Chief Andrew Thomas V Local Government Service Board (1965)
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BRETT, J.S.C.
The appellant in this case ,Chief Andrew Thomas, was appointed to the office of President of the Oyo Divisional Grade A Customary Court in 1958, and discharged the functions of the office continuously until May, 1964, when he received a letter from the Local Government Service Board giving him one month’s notice of the termination of his appointment. In these proceedings his claim, as amended, is for “a declaration
(i) that the purported termination of the plaintiff’s appointment as the President of the Oyo Divisional Grade A Customary Court is illegal and ineffective; and
(ii) that the plaintiff is and has at all material times been entitled to receive the salaries and emoluments attaching to the said office.”
The first ground on which the claim is resisted is that the Board is not a person capable of suing or being sued, and if this submission succeeds the action must fail in limine. In rejecting it the trial judge relied largely on section 2 of the Interpretation Law, which provides that “ `person’ includes any company or association or body of persons corporate or unincorporated”, but we do not consider that “a Law to make provision for the Construction of Laws and of the Terms and Provisions usually adopted therein” is designed of itself to confer the power to sue and be sued on every unincorporated association of persons. It has been pointed out that this definition reproduces that in section 19 of the English Interpretation Act, 1889, which has never been held to have the effect suggested and was expressly said in Davey v. Shawcroft [1948] 1 All E.R. 827, not to make an unincorporated body of persons liable to criminal proceedings. In our view it is necessary in every case to look at the instrument by or under which the association is established.
The Local Government Service Board is created by section 93 of the Local Government Law, which reads as follows:-
“(1) There shall be a Local Government Service Board which shall consist of a Chairman and three other members who shall be appointed by the Governor.
(2) A member of the Local Government Service Board shall, unless he resigns or is removed, hold office for a period of five years from the date of his appointment.
(3) The Governor may remove any member of the Local Government Service Board from his office.
(4) A member of the Local Government Service Board shall be paid such salary or allowance as the Governor in Council may determine.”
The Law does not expressly empower the Board to sue or be sued, and the only provisions relating to legal proceedings are contained in section 97, which provides for a claim of privilege for the records of the Board, and section 98, which protects the individual members from proceedings in respect of their official actions. Dr. Aguda, for the Board, drew our attention to the judgment of Mocatta, J., in Knight & Searle v. Dove [ 1964] 2 All E.R. 307, where the liability in tort of a Trustee Savings Bank was in issue, and in particular to the passage at page 309, where the judge says that it was common ground between counsel that “no action can be brought by or against any party other than a natural person or persons unless such party has been given by statute, expressly or impliedly, or by the common law, either
(a) a legal persona under the name by which it sues or is sued or
(b) a right to sue or be sued by that name . As to
(c), namely parties which are not legal personae, but have a right to sue or be sued by a particular name, these may be sub-divided into
(i) partnerships: see R.S.C. Ord. 81:
(ii) Trade Unions and friendly societies, both of which types have a membership; and
(iii) foreign institutions authorised by their own law to sue and be sued … It was further common ground that no statute expressly conferred the right to sue and be sued to nominee on any trustee savings bank or on the bank the fifth named defendant. If in this case there be such right or obligation, it must, therefore, be derived by implication from the relevant statutes.”
Mocatta, J., then proceeded to examine the relevant statutes and in holding that the bank was liable to be sued in tort he attached some importance, as Dr Aguda has pointed out, to the fact that it was capable of owning, and did own, property, which is a characteristic not possessed by the Board in this case.
It is to be observed that Mocatta, J., was summarising the matters on which counsel were agreed and that neither he nor counsel had occasion to consider the position of a body created by statute for the discharge of particular public functions, or the possibility of distinguishing between liability in tort, which is what he had to decide on, and liability to be sued for a declaration. In England an action for a declaration has been held to lie against the National Dock Labour Board: Vine v. National Dock Labour Board [1957] A.C. 488; and tribunals of all kinds are proper defendants to actions for the prerogative writs, though it has never been suggested that they are liable in tort. We reject the submission that a statutory body with functions like those of the Local Government Service Board is not liable to be sued for a declaration, and we do so more readily since the statutory provisions relating to the appellant’s office are such that injustice might result if the Board could not be made a defendant to any kind of proceedings.
