IN THE SUPREME COURT OF NIGERIA
ON FRIDAY, THE 11TH DAY OF FEBRUARY, 1983
APPEAL No: SC.8/1982
CITATION: SC (1983) 2 LLER 1
Before Their Lordships
ATANDA FATAYI-WILLIAMS, J.S.C.
GEORGE SODEINDE SOWEMIMO, J.S.C.
MOHAMMED BELLO, J.S.C.
ANDREWS OTUTU OBASEKI, J.S.C.
KAYODE ESO, J.S.C.
ANTHONY NNAEMEZIE ANIAGOLU, J.S.C.
MUHAMMADU LAWAL UWAIS, J.S.C.
SAMUEL O.V. IGBE
1. THE GOVERNOR OF BENDEL STATE
2. THE ATTORNEY-GENERAL OF BENDEL STATE
The plaintiff (now appellant) was appointed a full-time member of the Public Service Commission of Bendel State on the first day of August, 1979, by the then Military Administrator of Bendel State. The appointment was for five years.
It is provided in the terms of service that the appointment shall be for five years except as otherwise determined by the provisions of the Constitution of Bendel State of Nigeria.
The Constitution of Bendel State referred to in the letter (Ex.A) was, however, replaced by the Constitution of the Federal Republic of Nigeria, 1979 (hereinafter referred to as the 1979 Constitution). At the coming into force of the new Constitution on 1st October, 1979, the Military Administrator was replaced by the first defendant as Governor of Bendel State with effect from that date.
By paragraph 3 of the Statutory Corporations (Revocation of Appointments of Chairmen and Members) Order, 1979 (B.S.L.N.328 of 1979) which came into force on 29th October, 1979,
”The appointments of the Chairmen and members of all Statutory Corporations in the State including those specified in the Schedule to this Order are hereby revoked with effect from the date of commencement of this Order.”
A “Statutory Corporation” is defined in the Order as “any Corporation, Board, Council, Tribunal, Commission or Committee” specified in the Schedule to the Order. Among the “Statutory Corporations” specified in the said Schedule is the “Public Service Commission.”
Later, the Bendel State House of Assembly passed the Civil Service Commission Law (No.7 of 1980) which came into force on 19th November, 1979, although it was not assented to until 18th April, 1980. Section 4 of the said Law provides that the provisions of sections 179 to 185 of the 1979 Constitution shall apply in relation to the Commission while section 5 thereof provides that-
“For the avoidance of doubt it is hereby declared that the Public Service Commission of the Bendel State of Nigeria shall cease to exist from the date of commencement of this Law.”
On the 14th day of December, 1979, there was an announcement in the media (radio and television) that certain persons, which did not include the plaintiff or any of the former Commissioners, had been sworn-in as members of the Bendel State Civil Service Commission. The Nigerian Observer, a newspaper published in Bendel State, carried the same announcement in its issue of Saturday, 15th December, 1979.
Being dissatisfied with this action of the Governor, the plaintiff brought these proceedings in the High Court of Bendel State in which he claimed as follows:-
“i. A declaration that the press statement by one D. P. Lawani (Head of Service on or about the 31st of October, 1979, on behalf of the 1st defendant dissolving by proclamation, Boards, Commissions, Committees and Tribunals in Bendel State, in so far as it purports to revoke the appointment of the plaintiff as a full-time member of the Public (Civil) Service Commission of Bendel State is unconstitutional ultra vires the powers of the 1st defendant as the Executive Governor of Bendel State and therefore void;
- a declaration that under the Constitution of the Federal Republic of Nigeria 1979, the 1st defendant can remove the plaintiff from office as a full-time member of the State Public (Civil) Service Commission only on an address supported by two-thirds majority of the Bendel State House of Assembly praying that the plaintiff be so removed for inability to discharge the functions of his office (whether arising from infirmity of mind or body or any other cause) or for misconduct and by no other method;
iii. damages for breach of contract of service between the plaintiff and the Government of Bendel State, whereby the Government appointed plaintiff as a full-time member of the Public (Civil) Service Commission of Bendel State for a period of five years with effect from 1st of August, 1979.
- claims N61,426.50 Special Damages;
- claims N50,000.00 General Damages.”
In paragraph 12 of his amended statement of claim, which the defendants denied in its entirety, the plaintiff states that –
“(12) It will be contended at the trial that the press statement issued by the said D. P. Lawani (Head of Service, Bendel State of Nigeria) on or about the 31st day of October, 1979, on behalf of the 1st defendant dissolving by proclamation, Boards, Commissions, Committees and Tribunals in Bendel State, in so far as it purports to revoke the appointment of the plaintiff as a full-time member of the Public (Civil) Service Commission of Bendel State is unconstitutional ultra vires the powers of the 1st defendant as the Executive Governor of Bendel State of Nigeria.”
All the facts stated above are not in dispute. After hearing the arguments put forward by both learned counsel for the plaintiff and the learned Solicitor-General of Bendel State who appeared for the defendants, the learned trial Judge, in a reserved judgment, reviewed in detail all the relevant provisions of the 1979 Constitution including those of sections 178, 179, 180 and 275. He also considered the cases cited before him. He thereupon observed as follows:
”Therefore it is my view that the Public Service Commission passed through to the 1st of October, 1979 together with its members as if it was duly established and its members duly appointed under the 1979 Constitution subject to the provisions of section 180(1)(b). Steps could then be taken to formally establish the State Civil Service Commission by order as I suggested earlier or by due process of law passed by the House of Assembly. But this is not done by purporting to abolish the Public Service Commission and to clear the desks of its members, as it were, before taking due time to formally establish the new Commission. There should be no such gap. The provisions of section 275(1) and (2) have already ensured that that did not happen. The existence of a Commission to take charge of civil service matters is a constitutional requirement and the change of name from Public Service Commission to Civil Service Commission would from the coming into effect of the 1979 Constitution take on some of the formers functions as they relate to certain categories of officials of the Judicial Department. Since it was obviously impractical for the Governor or the House of Assembly to settle down on 1st October, 1979 to be able to effect necessary changes conformably to the 1979 Constitution that same day, section 275(1) and (2) became imperative.
Section 180(1)(b) has also ensured that a person who is a member of the Commission by virtue of his having previously held office, shall continue for the duration of his remaining term. He is not a new appointee but is deemed to be duly appointed. He can however be removed before his term expires if section 182(1) is complied with.
…With respect to the Statutory Corporations (Revocation of Appointment of Chairmen and Members) Order, 1979. to which I have referred earlier, the learned trial Judge then observed:-
“To the extent that the order was meant to revoke the appointment of the plaintiff as it was done, it is unconstitutional and of no effect. The said Commission is a Constitutional Agency for the administration of Civil Service Affairs and cannot be undermined directly or indirectly, temporarily or permanently.”
This decision was, however, set aside on appeal by the Federal Court of Appeal.
The Supreme Court held;
There appears to me a sort of misconception in the reasonings of the learned Justices of the Court of Appeal. It is this state of misconception that the Court of Appeal concluded erroneously, that the plaintiff’s appointment had ceased to exist but not by the operation of the 1979 Constitution. This is contrary to the provisions of section 182 of the Constitution which deals with the removal of members of the Public Service Commission, now State Civil Service Commission. (See section 178 Sub-section (1)(a) of the Constitution.)
I therefore entirely agree with all what the Honorable Chief Justice of Nigeria had to say on the construction of all the relevant sections. I agree therefore that the appeal be allowed; that the judgment of the High Court of Benin be re-instated. I adopt all the consequential orders made by my learned brother, the Honorable Chief Justice of Nigeria, in the lead Judgment, as well as his award of costs.