Alhaji Sule Katagun & 2 Ors (Constituting The Police Service Commission) V M.E.K Roberts (1967)

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BRETT, Ag. C.J.N.

The respondent was at all material times the Deputy Inspector-General of the Nigeria Police Force, and the appellants were the Chairman and Members of the Police Service Commission established by section 109 of the Constitution of the Federation. After various letters had passed between the respondent and the Commission concerning allegations of misconduct which had been made against the respondent, the Secretary to the Commission addressed a letter to the respondent dated the 10th May, 1965, which read as follows–

Sir,

In view of your letter of 7th May in reply to my FC. 18015/64 of 29th January, the Commission has now directed me to give you 6 months’ notice of its intention to retire you from the Service, as provided for in Section 9(1) of the Pensions Act, the notice to take effect from the date of this letter.

2. May I please be favoured with your acknowledgement of this letter as soon as possible?”

The respondent protested in writing, and in a letter dated the 25th June, 1965 the Secretary to the Commission informed him that the Commission was unable to change its earlier decision and had directed that he be relieved of his duties forthwith.

On the 8th July, 1965, the respondent took out a writ against the Attorney-General of the Federation and the Police Service Commission; later he obtained leave to substitute the three appellants by name for the Commission. The relief asked for was–

“. . . a declaration that the purported Notice of intention to retire him and his subsequent retirement from the service of the Nigerian Government under Section 9(1) of The Pensions Act, which notice was served on him by the 2nd defendants, is illegal, ultra vires and of no effect.”

After a motion to dismiss the suit as not maintainable against the defendants had been refused, pleadings were ordered, and a Statement of Claim was filed. The defendants then brought a motion under Order 28 of the High Court (Civil Procedure) Rules, asking for–

“… an order that the suit herein be dismissed without any answer upon the questions of fact being required from them on the ground that (a) this Honourable Court has no jurisdiction to entertain these proceedings against the 2nd, 3rd and 4th Defendants/Applicants; (b) that the proceedings disclose no cause of action against the Defendants/Applicant’s (c) that they are frivolous, and an abuse of the process of this Honourable Court and for such further order or orders as this Honourable Court may deem fit to make in the circumstance.”

The motion was heard by Taylor, C.J. He gave judgment dismissing the Attorney-General of the Federation from the suit and no appeal has been brought against this decision. He refused to dismiss the suit against the three appellants summarily, and the present appeal is brought against that refusal.

Two grounds of appeal were filed, but one was abandoned and the only ground argued in this Court read-

“The learned Chief Justice erred in law when he failed to consider that the powers exercisable under Section 9(1) of the Pensions Act can only be exercised by the Police Service Commission having regard to Sections 1, 109, 110 and 156 of the Constitution of the Federation and Section 10-(2) of the Interpretation Act, 1964.” Section 9 of the Pensions Act reads

“9. (1) It shall be lawful for the Minister to require an officer to retire from the public service of the Federation at any time after he attains the age of forty-five years, subject to six months’ notice in writing of such requirement being given to the officer by the Minister.

(2) It shall be lawful for the Minister to require a female officer to retire from the public service of the Federation on marriage.”

The power to require an officer to retire under this section was formerly conferred on the Governor-General, and the word “Minister” (which means the Federal Minister charged with responsibility for pensions) was substituted by the Pensions (Amendment) Act, 1961, assented to on the 29th September, 1961.

The respondent was aged 48 in May, 1965, and it is not disputed that he is an officer whom the proper authority might require to retire under s. 9 of the Pensions Act. What is disputed is whether the Police Service Commission is the proper authority. The argument for the appellants is as follows. Under section I of the Constitution of the Federation, 1963, the Constitution prevails over any other law to the extent of any inconsistency between the two. Section 109 establishes the Police Service Commission of the Federation. Section 110(1) reads–

“Power to appoint persons to hold or act in offices in the Nigeria Police Force (including power to make appointments on promotion and transfer and to confirm appointments) and to dismiss and to exercise disciplinary control over persons holding or acting in such offices shall vest in the Police Service Commission of the Federation.”

