Head of Federal Military Government V. The Public Service Commission of Mid-West State & Anor (1974)

LawGlobal-Hub Lead Judgment Report

G. B. A. COKER, J.S.C. 

This appeal is sequel to proceedings instituted in the High Court, Benin City, Mid-Western State of Nigeria, whereby the present respondent, Maclean Okoro Kubeinje, who was at all material times a Chief Magistrate in the employment of the Public Service of the Mid-Western State of Nigeria (as applicant) sought and obtained an Order of Certiorari against the Public Service Commission of the Mid-Western State. By motion paper dated the 12th October, 1971, the applicant, Maclean Kubeinje, moved the coon ex parte for:

“an Order of Certiorari to remove into this Honourable Court for the purpose of being quashed the proceedings before the Public Service Commission of the Mid- Western State as contained and described in letter No. PC.80 11203 of 14th April, 1971, referred to and marked as Exhibit MOK.20 in the affidavit filed by the applicant in support of this application whereby the said Public Service Commission adjudged that the applicant was not a fit and proper person to continue in his office as Chief Magistrate in the Public Service of the Mid-Western State and perform and/or discharge the duties and functions pertaining to the said office AND directing that the applicant should consider himself summarily removed from his post as Chief Magistrate in the Public Service of the Mid-Western State as from 16th April, 1971, unless the applicant agreed to accept within 2 days from 14th April, 1971, an offer of transfer from the Judicial Department to the Ministry of Justice in the Public Service of the Mid-Western State as Principal State Counsel, Group 6, contained in the letter No. PC.8011203 of 14th April, 1971, aforesaid.”

The applicant filed a statement in support of his application and in that statement the grounds upon which the Order of Certiorari was sought by him were set out as follows:

“(i) The Public Service Commission of the Mid-Western State acted ultra vires and without jurisdiction in the manner and/or procedure they adopted in having at the conclusion that the applicant was not a fit and proper person to continue in his office as Chief Magistrate in the Public Service of the Midwestern State and removing the applicant from the said office.

(ii) The Public Service Commission of the Mid-Western State acted ultra vires and without jurisdiction in ordering that the applicant should consider himself removed from the Public Service of the Mid-Western State in the circumstances stated in their letter No. PC. 8011203 of 14th April, 1971, in that they failed to comply with the provisions of Regulation 60 and/or Regulation 56 of the Public Service Commission Regulations, 1963, of Western Nigeria applicable in the Mid-Western State and the said order of removal was therefore null and void.

(iii) The Public Service Commission of the Mid-Western State acted ultra vires and without jurisdiction in directing the applicant to accept a transfer from the post of Chief Magistrate in the Judicial Department to the post of Principal State Counsel, Group 6 in the Ministry of Justice in the Public Service of the Mid-Western State and the said orders were therefore null and void.

(iv) The Public Service Commission of the Mid-Western State made the orders contained in their letter No. PC. 8011203 of 14th April, 1971, aforesaid in proceedings which were improperly brought and/or commenced before them by virtue of letters reference No. C. 334/196 of 16th February, 1971, from the Chief Registrar, Mid-Western State to the applicant and the applicant’s reply thereto dated 18th February, 1971.

In the alternative to grounds (i), (ii), (iii) and (iv) above, the applicant will seek the said relief upon the following other grounds viz:

(v) The Public Service Commission of the Mid-Western State came to the conclusions and/or made the orders contained in their letter No. PC.801/203 of 14th April, 1971, aforesaid against the applicant (which adversely affected his rights and privileges in the Public Service of the Mid-Western State) in breach of natural justice in that the applicant was not given an opportunity of being heard in his defence by the said Public Service Commission before the said Commission came to the said conclusions and/or made the said orders against the applicant.

(vi) The Public Service Commission of the Mid-Western State did not give the applicant a full and/or adequate opportunity of exculpating himself before the said Commission came to the said conclusion and/or made the said orders against the applicant.”

The applicant also filed an affidavit in support of his application and that affidavit contains the full facts of the events which led to the action of the Public Service Commission which he had challenged. According to the affidavit, the applicant was employed as a Senior Magistrate in the Public Service of the State on the 20th June, 1966; he was promoted to the post of Chief Magistrate on the 1st February, 1968, and on the 20th June, 1969, his appointment in the Public Service was confirmed. On the 21st March, 1969, in the course of his duties, he tried a criminal case-Charge No.MB/1391C/68: Police v. Enina Obaseki-that thereafter he was transferred from Benin City to Warri.assigned to some extra-judicial duties then posted to various posts in the Ministry of Justice supposedly on special duties until, by letter dated the 30th April, 1970, addressed to him by the Chief Registrar of the High Court, Mid-Western State, he was informed that his special assignment to the Ministry of Justice had finished and that he should report for duty in the Judicial Department “on Monday; 4th May, 1970, for instructions”. (See Exhibit MOK.4 attached to the affidavit of the applicant). According to the affidavit of the applicant, on reporting for duty in the Judicial Department, he unsuccessfully sought for an interview with the Acting Chief Justice of the State and after hanging around in the library of the court for a number of days, without seeing the Chief Justice, he received another letter from the Chief Registrar of the High Court, dated the 8th May,1970, Exhibit MOK.6, which reads and states as follows:

“SECRET Judicial Department,

Chief Registrar’s Office,