. The members of the Committee shall be selected with due regard to the standing of the officer concerned, and to the nature of the complaints which are the subject of the Inquiry. The Head of the officer’s Department shall not be a member of the Committee;

(x) The officer shall be informed that on a specific day, the question of his dismissal shall be brought before the Committee and that he shall be required to appear before it and defend himself and shall be entitled to call witnesses. His failure to appear shall not invalidate the proceedings of the Committee;

(xi) If witnesses are examined by the Committee, the officer shall be given an opportunity of being present and putting questions to the witness on his own behalf, and no documentary evidence shall be used against him unless he has previously been supplied with a copy thereof or given access thereto;

(xii) In exceptional cases, the Committee may, in its discretion, permit the officer to be represented by a solicitor or counsel, provided that where the Committee permits the officer to be represented by Counsel, the government shall similarly be represented by a counsel;

(xiii) If during the course of the inquiry further grounds for dismissal are disclosed, and the Federal Public Service Commission thinks fit to proceed against the officer upon such grounds, the officer shall by the direction of the Commission be furnished with a written statement thereof and the same steps shall be taken as are above prescribed in respect of the original grounds;

(xiv) The Committee having inquired into the matter shall make a report to the Commission which, if it considers that the report should be amplified in any respect or that further enquiry is desirable, may refer any matter back to the Committee for further inquiry or report accordingly. The Commission shall not itself hear witnesses;

(xv) If upon considering the report of the Committee together with a copy of the evidence and of all material documents relating to the case, the Commission is of the opinion that the officer should be dismissed, such action shall immediately be taken;

(xvi) If the Federal Public Service Commission does not approve the officer’s dismissal, and does not consider that any penalty should be imposed, the officer shall be reinstated forthwith and shall be entitled to the full amount of salary denied him if he was interdicted;

(xvii) If the Commission considers that the officer deserves some punishment but not dismissal, it shall apply such penalty as it deems appropriate;

(xviii) If upon considering the report of the Committee, the Commission is of the opinion that the officer does not deserve to be dismissed but that the proceedings disclose grounds for requiring him to retire, the Commission shall, without further proceedings, direct accordingly.”

Were all these done here The answer is NO. ”

It was not the Commission that investigated the Respondent. It was his accuser – the Ministry of External Affairs – And so the question of the Commission applying rules of natural justice could never have arisen.

This appeal must fail. It is hereby dismissed. The judgment and order made by Adeniji, J., affirmed by the Court of Appeal is hereby further affirmed. There will be costs assessed at N500.00 to the Respondent.

SC.202/87