Christian S. I. Iwuji V. Federal Commissioner For Establishment & Anor (1985)
LawGlobal-Hub Lead Judgment Report
ESO, J.S.C.
The facts in this case are not in dispute. They are in deed mostly documentary. What is in dispute, as would be seen hereafter, is the material which the court of trial should have relied upon, in the determination of the issue placed before it. Two important and distinct declaratory reliefs were sought though both were geared towards the same end result and they were –
(1) that the exercise of the discretionary power of the Federal Commissioner for Establishments under his Ministry Circular No. 1 of 1964 and also the Rules for condonation of break-in-service which were attached to the Circular which Rules were made pursuant to the Pensions (Amendment Regulations. 1963, amending Regulation 15 of the Pensions Act is null and void. The exercise of the discretion was conveyed to the Appellant who was the Plaintiff in the court of first instance in two letters – No. FR.10789/174 of 25th February, 1977 and No. FR. 10789/179 of
11th March, 1977. The ground for seeking the declaration was that the Commissioner took into account irrelevant and extraneous factors which made: his decision to be unreasonable;
(2) that having regard to the Establishment Circular and the Rules for condonation aforesaid the Appellant is entitled to condonation of break- in-his service occasioned by his resignation to study law abroad.
The two letters which were referred to in the declaratory suit are relevant and they are reproduced hereunder-
(1) FEDERAL MINISTRY OF ESTABLISHMENT
PERMANENT SECRETARY’S OFFICE
P.M.B. NO. 12520 Ref.: FR 10798/174
Telegrams FEDESTABS Date: 25th February. 1977
Telephone: 24998.
Sir,
Your letter reference No.IC/CSII/1/31 of 24th November, 1976 has been referred to this Ministry by the Secretary to the Federal Military Government for consideration. I regret that as you had been informed on several occasions during discussions with me, there are no grounds whatsoever on which the Federal Commissioner for Establishments may he requested to exercise his discretion in your favour and condone the break in your service occasioned by your absenting yourself from duty without leave. As you are aware, the records in this Ministry show that as a result of your so absenting yourself from duty without leave, the Government of the then East Central State terminated your appointment with effect from 27th December, 1970. Subsequently, in January 1974, that Government cancelled the notice of the termination of your appointment and accepted your resignation with effect from 27th December, 1970. Our contention is that the circumstances of your leaving the service in 1970 do not qualify you under our existing rules for condonation of the break in your service. Although the original decision of the East Central State Government contained in the letter No. PS/1/4/61 of 10th December, 1971 to terminate your appointment for “irresponsibly abandoning your post” was withdrawn in letter No.PS/1/4/68 of 14th January, 1974 and you were deemed to have resigned with effect from the date of your absence i.e. 27th December, 1970 it is our view that in abandoning your post without having previously obtained from the appropriate authority approval of your application for study leave without pay, you were prepared to accept the consequences of your action. In the circumstances, we are unable to find any merit in your application for a condonation of the break in your service arising from your deliberate act of absenting yourself from duty without leave.
Yours faithfully,
(Sgd.) G.A.E. Longe
Permanent Secretary
C.S.I. Iwuji, Esq.,
Barrister & Solicitor,
118 Lewis Street, (2nd Floor),
Lagos State.”
(italics mine)
and
(2) “FEDERAL MINISTRY OF EST ABLISHMENT
PERMANENT SECRETARY’S OFFICE DIVISION LAGOS
P.M.B. NO. Ref.: FR. 10798/179
Telegrams Date: 11th March, 1977
Telephone: 24998.
CONFIDENTIAL
C.S.I. Iwuji, Esq ..
Barrister & Solicitor,
118, Lewis Street (2nd Floor)
Lagos.
Sir,
I am directed by the Federal Commissioner for Establishments Major-General J. J. Oluleye to refer to your letter No.IC/CSII/1/48 of 10th March, 1977 and to say that he has personally considered 1/48 of 10th March, 1977 and to say that he has personally considered your application for condonation of the break in your service from 27th December, 1970 to 21st February 1974 and that he can find no merit in the application. In the circumstances the Federal Commissioner for Establishments has not granted your application for a condonation of the break in your service.
- I am to add that the Federal Commissioner for Establishments considers that you have not raised any new point in your latest correspondence on the matter to justify a review. The cancellation by the East Central State Administration of the notice of termination of your appointment conveyed to you previously and its acceptance of your resignation with effect from 27th December, 1970 does not alter the fact that the circumstances of your leaving the service in 1970 constitute a clear break in your service. Since the East Central State Administration did not substitute “leave without pay” for the original termination of your appointment, when it had the option to do so, the Federal Commissioner for Establishments can hardly be expected to do so under the terms of this Ministry’s Circular No.1/1964 which requires the Commissioner to exercise his discretion in cases which he considers to have merit.
Yours faithfully,
(Sgd.) G.A.E. Longe
Permanent Secretary”
(italics mine again)
I would like to state briefly the facts that led to these letters and the subsequent legal action taken by the Appellant. The Appellant was a Lecturer between 1957 and 1961 in various schools and these schools were scattered all over the country including Lagos. Sometimes in 1961, he was awarded a scholarship by the Federal government to read Anthropology. This course he successfully pursued in the University of London after which he applied to the Federal Public Service Commission for appointment and he was duly appointed by that Commission to the post of Administrative Officer Class IV in November 1964. Appellant was transferred to the Eastern Region as it was known at that time and there he was until the outbreak of the civil war.
During the war, the appellant served with the rebel enclave known as the Republic of Biafra until the cessation of hostilities in 1970. After the war, appellant was re-instated into what had, as a result of the creation of States, become the East Central State. His service within the rebel enclave was not to be counted for the purpose of pension and gratuity.
Towards the end of 1970, the appellant decided to study law. He resigned his appointment for this purpose in November. 1970 by giving a month’s notice. Before then, he had applied to the Ministry of Education for the recommendation of the Students Advisory Committee, and by a letter dated 5th October 1970 (Ex. F1), he was informed by the Permanent Secretary Ministry of Education that he had secured the status of recommended private student. Appellant was also given approval to travel to the United Kingdom. This was contained in a letter written by the Secretary to the Government (Secretary Division). A letter to assist him to obtain a visa to the United Kingdom was also issued by the Ministry of Education.
Notwithstanding the letter of resignation by the appellant he, on 8th December, applied to the Ministry of Establishments (Ex. G) for study leave without pay to commence from 27th December 1970. There was no reply to this letter of application before the appellant left to study law, Things started to happen by 10th December 1971 when a letter was written to the appellant terminating his appointment “for irresponsibly abandoning” his post effective from 27th December. 1970. This cloud hung on the appellant until he completed his law studies and returned to Nigeria. Somehow, on 14th January. 1974, he got a letter from the Secretary to the Military Government to the effect that the notice of termination of his appointment which was conveyed to him by the letter dated 10th December, 1970 had been cancelled and his resignation of appointment had been accepted with effect from 27th December, 1970. With this letter (Exhibit II), the position was that the appellant voluntarily resigned his appointment and he had not been forced out of the service by termination of his appointment.
