READ FULL JUDGEMENT
THE SUPREME COURT OF NIGERIA
ON FRIDAY, THE 16TH DAY OF JANUARY, 1981
APPEAL NO: SC.57/1980
CITATION: (1981) 1 LLER 1
Before Their Lordships
GEORGE SODEINDE SOWEMIMO, J.S.C.
MOHAMMED BELLO, J.S.C.
CHUKWUNWEIKE IDIGBE, J.S.C.
KAYODE ESO, J.S.C.
AUGUSTINE NNAMANI, J.S.C.
BASHIR ALADE SHITTA-BEY
THE FEDERAL PUBLIC SERVICE COMMISSION
On 15th October, 1973, one Iyabo Olorunkoya, a Nigerian, was arrested in London while attempting to import into the United Kingdom seven cases containing Indian Hemp, a “dangerous and prohibited drug”. In the course of investigation into this offence, a letter from the appellant, who at the time was holding the post of Legal Adviser in the Federal Ministry of Justice (a post in the established cadre of the Federal Civil Sevice), asking Iyabo to “send details as soon as” she arrived in London was found in her possession. On the 14th of March, 1974, the acting Solicitor-General of the Federation and Permanent Secretary of the Federal Ministry of Justice wrote a letter, Exhibit “A” to the appellant in which he stated that he had been directed by the Federal Public Service Commission (the respondent herein) to request the appellant to proceed on leave immediately, pending investigations into his alleged involvement in the criminal case in England against Iyabo Olorunkoya, who by then had been convicted for certain offences relating to the importation in that country of Indian Hemp. This letter was followed by another letter dated the 10th April, 1974 (Exhibit “B” in these proceedings) written by the same officer (i.e. the acting Solicitor-General and Permanent Secretary aforesaid )to the appellant disclosing to him the decision of the respondent that he be “interdicted” from service pending the outcome of the inquiry. Yet another letter (Exhibit “B (1)” in these proceedings) written on the 11th April, 1974 by the same officer (i.e the acting Solicitor-General and Permanent Secretary aforesaid) to the appellant requested him to read “suspended” for the word “interdicted” in Exhibit B. At the end of the inquiry into the appellant’s alleged involvement in the crime for which Iyabo Olorunkoya was convicted, the acting Secretary of the Respondent Commission herein wrote a letter dated 7th January, 1975 (Exhibit “C” in these proceedings) to the appellant wherein he stated:
“Your representations dated 31st October, 1974 submitted in reply to this Commission’s letter No. FC.02478/125 of 28th October, 1975 (read 1974) have been carefully examined by the Commission but it does not consider that you have exculpated yourself.
The Commission has therefore directed that you be and you are hereby retired from the service in the public interest under C.S.R. 04114 (i.e. Civil Service Rules Paragraph 04114) with effect from the date of this letter, with full retiring benefits………..” (Brackets and contents supplied by me).
The appellant after receipt of the letter, Exhibit “C” instituted court proceedings in Suit LD/37/76 claiming the following declarations:-
(1) that the directive given by the defendant (the Federal Public Service Commission) that the appellant (then, plaintiff) be suspended from the exercise of his duties as Public Officer and his actual suspension from duty without pay as contained in letters No… of 10th April, 1974 and No…of 11th April, 1974, is irregular, illegal, null and void; and
(2) that the directive given by the defendant (the Federal Public Service Commission) that the appellant (then, plaintiff) be retired from the service of the Federal Government of Nigeria and the purported retirement as contained in letter No…….of 7th January, 1975, is irregular, illegal null and void.”
On the 23rd December, 1977, the High Court of Lagos State (Bada, J.,) gave judgment (Exhibit “D” in these proceedings) in favour of the appellant (then, plaintiff) in the following terms “… I hereby declare:
(1) that the directive given by the defendant (now, respondent) that the plaintiff be suspended from the exercise of his actual suspension from duty without pay as contained in letter… of 10th April, 1974 and … of 11th April, 1974 is irregular, illegal null and void; and
(2) that the directive given by the defendant that the plaintiff be retired from the service of the Federal Government of Nigeria and the purported retirement (of the defendant) as contained in letter… of 7th January, 1975 is irregular, illegal, null and void.” (Brackets and contents supplied by me).
The respondent has now appealed from the above decision of Bada, J., in the affidavit filed by the appellant in support of the present proceedings, he alleged:
(a) “That the Federal Ministry of Justice being my last duty post immediately before the purported suspension and retirement, I reported for duty at the Ministry on 27th December, 1977, but I was told by the Solicitor-General of the Federal and Permanent Secretary, Mr. O. A. Soeton, that it would still be necessary for the respondent i.e the Federal Public Service Commission, to issue the necessary directive to enable me report for duty.”