Section 156 provides that all existing laws shall have effect with such modi-fications as may be necessary to bring the law into conformity with the Constitution. It is therefore submitted that section 9 of the Pensions Act has effect in relation to a police officer as if “Police Service Commission” were substituted for “Minister” and in relation to other officers as if “Public Service Commission” were substituted.

We observe that sections 1, 109, 110 and 156 of the Constitution of 1963 reproduce the substance of sections 1, 102 and 103 of the Constitution of the Federation, 1960 and s. 3 of the Nigeria (Constitution) Order in Council,1960. Mr. Ogundere agreed that if his submission is right s. 9 of the Pensions Act has had effect with the modification he suggests since the 1st October, 1960, and that the amendment which Parliament purported to make in 1961 was inconsistent with the constitution then in force and so void.

On the wording of s. 110(1) of the existing Constitution the question, whether the section has conferred on the Police Service Commission the power to require an officer who has attained the age of forty-five years to retire under section 9 of the Pensions Act, depends on whether the exercise of that power is properly regarded as included in “disciplinary control”.

The Appellants say it is; it appears from a circular letter to heads of departments dated 1952 that it was not so regarded during the time when the conditions of service of public officers were governed by the Colonial Regulations, but the appellants, whose good faith is not in question, are within their rights in refusing to treat the letter as binding on them, and in asking the Court to decide on the true meaning of section 110(1) of the Constitution. The respondent did not, as was submitted, concede during the correspondence that passed between him and the Commission that the power was a disciplinary one. What he did was to say that the Commission was invoking section 9 of the Pensions Act as a disciplinary measure and to protest that it had no power to do so.

It is perhaps easier to say whether any particular power does or does not come within the meaning of the expression “disciplinary control” than to offer a comprehensive definition of the expression, and we shall confine ourselves to considering on which side of the line section 9 of the Pensions Act falls, remarking only that as the meanings given to the word “discipline” in the Shorter Oxford English Dictionary include “the order maintained and observed among persons under control or command; a system of rules for conduct” and “correction, chastisement”, we think that the enforcement of rules is an element of disciplinary control.

Read by itself we do not regard section 9 of the Pensions Act as concerned with discipline at all. Subsection (1) has its counterpart in section 7(1), which enables an officer to retire on pension of his own volition on or after attaining the age of forty-five subject to giving six months’ notice if he is not yet fifty unless the Minister waives the giving of notice; he cannot be required to give reasons for wishing to retire. If there was an ordinary contract of service one would say that after the officer had attained the age of forty-five it was terminable by either party on six months’ notice, which seems more reasonable than to say that when an officer attains the age of forty-five he becomes subject to additional powers of disciplinary control. Section 9 (1) does not limit the grounds on which an officer may be required to retire, action under it is not the equivalent of dismissal and the power is not concerned with disciplinary control.

This view is reinforced by the whole pattern of the Pensions Act. Section 6 lays down that pensions shall not be granted as of right, and may be reduced or altogether withheld if it is established to the satisfaction of the Minister that the officer has been guilty of negligence, irregularity or misconduct, but section 153 of the Constitution is designed to protect the rights of an officer by providing that his power shall not be exercised without the approval of the Commission that exercises disciplinary control over the officer.

Section 7 of the Act sets out the circumstances in which a pension may be granted. The officer must have retired from the public service in the circumstances set out in one of the eleven paragraphs contained in the section; of these, paragraph (3) deals with retirement “on compulsory retirement under the provisions of section 9(1)”, paragraph (7) with retirement because of incapacity due to infirmity of body or mind, and paragraph (8) with retirement “in the case of removal on the ground of inefficiency as provided in the Act.” Thus compulsory re

Other Citation: (1967) LCN/1488(SC)