More happened. On 21st February 1974, the appellant got a temporary month-to-month appointment as Administrative Officer Grade III, and on 27th May of the same year, his appointment on probation as Administrative Officer Grade III (no longer on month-to-month basis) was approved.
The appellant was therefore in the Federal Government service as Administrative Officer Grade III until 19th May 1976 when he finally resigned his appointment. It was before this resignation that he applied for a condonation of his break in service and to which application he got the letters dated 25th February 1977 and 11th March 1977 which had earlier been reproduced in this judgment. As the dates show, the letters were received after the resignation from the service.
The learned trial Judge construed the question raised in the declaratory action, and based on the fact hitherto recited in this judgment, as one of entitlement, as of right, to condonation of the break-in-service by the appellant. It was on this basis of “entitlement as of right” that the learned trial Judge proceeded to set down the rules as contained in the circular relied upon by the appellant. The learned trial Judge then declared that as the circular required that the officer seeking condonation must “have served for at least 3 years and must also have been confirmed in his appointment before resignation, and also since the appellant was only confirmed in his appointment long after he had resigned the appointment, he failed in his claim as of right. The learned trial Judge concluded –
“It may be true that the Plaintiff satisfied all the requirements for confirmation by passing all the necessary examination, but the fact still remains that he was not a confirmed officer before he resigned to go abroad on 27th December, 1970, and this alone disqualifies him from claiming the right accorded by Ministry of Establishments’ Circular No.1, 1964 and Rules for Condonation of Break in Service attached thereto.”
The declaratory suit was accordingly dismissed.
In the Court of Appeal, the issue was whether or not the Respondent, that is the Federal Commissioner for Establishments, exercised his discretion in regard to the appellant judicially. Ademola, J.C.A., who wrote the lead judgment of the Court put it this way-
“It is the law that in a review of a discretionary matter, the Court must examine the reasons given by the authority exercising the discretion and come to a conclusion whether such reasons are within those permitted for the exercise of such discretion.”
(italics mine)
I agree with this statement of the law. The learned Justice of the Court of Appeal however refrained from making any pronouncement on this ground for, as he said, “the appellant in his grounds of appeal has not complained that such is the case in this appeal.”
Another point which the Court of Appeal refused to consider was the complaint that the trial Judge went outside the reasons given in Exhibits L1 and L2, that is the letters written by the Federal Ministry of Establishments to the appellant and which I have earlier reproduced in this judgment. Though the learned Justice of the Court of Appeal conceded that this could form a ground of appeal, it was his view that it was also not raised as a ground before the Court.
Ademola, J.C.A. then brought in Ex. A which was the Ministry of Establishments’ Circular No. 1 of 1964 containing the rules for condonation, the learned Justice considered this with Exhibits L1 and L2 which he had refused to consider alone on the principle that –
“A Court of law is to consider all the materials placed before it and to apply whatever are the relevant laws or legal principles to all the issues raised in these materials;”
and concluded that “the learned trial Judge decided correctly in his judgment in applying these rules to all the material facts before him. The Court dismissed the appeal of the appellant.
And the appellant has now appealed to this Court on four grounds of appeal. Mr. Kehinde Sofola, S.A.N., learned counsel for the appellant has in a very brilliant brief stated the issues raised in the grounds of appeal as follows-
“Whether or not the learned trial Judge was right in dismissing the Appellant’s claims on the facts and the law and whether the Court of Appeal was wrong in also dismissing the Appellant’s appeal against the High Court judgment.”
Learned counsel’s argument in the brief was that the only ground relied upon for refusing the application for condonation was that the appellant abandoned his post without prior approval of the authorities whereas the Public Service Commission had cancelled the notice of termination of appointment and substituted it with an acceptance of his resignation from the office. Mr. Sofola referred the court to de Smith the learned author of Judicial Review of Administrative Action and some authorities from the English Courts to wit – Marshall & Anor. v. The Mayor etc. of Borough of Blackpool (1935) A.C. 16; R v. Mead (1916) 85 L.J.K.B. 1065; Queen v. Adamson (1875) 1 Q.B.D. 201 and The Queen v. Boteler (1864) 33 L.I.M.C. 101.
As regards Circular No.1 of 1964, Mr. Sofola contended that the Minister had no power to modify, by what he termed, a mere circular the requirements laid down by Regulations or the Pensions Act itself. I believe Mr. Sofola’s contention in this regard must have been addressed to the second declaration sought by the appellant.
For the Respondents, it was submitted in their brief, by Mr. Ajala, of learned counsel, that the letter of 25th February 1977. (Ex. L1) should be read as a whole – counsel placed emphasis on the sentence – “the circumstances of your leaving the service in 1970 do not qualify you under our existing rule for condonation of the break in your service.” This, counsel said in the brief, would include “confirmation in the service, prior to the break in the service”. Counsel further contended that mere consideration of irrelevant factors might not per se vitiate the validity of an administrative decision, the important thing is whether the authority concerned has permitted the irrelevant matters to influence him. Now, this is an important legal contention for, as it would be seen presently, it is the determining factor of the whole issue before this Court.
The oral submissions in this Court were in line with the briefs filed and placed before us and I do not intend to go into them.
Now, perhaps this is the appropriate place to reproduce the Circular that has been referred to so much in this case. The Circular – No. 1/1964 reads
“Restoration of pension rights in respect
of Services PRIOR TO VOLUNTARY RESIGNATION
I am directed to invite your attention to the Pensions (Amendment) Regulations, 1963 published as Legal Notice No.159 of 1963, which amends Regulation 15 of the Pensions Act (Cap. 147). These Regulations allow the Minister of Establishments to condone a break in service due to voluntary resignation and the purpose of this Circular is to explain the conditions under which the Regulations will operate.
- Where an officer resigned his appointment for the purpose of making some course of study, and provided he returns immediately to the service of the Government after the completion of the course the Minister of Establishments will be prepared to consider a claim that the break in his service should be regarded as leave without pay, but it should be satisfactorily established that the officer resigned his appointment in one of the following circumstances, viz:
(a) that the officer was ignorant of the possibility of his being granted leave without pay for the duration of the course.
(b) that he applied for leave without pay but his Department did not process such an application in good time to enable him embark upon his course of study.
(c) that his application was rejected because it was felt then that the course of study proposed would not enhance his usefulness to the service.