(b) “That on the same 27th December, 1997, I wrote a letter to the respondent through the Solicitor-General of the Federation whereby I requested (for) the directive of the respondent as to when I should report for duty”
(c) “That as there was no response, I wrote another letter dated 8th May, 1978 to the respondent through the Solicitor-General whereby I repeated my request” (Brackets and contents and underlining supplied by me).
As there was no response from the respondent to the persistent request of the appellant, he commenced the present proceedings in the High Court of Lagos State asking for the following reliefs:-
(1) “An order of mandamus to compel the respondent to discharge its duty by issuing the necessary directive to enable the applicant report for duty as a civil servant in the Federal Civil (read, Public) Service or, in the alternative, to compel the respondent to exercise its jurisdiction according to law so as to give effect to the judgment delivered by the High Court Lagos, on 23rd December,1977 in Suit LD/37/76;
(2) And for such further order or other order or orders as this Honourable Court may deem fit to make in the circumstances.” (Underlining by me)
At the conclusion of these proceedings in the High Court of Lagos State, the learned Chief Judge (Adefarasin, CJ.,) dismissed the appellant’s claim. I think, it is necessary to draw attention to the relevant passage in the judgment of the learned Chief Judge which, he obviously, regarded as the foundation of his final order; these read:-
(A) “although the parties to the application have advanced very lengthy legal arguments for and against the application, only one short question calls for an answer and it is this, Should a court of law make an order of mandamus compelling a statutory body such as the Public Service Commission to re-instate a servant whose employment had already been determined? It seems to me that the answer to that question is undoubtedly in the negative.
From the above judgment, the appellant appealed to the Federal Court of Appeal (hereinafter referred to simply as “the Court of Appeal”); and their Lordships in that court (Coker, Wali and Uthman Mohammed JJCA.,) on the 12th day of June, 1980 dismissed the appeal for almost exactly the same reasons which formed the basis of the order of dismissal, of the application, by the court of first instance.
The Supreme Court, in considering the main issue of the appeal said; At this point in this litigation there is for determination an issue as to whether an order of mandamus can issue from the High Court to compel the respondent, The Federal Public Service Commission, “to exercise its Jurisdiction so as to give effect to” a declaratory judgment. I can take, I think, the history of the matter which has led to this question briefly in this way.
…It was submitted to, and, indeed, held by both the High Court and the Court of Appeal, that the principle of English law which precludes mandamus from issuing against the Crown and servants of the Crown, applies in this country in regard to public officers in the established and pensionable cadre of the Federal Government Service (see the portions marked “D” and “E” in the judgment of the High Court; and marked “A” in the judgment of Uthman Mohammed, JCA., in the Court of Appeal). Indeed it would appear from the lead judgment of the Appeal Court that public servants in the established and pensionable cadre of The Federal Government Service are regarded as employed at the pleasure of the Federal Government. I shudder to think that this is so; but with great respect to their Lordships both in the Court of Appeal and in the High Court, I am of the view that this cannot be correct. As I have already pointed out the Civil Service Rules to which reference has already been made invests in these public servants a legal status and they can be properly or legally removed only as provided by the said Rules. Again, the principle of law which precludes mandamus from issuing against the Crown has historical justification in English legal history and, in my view, there is no basis for its application in this country (a Republic) in respect of the respondent who, being a creature of statute, can sue and can be sued; there being no provision to the contrary, express or implied, in any enactment in our statute books.
… My Lords, having reached the conclusion that there is no basis for application in this country of the common-law principle that the prerogative order of mandamus does not, generally, issue against the Crown or its servants in their capacity as crown servants; and having also reached the conclusion that a public servant in the established pensionable cadre of the Federal Public Service has a legal status and, ex hypothesi, a right to remain in service until properly removed in accordance with the Civil Service Rules applicable to him, it follows, therefore, that by virtue of the decision in Exhibit “D” in these proceedings, the applicant has a legal right to be properly re-instated and that the respondent has the correlative duty, to see that he is duly re-instated.
Accordingly, I would allow this appeal and order that mandamus should issue against the respondent. This appeal is allowed and it is hereby, ordered that the judgments of both the High Court Lagos State in Suit LD/230/1978 dated the 29th day of March, 1979 as well as the judgment of the Federal Court of Appeal in Suit FCA/L/62/79 dated the 12th day of June, 1980, be and are hereby set aside.