As Chief Williams has pointed out, three different authorities are concerned with the office of President of a Customary Court. The Court is established by the Minister under s.3 of the Customary Courts Law; its members are appointed by the Board under s.5, and the competent council nominated by the Minister is responsible for the Court premises and for the salaries of the members, under s.70. If a member who had been dismissed were to bring an action against the competent council alone he would be met by the answer that the council was merely conforming to the directions of the Board. We shall consider the submission that the council ought to have been made a party to this action later; so far as the Board is concerned we are of the opinion that the Customary Courts Law impliedly confers on it the right to be a party to an action for a declaration. Dr Aguda submits that the Attorney-General would be the proper defendant instead of the Board, as in Dyson v. Art. Gen. [1911] 1 K.B. 410, but the Regional Government has reserved no power to give orders to the Board in specific cases, and we do not consider that the Board is so closely identified with the Government as to make it appropriate that the Attorney-General should be the nominal defendant in an action of this nature. We have no doubt that the Board would be a proper party to proceedings under s.32 of the Constitution of the Federation, and we hold that it is a proper party to these proceedings.
The further submission that a declaration ought not to be granted against the Board when the council has not been joined as a defendant is in our view well founded as regards the second paragraph of the declaration asked for. As regards the first paragraph we think it desirable that we should consider the action on its merits and we give no positive ruling on the point. By a letter dated the 22nd September, 1958, the appellant was originally appointed part-time President of the Court for a period of six months. The authority for his appointment was s.5 of the Customary Courts Law, which at that date read as follows-
“(1) Where a customary court is established in accordance with section 3, the Local Government Service Board shall, subject to sections 4 and 6, appoint the persons who are to be, ex-officio or otherwise, the members of the court.
(2) The power to select such persons may be exercised from time to time as the Local Government Service Board shall consider necessary.
(3) The Local Government Service Board may dismiss or suspend any member of a customary court:-
(a) Who appears to the Board to have abused his power or to be unworthy or incapable of exercising the same justly, or
(b) For other sufficient reason.”
His appointment was extended by various periods and made a full-time one by subsequent letters dated the 25th April, 1959, 7th November, 1959,13th May, 1960, and 24th October, 1960. Section 5 of the Customary Courts Law was amended with effect from the 3rd September, 1959, by the Customary Courts (Amendment) Law, 1959, (WR. No. 34 of 1959), and the portions to which our attention has been drawn read as follows:-
“(l) Subject to the provisions of this section and of sections 4 and 6, the power to appoint, dismiss and exercise disciplinary control over members of customary courts Grade A and any member of a court required under the provisions of sub-section (2) of section 6 to be a legal practitioner shall vest in the Governor acting on the recommendation of the Judicial Service Commission in accordance with the provisions of the Constitution Order.
(5) The powers conferred by this section on the Governor acting on the recommendation of the Judicial Service Commission shall include power to appoint, dismiss or exercise disciplinary control over presidents and vice-presidents of customary courts Grade A and the presidents or vice-presidents of any other customary court required in accordance with section 6 to be a legal practitioner and the powers conferred by this section on the Local Government Service Board shall include power to appoint suspend or dismiss presidents or vice-presidents of other customary courts.
(6) The powers conferred by this section on the Judicial Service Commission or the Local Government Service Board to make appointments shall include power to make temporary appointments to the office of president, vice-president or member of a customary court where the person holding the office is unable by reason of absence or illness to discharge the functions of the office, or where the person holding the office informs the Judicial Service Commission or the Local Government Service Board, as the case may be, that by reason of a personal interest in any cause he is unable to hear and determine the same.”