- Under no circumstance will the provisions of the pensions Regulations apply to officers who have already retired from the service.
Any serving officer who considers he is eligible to benefit should give details of his case to his Permanent Secretary or Head of Extra-Ministerial Department who should forward them together with his recommendation, to this Ministry.
(Sgd.) M. O. Ani
Permanent Secretary
RULES FOR THE CONDONATION OF BREAK IN SERVICE RESIGNATION:
(i) The officer must have resigned his appointment with a view to undertaking some course of study.
(ii) He must have served for at least 3 years and must also have been confirmed in his appointment before resignation………………………
It is important, that by the terms of the Circular, the appointment of an applicant for condonation of break in his service must have been confirmed prior to his resignation from the service. If that particular rule were to he taken into consideration therefore, there is no doubt whatsoever that the applicant does not qualify for condonation of break in his service. However, one must examine the case before the court. The two reliefs sought are declaratory. What has been placed before the court is not an application for judicial review. It is the exercise of the discretionary power of the Commissioner under the Circular and the Rules attached thereto, that is sought to be invalidated on the ground of importation of extraneous and irrelevant factors as stated in Exhibits L1 and L2.
And I think a declaratory action is more advantageous, in this regard, to the applicant than merely seeking a judicial review by Prerogative Action for as Lord Denning said (and I agree) in Pyx Granite Co. Ltd. v. Ministry of Housing and Local Government (1958) 1 Q. B. 554 & 571 –
“It is one of the defects of certiorari that it so often involves an inquiry into the distinction between judicial acts and administrative acts which no one has been able satisfactorily to define. No such difficulty arises with the remedy by declaration, which is wide enough to meet this deficiency …. It applies to administrative acts as well as to judicial acts whenever their validity is challenged because of a denial of justice, or for other good reasons. (italics mine)
Earlier, in 1953, the same Lord Justice had said in Barnard v. National Dock Labour Board (1953) 2 Q.B. 18 d p.41-
“It is axiomatic that when a tribunal sits to administer justice, it must act in accordance with the law. Parliament clearly so intended. If the tribunal does not observe the law, what is to be done The remedy by certiorari is hedged round by limitations and may not be available. Why, then, should not the court intervene by declaration and injunction If it cannot so intervene it would mean that the tribunal could disregard the law, which is a thing no one should do in this country.” (again italics mine)
The Lord Justice was speaking of the law in England but also, in this country, no tribunal, whether administrative (as in the instant case) or judicial, should disregard the law.
The next thing is to enquire into what the Commissioner actually took into consideration before coming to his decision in this case and if they are irrelevant, the consequences emanating therefrom. To take Exhibit L1 first. This was a reply to the letter of the applicant dated 24th November 1976 which was in fact written to the Secretary to the Federal Military Government. That letter by the applicant was not tendered in evidence in the case. The letter, Exhibit L1, states the reasons why the Ministry of Establishments would not accede to the request of the appellant for a condonation in the break of his service. The Permanent Secretary Mr. G.A.E. Longe wrote-
“I regret that as you had been informed on several occasions during discussion with me”
(So the appellant not only wrote applying for this condonation, he had discussions with the Permanent Secretary of the Ministry). The Permanent Secretary continued –
“there are no grounds whatsoever on which the Federal Commissioner for Establishments may be requested to exercise his discretion in your favour and condone the break in your service occasioned by your absenting yourself from duty without leave.”
The letter then recounted the episode of the termination of the appointment of the appellant, the cancellation of notice of termination and acceptance of the appellant’s resignation from 27th December 1970. In so far as the contention of the Permanent Secretary went, the circumstances of the appellant’s leaving the service in 1970 did not qualify him under their existing rules for condonation of the break in the service.
There was nothing in Ex. L1 to the effect that the issue of non-confirmation of the appointment before he left the agitated the minds of the relevant authorities. That issue certainly was not in the contemplation of the Ministry; in the exercise of, what the Permanent Secretary, referred to as the discretion of the Commissioner on the subject. For be it noted, the issue of condonation of the break in service of an official is a matter of discretion. Regulation 15(2)(d) of the Pensions Regulations, as amended by the Pension (Amendments) Regulations 1963, L.N. 159 of 1963, which provided for the Regulations for the granting of pensions and gratuities to officers is limited to officers who have –
“voluntarily resigned from, and subsequently been re-employed in the public service in such circumstances that the Minister (Commissioner) considers it in the public interest that the break in his service should be disregarded.” (italics mine)
The Rules, in the Circular, attached to the Regulations having no statutory force, leave the Commissioner with a discretion on the matter as rightly stated by the Permanent Secretary in Exhibit L1.
Then there was Ex. L2, written again by the Permanent Secretary, Ministry of Establishments on the direction of the Commissioner. This letter also dwelt on the manner the appellant left the service. There was nothing said or suggested about the confirmation of the appointment of the appellant.
It seems to me that in so far as the lis existed between the appellant and the Commissioner there was no issue of the confirmation of his appointment before he left the service. It is not a matter the Commissioner could now rely upon as it was, from Exhibits L1 and L2, absolutely irrelevant to the exercise of his discretion in the matter. It is the entitlement of a court to investigate the action of a Minister or Commissioner, as the case may be, with a view to seeing whether or not he has taken into account matters which he ought not to take into account. See Associated Provincial Picture Houses v. Wednesbury Corporation (1948) 1 K.B. 223 per Lord Greene M.R. on p.233. For, after all, the notion of discretion imports that there is no uniquely right answer to this problem (see de Smith’s Judicial Review of Administrative Action 4th Edn. p. 278). It is a discretion because the party concerned has a choice between alternative courses of action. And, if in the exercise of his discretion the Commissioner decided to apply the yard-stick of the manner in which the appellant left the service, he cannot be heard after that to import a matter which was not in his contemplation at the time the exercise of his discretion was sought, or more explicitly not more than he had communicated to the appellant. The appellant can only rely on the reasons,
given to him by the Commissioner and nothing else for otherwise, issues could never be rightly joined between the parties.
In so far as the learned trial Judge was concerned. the issues raised in Exhibits L1 and L2 were irrelevant to his decision. But these were the only issues considered by the Commissioner. The Judge said very explicitly that the fact that the appellant was not a confirmed officer “before he resigned to go abroad …. alone disqualifies him from claiming the right accorded by the Ministry of Establishments’ Circular No.1, 1964 and Rules for Condonation of Break in service attached thereto.” But then the Commissioner never at any stage complained of this to the appellant (vide Exhibits L1 and L2). In the Court of Appeal, the learned Justice of the Court, Ademola, J.C.A. postulated that a court of law is to consider all the materials placed before it, with respect, what a court should consider are all the relevant materials placed before it, relevant to the case before him and relevant as per the /is between the parties. If the respondent never applied a material for the consideration of his discretion, that material cannot be relevant to the cause in so far as the lis between the parties exists.
