Federal Military Government v. Governor Mid – Western State & Ors (1973)

LawGlobal-Hub Lead Judgment Report

O. ELIAS, C.J.N.

In suit No.B/18m171 before Begho, C.J., in the High Court, Benin, the applicant brought an ex-parte application under section 24(4)(a) of the High Court Law of Mid-Western State, section 5(2) of the Administration of Justice (Crown Proceedings) Law, 1959, and Order 53 of the Rules of the Supreme Court of England, 1970, in which he sought leave to apply for an order of certiorari to remove into the Court for the purpose of being quashed the revocation of his appointment as a member of the Public Service Commission of the Mid-Western State published in Mid-Western State Legal Notice No. 2 of 1971. The applicant was appointed a member by a letter dated 17 July,1969 and he was removed from office with effect from 20th January, 1971.

According to the statement filed by him in support of his application, the relief sought was based upon the following grounds:

“1. The 1st Respondent acted ultra vires by revoking the appointment of the Applicant in the manner he did.

2. The 1st Respondent acted contrary to the rules of natural justice in that

(a) he revoked the appointment of the Applicant without affording the Applicant sufficient opportunity to defend himself; and

(b) he constituted himself into an accuser and a judge in the same cause.

3. The Respondent purported to act pursuant to Edict No.3 of 1971 which is null and void because it purports to amend the Constitution of the Mid-Western State as confirmed by the Constitution (Suspension and Modification) Decree, 1966.”

The grounds specified in section 61 (5) of the Constitution of Mid-Western Nigeria for the removal of such a member are as follows:

“A member of the Public Service Commission of the Region may be removed from office by the Governor, acting in accordance with the advice of the Premier, for inability to discharge the functions of his office (whether arising from infirmity of mind or body or any other cause) or for misbehaviour.”

As modified by sections 3 and 4 of the Constitution (Suspension and Modification) Decree No.1 of 1966, section 61 (5) of the Mid-Western Nigeria Constitution reads thus:

“A member of the Public Service Commission may be removed from office by the Military Governor for inability to discharge the functions of his office (whether arising from infirmity of mind or body or any other cause) or for misbehaviour.”

By the Constitution of Mid-Western Nigeria (Amendment) Edict, No.3 of 1971, the said section 61 (5) was amended to read:

“A member of the Public Service Commission may be removed or dismissed summarily from office if the Military Governor is satisfied that:

(a) The person holding the office is for any reason unable to perform the functions of his office; or

(b) The conduct of such member is such that his further or continued employment in the Commission would not be in the public interest.”