The section has been amended again by the Customary Courts (Amendment) Law, 1963, (W.N. No. 28 of 1963) and the Local Government Service Board is again the appointing authority for all members of a Customary Court. The letter of the 24th October, 1960, appointed the appellant President of the Court for twelve months from the 1st October 1960. These letters were the only instruments of appointment and no formal patents or warrants were issued.
The submissions on which the appellant primarily relies are that the Board acted ultra vires in purporting to appoint him for a fixed term, and that once appointed he was irremovable except for misconduct or incapacity. These are separate issues and the second will only arise if the first is decided in the appellant’s favour. The Customary Courts Law admittedly made no express provision for an appointment for a fixed term, and although section 70A, inserted by W.R. No. 34 of 1959, empowers the Minister to provide by regulation for terms and conditions of service no regulations have been made to deal with this matter. Dr Aguda submits that the Board had the necessary power, and accepts with equanimity the consequence that the appellant may be held to have acted without jurisdiction after his last appointment expired on the 1st October, 1961. It has been pointed out that the Board did not accept this consequence in the court below, and that paragraphs 11 and 12 of the Statement of Defence read as follows:-
“11. When the renewal of the contract (as contained in letter No. JP/CC/60/51 of 2nd October, 1960) expired the plaintiff never submitted and the defendant has never received any application for a further renewal of the contract from the plaintiff.
12. The plaintiff knew or ought to know that the continuation of his employment as the President of Oyo Divisional Grade ‘A’ Customary Court was at the will of the defendant for so long a time as the defendant wanted the plaintiff and that he (the plaintiff) could terminate his employment at any time by giving the defendant the required notice.”
Nevertheless it is a consequence which in our view must necessarily follow as a matter of law if the appointment was validly made for a fixed term. This is not a case of a simple contract of service but of a contract of service for the discharge of statutory judicial functions. Such functions can only be conferred expressly, and no implied contract of service can have had the effect of empowering the appellant to continue to discharge them.
We do not consider that the nature of the appellant’s office affords any presumption in his favour. The constitution makes special provision for the tenure of office of the judges of the Supreme Court and the High Courts but not for that of magistrates, and at common law all judges held office at pleasure, as did the judges in British Colonies: Terrell v. Secretary of State [1953] 2 Q.B. 482. The greater includes the less and in the absence of any indication to the contrary the general rule, in our opinion, is that the power to make an appointment includes both the power to appoint for an indefinite period and the power to appoint for a fixed period; a school teacher might, for example, be appointed for one term, or an engineer for the duration of a particular piece of work and probationary appointment is a well-known practice.
If this is the general rule it is not for the Board to show grounds for holding that it applies but for the appellant to show grounds for holding that it does not apply, and in the end his argument based on the absence of regulations providing for terms and conditions of service recoils against him. Section 5 of the Customary Courts Law confers power to make temporary appointments to membership of a customary court where a regular member cannot act, but as Chief Williams agreed, this is merely designed to overcome the objection to having two persons holding the same office, and it does not detract from the general rule. It is common knowledge that appointments to offices in Government service, including the office of magistrate, are frequently made for a fixed term though there appears to be no statutory authority for this.
The only possible question is whether a special rule applies to an appointment to an office which carries statutory duties with it, and we see no reason for holding that in this respect the rules applying to the two classes of office are in any way different under the law of Western Nigeria. On these grounds we are of the view that the appellant ceased to be President of the Oyo Divisional Grade A Customary Court when his last appointment expired, and that this action, being based on the assumption that his appointment was still subsisting in May, 1964, is misconceived.
This finding is enough to dispose of the appeal, and we express no opinion on the other issues which were argued before us or on the reasoning of the trial judge in relation to them. The appeal is dismissed but in view of the grounds on which our decision is based there will be no order as to costs.
Other Citation: (1965) LCN/1255(SC)