And in a case of the consideration of such irrelevant material a declaration will issue. See Zamir: The Declaratory Judgment p. 179. See also cases cited by the learned author especially, Associated Provincial Picture Houses Ltd. v. Wedesbury Corporation (1948) 1 K.B. 223 & 233 where Lord Greene M.R. said-
“The Court is entitled to investigate the action of the local authority with a view to seeing whether they have taken into account matters which they ought not to take into account.”
This, however, affects only the first declaration. The second declaration is different altogether. It relies squarely on Circular No. 1 of 1964 and the Rules for condonation of break in service attached thereto. It is patent that under the Rules for condonation which require that the officer should have been confirmed before a break in the service, the appellant does not qualify. He does not qualify therefore under those Rules for the exercise of the discretion of the Commissioner. The appellant cannot be granted the second declaration sought and this was rightly rejected by the High Court and the rejection rightly confirmed by the Court of Appeal.
In the sum total, though the appellant should have been awarded the first declaration, as he was rightly refused the second declaration, his appeal must fail. What he seeks in the first declaration is in substance the content of the seond declaration. The appeal is therefore dismissed. The appellant is refused a declaration that he is entitled to condonation of a break in his service as sought.
There will be no order as to costs.
M. BELLO, J.S.C.: I had the advantage of reading the judgment of my learned brother, Eso, J.S.C. For the reasons stated therein, I agree the appeal should be dismissed with no order as to costs.
D. O. COKER, J.S.C.: I have had the privilege of reading in draft the judgment just read by my learned brother Kayode Eso, J.S.C. with which I entirely agree. I have nothing useful to add.
A. G. KARIBI-WHYTE, J.S.C.: I have had the opportunity to read before now the judgment of my brother Kayode Eso, J.S.C., to which I entirely agree. I only wish to add in concurrence and amplification my own views which in certain respects are not identical with the reasons given by my brother Kayode Eso, J.S.C.
The facts of this case are undisputed. The only issue which gave rise to this litigation is whether the first respondent was entitled on the facts before him to refuse to exercise his discretion to grant the application for condonation in the break of service of the appellant.
Appellant, who is now a legal practitioner, with his Chambers at 118, Lewis Street, Lagos was until the September 1, 1976 an Administrative Officer in the Federal Civil Service. On the 19th May, 1976, he sent to the 1st respondent a written notice of withdrawal from the said service. Appellant commenced his career in the public service on the 1st January, 1957, as a trained and Certificated Teacher. By virtue of a Federal Government scholarship, appellant was a student of the University College, University of London, from September 25, 1961, to the 10th November, 1964. On the 12th November, 1964, appellant was appointed Administrative Officer Class IV in the Federal Civil Service, and in December 1966 transferred to the Civil Service of the former Eastern Region.
At the end of the Nigerian Civil War on the 15th January, 1970, appellant was appointed to the Civil Service of the East Central State. Following a letter of admission to study law by the Masters of the Bench of the Middle Temple, London, dated 9th November, 1970, appellant in a letter dated 8th December 1970, applied to the Government of the former East Central State for a study leave without pay to enable him to pursue the course of study. On the 27th November, 1970, appellant had tendered his resignation to the Secretary. Public Service Commission, East Central State, Enugu, informing him of his proposal to travel to the United Kingdom to read law, with effect from 28th December, 1970.
The Government of the East Central State recommended appellant for the course of study, accorded him the status of a private student, gave him security clearance and the requisite facilities to enable him travel to the United Kingdom for the purposes of the course of study. Appellant travelled to the United Kingdom for further studies before he received a reply on his application for study leave without pay. The Administration of the East Central State Government, then by letter dated 10th December, 1970 terminated the appointment of appellant as an Administrative Officer with effect from 27th December, 1970. Again by letter dated 14th January, 1974, the termination of appellant’s appointment by the letter dated 10th December, 1970 was cancelled and his notice of resignation dated 27th November, 1970 was accepted.
After appellant’s course of legal studies, and he was called to the utter bar in the Middle Temple, he was reappointed as an Administrative Officer in the Federal Civil Service. on the 22nd February, 1974 on temporary basis, and on the 9th April. 1974 on permanent basis. On the 30th June, 1975, appellant applied to the 1st respondent for the exercise of his discretion to condone the breaks in his service for the purpose of computation of pension in the event of his retirement or withdrawal from the Public Service. The 1st respondent replied refusing the application. On the 19th May, 1976, appellant gave three months’ notice of his intention to withdraw from the Federal Civil Service, and actually withdrew his service pursuant thereto on the expiration of his notice on the 31st August. 1976.
Appellant then on the 17th October, 1978 issued on originating summons claiming the following two reliefs:-
“(1) A Declaration that the 1st Defendant’s exercise of his discretionary power under the Federal Ministry of Establishments’ Circular No. 1 of 1964 and the Rules for Condonation of Break in Service attached thereto, made pursuant to the Pensions (Amendments) Regulations, 1963 which amend Regulation 15 of the Pensions Act (Cap. 147) in relation to the Plaintiff, as conveyed in the 1st Defendant’s letters. No. FR. 10798/174 of 26th February. 1977 and No. FR. 10798/179 of 11th March. 1977, is null and void and of no effect on the ground that the 1st Defendant took irrelevant and extraneous factors into account which make his decision unreasonable.
(2) A Declaration that having regard to the Federal Ministry of Establishments’ Circular No. 1 of 1964 and the Rules for Condonation of Break in Service attached thereto, made pursuant to the Pensions (Amendments) Regulations, 1963, which amend Regulation 15 of the Pensions Act (Cap. 147), the Plaintiff is entitled to Condonation of a Break in his service from 27th December, 1970 to 21st February, 1974 on ground of Voluntary Resignation of Appointment so as to pursue a Course of Study in Law.”
The grounds on which appellant relies for the reliefs claimed seem to me those averred in paragraphs 18, 19, and 20 of the affidavit in support of the originating summons which are as follows –
“18. That I verily believe the 1st Defendant’s refusal to exercise his discretionary power to condonation in my favour to be wrong because it was based on irrelevant and extraneous considerations in that the 1st Defendant relied for his decision on the termination of my appointment, and the reasons given therefor, by the former East Central State Administration, leaving out my voluntary resignation of appointment which, even as the 1st Defendant admits, has cancelled, replaced and superseded the termination of my appointment.
- That I verily believe that the effect of the Federal Ministry of Establishments’ Circular 1 of 1964 is to limit the 1st Defendant’s absolute discretion under Regulation 15 of the Pensions (Amendments) Regulations and to make it obligatory on the 1st Defendant to comply with the provisions of the Circular and the Rules attached thereto in all matters of application for condonation of breaks in service.
- That I verily believe that having regard to the provisions of Establishments’ Circular No.1 of 1964 and the Rules attached thereto, made pursuant to the Pensions (Amendments) Regulations, 1963, which amend Regulation 15 of the Pensions Act (Cap. 147), I am entitled to condonation of the said break in my service so as to restore my pension rights in respect of service prior to my voluntary resignation of appointment on the 27th day of December, 1970.”
In answer to the affidavit in support of the originating summons, the 1st respondent in a counter affidavit averred, and paragraphs 3, 4, 5, 6, 7, 8 and 9, which are reproduced, maintaining that he correctly exercised his discretion under the enabling statutory regulations, were relied upon. They are as follows:
“3. That the first Defendant maintains that in the Letter No. Ps/1/4/68 of 14th January, 1974 the East Central State Administration did not substitute the words “Leave without Pay” for the original termination of the Plaintiff’s appointment.
- That the 1st Defendant also maintains that the Plaintiff’s appointment in the East Central State Administration up till the date of his application for Leave without pay on 5th December, 1970 was not confirmed and as such the application was rejected.
- That the Plaintiff had no pension rights in respect of service prior to 27th December, 1970.
- That the Rules for the condonation of break in service attached to the Federal Ministry of Establishment Circular No.1/1964 of 8th January, 1964, which explain the conditions under which the Pensions (Amendment) Regulations of 1963 (published as Legal Notice No. 159 of 1963) operate, provide that the officer seeking condonation must have served for at least 3 years and must have been confirmed in his appointment before resignation.
- That a copy of the Circular No. 1/1964 of 8th January, 1964 is herewith attached and marked Exhibit “A”.
- That the Plaintiff’s pensionable service only commenced on 9th April, 1974.
- That the 1st Defendant maintains that he correctly exercised his discretionary power under the Pensions (Amendment) regulations, 1963.”
In the High Court of Lagos State, Dosunmu J. dismissed the claims of the appellant on the ground that appellant was not confirmed in his appointment before he resigned. In his judgment the learned Judge concluded as follows – at p. 57 lines 28-
“It may be true that the Plaintiff satisfied all the requirements for confirmation by passing all the necessary examinations, but the fact still remains that he was not a confirmed officer before he resigned to go abroad on 27th December, 1970, and this alone disqualifies him from claiming the right accorded by Ministry of Establishments’ Circular No. 1, 1964, and Rules for Condonation of Break in Service attached thereto. I cannot speculate on the reasons why the East Central Public Service did not confirm the Plaintiff’s appointment before the outbreak of the Civil War.
The relevant regulations on condonation relied on by the Plaintiffs did not make any allowance for his special case, and the Defendants are not obliged to give considerations to it.”
It is pertinent to mention that the appellant’s first claim was directed against the reasons given by 1st respondent in rejecting his application for condonation in the break of his service. No where in his supporting affidavit was the question of confirmation of appellant’s appointment a substantive issue.
The reasons given by the 1st respondent for refusing the condonation in the break of service of the appellant was clearly spelt out in Exhibit “L1”, which is as follows –
FEDERAL MINISTRY OF ESTABLISHMENT
PERMANENT SECRETARY’S OFFICE
P.M.B. No. 12520 Ref. No. FR. 10798/174
Telegrams FEDESTABS Date: 25th February, 1977
Telephone: 2499H.
Sir,
Your letter reference No.EC/CSII/1/81 of 24th November, 1976 has been referred to this Ministry by the Secretary to the Federal Military Government for consideration. I regret that as you had been informed on several occasions during discussions with me, there are no grounds whatsoever on which the Federal Commissioner for Establishments may be requested to exercise his discretion in your favour and condone the break in your service occasioned by your absenting yourself from duty without leave.
As you arc aware, the records in this Ministry show that as a result of your so absenting yourself from duty without leave, the Government of then East Central State terminated your appointment with effect from 27th December, 1970. Subsequently in January 1974 that Government cancelled the notice of the termination of your appointment and accepted your resignation with effect from 27th December, 1970.
Our contention is that the circumstances of your leaving the service in 1970 do not qualify you under our existing rules for condonation of the break in your service. Although the original decision of the East Central Stale Government contained in the letter No. PS/1/4/61 of 10th December, 1971 to terminate your appointment for “irresponsibly abandoning your post” was withdrawn in letter No. PS/1/4/6X of 14th January, 1974 and you were deemed to have resigned with effect from the date of your absence i.e. 27th December, 1970 it is our view that in abandoning your post without having previously obtained from the appropriate authority approval of your application for study leave without pay, you were prepared to accept the consequences of your action. In the circumstances, we are unable to find any merit in your application for a condonation of the break in your service arising from your deliberate act of absenting yourself from duty without leave.
Yours faithfully,
(Sgd.) G.A.E. Longe
Permanent Secretary.
It is obvious from the sentences in italics that the confirmation or not of appellant’s appointment was not one of the considerations given by 1st respondent in refusing the application for condonation. 1st respondent did not seem to advert to the issue. Appellant appealed to the Court of Appeal on four grounds, which were founded on the fact that appellant satisfied all the prerequisites for confirmation and that the learned Judge failed to take cognisance of the fact.
It was in the argument of Counsel for the appellant, that the issue was raised that the learned Judge should have confined himself to the question of refusal by the 1st respondent to grant the application for condonation and should not have gone to the issue of confirmation or not of the appellant. Counsel for the respondent in the Court of Appeal, as was before us, submitted that the sole ground for refusal of the application for condonation is appellant’s abandonment of his post.
The Court of Appeal in dismissing appellant’s appeal accepted the contention of Counsel for the appellant that the learned trial Judge went outside the reasons given in Exhibits L1 and L2, in arriving at his decision in the case. The Court of Appeal, however held that this was not a ground of appeal before it, and, besides, the issue before the Court went much further that what Exhibits L1 and L2 indicated. Nevertheless the Court of Appeal held that since “A Court of Law is to consider all the materials placed before it and to apply whatever is the relevant laws or legal principles to all the issues raised in these materials,” the Court would approach this matter in the light of Exhibits L1 and L2, and A.” It was therefore held that the learned trial Judge was right in dismissing the claim of the appellant. Appellant has now appealed to this Court on four grounds of appeal which are as follows –
“GROUNDS OF APPEAL:
(1) The learned Justices of the Federal Court of Appeal misdirected themselves in law when they held that:-
“Mr. Sofola has, in his submission during the course of his argument, made the point that the learned trial Judge went outside the reasons given in Exhibits L1 and L2 in arriving at a decision in this case. He, (the Judge) as he submitted made the issue of the Appellant’s confirmation before his resignation, a determining factor in the matter before him….this could form the ground of appeal in this matter but it has not been so raised in the memorandum of the grounds of appeal filed on behalf of the Appellant.”
Nature of Misdirection
(1) The learned Justices of the Court of Appeal failed to consider their duty to do justice in the case before them and when the Counsel for the Respondent had had sufficient opportunity to reply to the submission made thereon on behalf of the Appellant and had indeed conceded the point as pointed out by the learned Justices themselves and they should have exercised the powers
vested in them by law under Order 3 Rule 2 (b) to deal with the point of substance raised.
(2) The learned Justices of the Federal Court of Appeal erred in law in holding that the learned trial Judge was right in not confining himself only to the pronouncement on whether or not the grounds relied upon by the 1st Respondent were clearly wrong in law and the Federal Court of appeal ought to have allowed the appeal in the circumstances.
(3) The learned Justices of the Court of Appeal erred in law by holding that the 1st Respondent did not fail to exercise his discretion in a judicial manner in that the said 1st Respondent based his decision on entirely wrong ground which is not supported by the facts established and thereby came to an erroneous decision in law.
(4) The learned trial Judge’s failure in law properly to construe and interprete Items 02301 and 02302 of the Civil Service Rules and to consider the Appellant’s confirmation of appointment barely six months after rejoining the Federal Service on a permanent basis on account of his cognate Administrative Service from 12th November, 1964 to the secession of civil war in 1967 were sufficient to entitle the Court of Appeal to allow the appeal as the Appellant’s right to confirmation was rendered impossible because at the said civil war and when, at the relevant time, he had satisfied all conditions precedent to be confirmed in his appointment before his resignation.”
Summarily stated, these grounds relate to (a) the duty of the trial Judge to confine himself 10 the reasons stated by the 1st respondent in rejecting appellant’s application for condonation – grounds I and 2 (b) failure of 1st respondent to base his decision on the facts established before him, (c) failure to properly consture and interprete the provisions of items 02301 and 02302 of the Civil Service Rules.
In the brief of argument filed by Counsel for the appellant, he was at pains to point out in considerable detail the reasons why this Court should set aside the judgment of the court of Appeal. Counsel submitted that the only ground relied upon the 1st respondent in refusing to exercise his discretion to condone the break in appellant’s service was because appellant’s appointment was terminated for irresponsibly abandoning his post. He argued that since, the letter terminating appellant’s appointment for that reason had been withdrawn before the exercise of the discretion, the allegation of abandoning post without prior approval had been wiped out by the withdrawal of the letter. In his submission, the factor relied upon by 1st respondent had become completely irrelevant at the time the request for the exercised of discretion was made. Counsel cited Marshall & Anor. v. The Mayor. etc. of Borough of Blackpool (1935) A.C. 16, R. v. Mead (1916) 45 L.J.K. 1065. It was further submitted that where an inferior tribunal exercised a discretionary power upon a consideration of something extraneous and extra judicial which ought not to have affected their decision, this amounts to declining jurisdiction. – The cases of the Queen v. Adamson (1975) 1 Q.B.D. 201 at p. 205 and Queen v. Boteler (1864) LJMC. 101 were cited and relied upon for this proposition. In his reply brief, Counsel for the respondent submitted that though abandonment by the appellant of his post without approval was a relevant factor which the 1st respondent took into consideration in refusing to condone appellant’s break in his service, that was not the only factor. In fact the failure to satisfy 1st respondent that appellant was confirmed in his service was also not the only factor. The other factor was appellant’s failure to satisfy some of the other conditions for condonation of break in service as stipulated in the Establishment Circular No. 1 of 1964. It was submitted that the 1st respondent considered all matters that were relevant and pertinent to the consideration of the issue before him.
He did not consider anything that was extraneous. The reasons relied upon, it was submitted, fell within Circular No. 1 of 1964.
It is of crucial importance to the determination of this appeal to consider the reasons given by the 1st respondent in refusing to exercise his discretion to condone the break in appellant’s service, and the reason given by the learned trial Judge in dismissing appellant’s claim, and the Court of Appeal for affirming the decision of the trial Judge. It is accepted on all sides that the reasons given by the 1st respondent is that contained in “Exhibit L1” where he said,
“There are no grounds whatsoever on which the Federal Commissioner for Establishments may be requested to exercise his discretion in your favour and condone the break in your service occasioned by your absenting yourself from duty without leave……..Although the original decision……to terminate your appointment for “irresponsibly abandoning your post” was withdrawn….. and you were deemed to have resigned with effect from the date of your absence i.e. 27th December, 1970, it is our view that in abandoning your post without having previously obtained from the appropriate authority approval of your application for study leave without pay you were prepared to accept the consequences of your action.”
There is no doubt that from this letter, the only reason given by 1st respondent for refusing to exercise his discretion to condone the break in appellant’s service was that appellant aba’1doned his past without having previously obtained from the appropriate authority application for study leave without pay. It is implicit in the letter in reference that appellant’s abandonment of his post without prior approval from the appropriate authority had been condoned by the letter of the East Central State Government, reference No.PS/14/68 of 11th January, 1974, which had the effect of accepting appellant’s letter of resignation with effect from the 27th December, 1970. The result of this is that at the time 1st respondent was called upon to exercise his discretion, the facts properly before him did not include appellant’s abandonment of his post without having previously obtained approval from the appropriate authority. All what the 1st respondent had before him was that appellant resigned his appointment with effect from 27th December, 1970. The issue therefore is whether 1st respondent’s refusal to exercise his discretion to condone the break in appellant’s service on the ground that appellant abandoned his post is valid If it is not whether the Court can approve his refusal to exercise the discretion on a ground other than that stated by him in his letter to appellant
The concept of discretion even in its legal usage, implies power to make a choice between alternative courses of action. Thus where the exercise of a discretion is vested, it follows that there is really no absolute answer to the solution of the question. The sign posts to the proper exercise of discretion has often been stated to be subject to implied limitations with respect to the administration of justice. In Keighley’s Case 15 Co. Rep. 139d – 140d, Lord Coke described discretions as seire per legem quod sit justem. In Rooke’s Case (1509) 5 Co. Rep. 99b – 100g, he said it was “a science of understanding to discern between falsity and truth, between right and wrong, between shadows and substance, between equity and colourable glosses and pretences, and not to do according to their wills and private affections.” In R. v. Askow (1768) 4 Burr. 2186, at p. 2189, Lord Mansfield stated that the exercise of a discretion which was not confined to the Courts, imports a duty to be “fair, candid and unprejudiced; not arbitrary, capricious, or biased; much less warped by resentment or personal dislike.” Very concisely stated, the exercise of discretion is subject to the well settled rules of natural justice. Whenever the Courts assert a power of review, the discretion is characterized as judicial. – See R. v. Manchester Legal Aid Committee, Exp. Brand (R. & A.) & Co. (1952) 2 Q.B. 413. The exercise of a discretion presupposes consideration of all the factors relevant and requisite to the exercise of the discretion. Consequently, where the person or authority vested with the power to exercise a discretion refuses to exercise the discretion and gives reasons for such refusal, the reasons or reason given must be one of the factors or factor, relevant to the exercise of the discretion. Where however, the reason for refusal so given is not any of such factors, the discretion has Brand (R. & A.) & Co. (1952) 2 Q.8. 413. The exercise of a discretion presupposes consideration of all the factors relevant and requisite to the exercise of the discretion. Consequently, where the person of authority vested with the power to exercise a discretin refuses to exercise the discretion and gives reasons for such refusal, the reasons or reason given must be one of the factors or factor, relevant to the exercise of the discretion. Where however, the reason for refusal so given is not any of such factors, the discretion has been exercised upon irrelevant considerations and is not an exercise of discretion and is invalid. see Padfield v. Ministry of Agriculture, Fisheries and Food (1968) AC. 997.
In this appeal, 1st respondent in his letter to the appellant, Exhibit “L1” gave the reasons why he was unable to exercise his discretion to condone the break in appellant’s service. The reasons 1st respondent gave were as was stated in his letter to the appellant, which has already been reproduced in full in this judgment.
It is clear from the passages in italics that the reasons for refusing to exercise the discretion to condone appellant’s break in service were because
(i) appellant absented himself from duty without leave.
(ii) as a result of (i) above, the then Government of the East Central State terminated the appointment of appellant with effect from the 27th December, 1970.
It is interesting to observe in the letter in question that the 1st respondent was aware at the time of his action that he could no longer rely on these reasons, when he said,
“Subsequently in January, 1974, that Government cancelled the notice of the termination of your appointment and accepted your resignation with effect from 27th December, 1970. Our contention is that the circumstances of your leaving the service in 1970 do not qualify you under our existing rules for condonation for the break in your service.”
It is necessary to point out that 1st respondent proceeded to give the real reasons for refusing to exercise his discretion as follows –
“Although the original decision of the East Central State Government contained in the letter No. PS/1/4/61 of 10th December, 1971 to terminate your appointment for “irresponsibly abandoning your post” was withdrawn in letter No.PS/1/4/68 of 14th January, 1974 and you were deemed to have resigned with effect from the date of your absence i.e: 27th December, 1970, it is our view that in abandoning your post without having previously obtained from the appropriate authority approval of your application for study leave without pay, you were prepared to accept the consequences of your action. In the circumstances, we are unable to find any merit in your application for condonation of the break in your service arising from your deliberate act of absenting yourself from duty without leave.”
Exhibit L2 which is in similar terms, emphasises the inability of 1st respondent to accept the fact that the termination of appellant was withdrawn and substituted with resignation. This termination of the appointment of appellant is not a factor available to the consideration of the 1st respondent at the time he was exercising his discretion. 1st respondent was therefore wrong to have taken that factor into consideration in exercising his discretion. I shall refer to the following cases to illustrate this state. In Sadler v. Sheffield Corporation Dyson v. Sheffield Corporation (1924) 1 Ch. 433, the two appellants were school teachers in the service of the respondent corporation. Under S.4(2)(b) of the Education Act 1921, the powers of the Council were delegated to an Education Committee constituted as provided under the Act. The Education Committee acting under S.29(2)(a) of the Act served notices dismissal purporting to be on educational grounds on the appellants, which appellants contested as invalid not having been given on educational grounds on required by the section; but financial. P. O. Lawrence J, having considered the case as a whole, found as a fact that the real and only grounds for the dismissal of the plaintiffs were financial grounds and that the alleged educational grounds were merely colourable. In Smith v. MacNally (1912) 1 Ch. 816, the ground for the dismissal was not the one stated by the Managers, which is, that they were not satisfied with the religious instruction given by the plaintiff, but it was that she had ceased to be a member of the Church of England, which was not “connected with the giving of religious instruction” In Martin v. Eccles Corporation (1919) 1 Ch. 387, the dismissal was said to be on educational grounds, but the actual reason was disobedience to a regulation not connected with education. In Hanson v. Radeliffe Urban Council (1922) 2 Ch. 490; where a teacher was dismissed on educational grounds because she had refused to accept a revision of her salary. It was held that this was not an educational ground. In each of these cases since the competent authority purported to act on grounds other than that for which they were authorised. The Court regarded the exercise of such powers as invalid. Counsel for the respondent in support of the judgment of the learned Judge and Court of Appeal urged on us that apart from the reasons given by the 1st respondent in refusing to exercise his discretion, there are other reasons on the material before him to enable him refuse to exercise his discretion. He contended that Exhibit L1 should be read as a whole for this purpose. The learned Judge decided the case on the ground that appellant had not shown that his appointment had been confirmed and was therefore entitled to condonation of his service. This view was adopted by the Court of Appeal. It also held that the Court was entitled to consider all the facts before it. This view is clearly wrong. The Court in the exercise of its supervisory jurisdiction over the exercise of administrative discretions is confined, as the person exercising the discretion, to the facts before it relevant to the determination of the issue before it. It is not the duty of the Court to substitute the exercise of its discretion for that being challenged. This is because where the facts are before the person exercising the discretion, he would be deemed to have taken them into consideration in the exercise of his discretion. 1st respondent had clearly indicated his reasons for refusing to exercise his discretion. I do not think it was open to the Court to rely on reasons other than those given by the 1st respondent for refusing the exercise of his discretion. The exercise of the discretion by the 1st respondent can only be considered on the grounds he has given for doing so. To do otherwise is to rely on reasons other than those given by the person entrusted with the exercise of discretion.
It seems to me established law that where reasons have been given for the exercise of a discretion, the invalidity of the reasons given cannot be cured by giving a valid reason thereafter not adverted to at the time of the exercise of the discretion. This is a proposition of law which can be constructed from general principles of law applicable to the determination of judicial or administrative discretions. For instance if the exercise of a discretion is refused for the wrong reasons, or if the reasons for refusal of the exercise of discretion are extraneous or irrelevant, or do not in fact exist, the fact that the refusal to exercise the discretion could have been founded on some other valid reason not adverted to will not, in my opinion, cure the invalidity in the exercise of the discretion. In Associated Provincial picture Houses Ltd. v. Wednesday Corporation (1948) 1 K.B. 223, it was said, “a person entrusted with a discretion must so to speak, direct himself properly in law. He must call his own attention to matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider.”
In Annamunthodo v. Oilfield Workers’ T. O. (1961) 3 All E.R. 621, it was held that if a domestic tribunal formulates specific charges which lead only to a line, it cannot without notice resort to other charges which lead to more severe penalties. By analogy, having exercised its discretion on a wrong reason which failed, the Court cannot substitute on its, own right reasons which will result in a valid exercise of discretion. The scope of the review of the exercise of discretions is subject to several factors. Mention may be made of the wording of the discretionary power, the subject matter, the authority in which the exercise of the discretion is vested, the purpose of the exercise of the discretion, the materials available to the Court, and the particular circumstances in which the discretion has been exercised. It is also very probable that the scope of the review may be determined by the form of proceedings in which the review is sought.
It is obvious that the amplitude of the discretion of the 1st respondent is not absolute. He can and, refuse to exercise his discretion to condone a break in service where any of the conditions prescribed in Circular No.1 of 1964, or so much of those conditions have not been satisfied. It is not a valid exercise of discretion to refuse condonation even where the conditions have been satisfied. Where the conditions for condonation have been satisfied there is a duty on the person in whom the exercise of discretion is vested to act. In Julius v. Bishop of Oxford (1879) 5 App. Gas. 214 at p. 225, it has been stated, by Lord Cairns:
“Where a power is deposited with a public officer for the purpose of being used for the benefit of persons who are specifically pointed out, and with regard to whom a definition is supplied by the Legislature of the conditions upon which they are called for its exercise that power ought to be exercised, and the Court will require it to be exercised.”
There is no doubt in my mind that on the facts before the 1st respondent, appellant falls within the class of person in respect of which the power of condonation was vested in 1st respondent. In such a situation, there is a duty on the 1st respondent, the donee of the power, to exercise it for the benefit of appellant – See Lord Blackburn in Julius v. Bishop of Oxford (supra) at p.241. I am satisfied therefore that the refusal of 1st respondent to exercise his discretion to condone the break in appellant’s service was found on irrelevant and extraneous considerations. The learned trial judge had no jurisdiction to substitute a reason for 1st respondent. Hence, the reason in the judgment of the learned trial Judge which was affirmed by the Court of Appeal, did not cure the invalidity exercise of the discretion of the 1st respondent. For the reason I have given in this judgment, I hereby grant the first head of claim, and declare as null and void, the refusal of 1st respondent to exercise his discretion to condone the break in the service of appellant. I now turn to the second head of claim seeking a declaration that having regard to the Federal Ministry of Establishments’ Circular No. 1 of 1964 and the Rules for Condonation of Break in Service attached thereto, made pursuant to the Pensions (Amendments) Regulations, 1963, which amend Regulation 15 of the Pensions Act, (Cap. 147 the Plaintiff is entitled to condonation of a Break in his service from 27th December, 1970 to 21st February, 1974 on ground of voluntary resignation of Appointment so as to pursue a course of study in law.
Counsel for the appellant in arguing ground 4 of the grounds of appeal rested his case on the interpretation of rules 02201 and 02302 of the Civil Service Rules and Rules of equity to contend that having passed the requisite qualifying civil service examinations for confirmation and having spent the period require for confirmation without any adverse report, the issue of confirmation of the appellant in his appointment should have been a fait accompli. Counsel however conceded for the purposes of condonation of break in service, that confirmation in the first appointment of the officer is a condition precedent. Counsel submitted that but for the intervention of the civil war, appellant would have been confirmed in his first appointment. Counsel then went on to criticise the interposition by the Minister by Circular No.1 of 1964, of confirmation as a precondition for condonation in the break of service. This it was submitted, was not a condition imposed by the Regulations. Counsel for the respondent has submitted, and I entirely agree, that the Minister is under the Regulations vested with a discretion to exercise in the public interest so that breaks in the service could be disregarded for the purposes of computing pensionable periods in deserving cases. The relevant provisions of the Regulation reads-
“15(a) Except as otherwise provided in these Regulations, only continuous public service shall be taken into account as qualifying services of a pensionable service. Provided that any break in public service caused by temporary suspension of employment not arising from misconduct shall be disregarded for the purposes of this paragraph.
(2)(a) All officer who has voluntarily resigned from and subsequently, been re-employed ill the public service in such circumstances that the Minister considers in the public interest that the break ill his service should be disregarded”.
It seems clear from this provision that the Minister is empowered by s. 15 of the Pensions Act to regulate the circumstances where he considers that a person who has voluntarily resigned and subsequently been re-employed in the public service, can have such break in his service disregarded for pension purposes. Where the Minister, pursuant to such a power vested in him, makes a regulation in the public interest, the Court is not entitled to go behind to investigate, as long as the power to make the regulation existed. – See Re Beak and Pollitzer’s Application (1948) 2 K.B. 339. The onus is on the person impugning the exercise of the power to give prima facie evidence that the regulation was not made in the public interest. Appellants are not disputing that the rule was made under an enabling statutory provisions; or that it is not within the ambit of the enabling provision. It was argued that the enabling provision merely allows the Minister to decide each case on its merit but did not permit the making of a blanket provision covering all cases. I do not think this is a valid criticism of the rule requiring confirmation of appointment as a condition before the exercise of condonation of break in service in all cases. The Court has no powers to determine the reasonableness of the regulation. In Carltone Ltd. v. Commisioners fo Works (1943) 2 All E. R. 560 it was said by Lord Greene at p. 564:
“All that the Court can do is to see that the power which it is claimed to exercise is one which falls within the four corners of the powers given by the legislature and to see that those powers are exercised in good faith. Apart from that, the Courts have no power at all to inquire into the reasonableness, the policy, the sense or any other aspect of the transaction.”
It seems to me that the regulation aims at achieving uniformity in the exercise of discretion in respect of condonation of break in service. It is in the public interest that there should be such uniformity.
For appellant to succeed in the second declaration, he shall not only show that he has a right to the exercise of discretion to condone the break in his service, he must also satisfy the Court that all the pre-conditions for condonation of break in service, including confirmation of his appointment before the break in his service, has been satisfied. It is clear on the evidence before the Court in support of the claim that he has not satisfied the conditions. The second declaration therefore fails and is dismissed.
The first declaration is that the refusal of 1st respondent to exercise his discretion to condone the break in appellant’s service for irrelevant and extraneous reasons does not by itself operate as a condonation of the break in appellant’s service. The real substance of appellant’s claim is the second head which seeks a declaration that appellant is entitled to a condonation for the break of his service. The second head of claim having been dismissed, appellant’s claim fails in its entirety.
There is no order as to costs.
S. KAWU, J.S.C.: I have had the opportunity of reading in draft the judgment of my learned brother, Eso, JSC, just delivered. I agree entirely with the judgment. I will also dismiss the appeal. There will be no order as to costs.
Appeal Dismissed.
SC.15/1984
