Civil Service Commission Imo State & Anor. V. Godwin Onyema Anuforom (2006)

LawGlobal-Hub Lead Judgment Report

IBRAHIM MOHAMMED MUSA SAULAWA J.C.A

This is an appeal against the decision of the High Court of Imo State holden at Owerri, dated 08/312001, Coram B. A. NJEMANZE, J; granting the Respondent’s application for an order of certiorari, injunctive reliefs and consequential orders against the Appellants.

The Respondent was at all material times a civil servant of the Imo State Government. He was first employed in the year 1962 as a messenger: in the civil service of the defunct Eastern Nigerian Government and later East Central State.

In September, 1975, he gained an admission into the University bf Nsukka for an under graduate course. He applied for and was granted a study leave without pay for a period of four year. He graduated with a BSC (Hons.) in Political Science in 1979.

He later in l980 applied for and was given a fresh appointment on probation by the 1st Appellant. He served as Secretary of the Imo State Executive Council from 01/4/93 until he was purportedly retired in 1999 vide Exhibit AG8 which is to the effect that:

“Mr. G.O. Anuforom (Assistant Chief Administrative Officer) Exco Secretariat office of the secretary to the state Government Owerri RETIREMENT FROM THE IMO STATE GOVERNMENT SERVICE.

I am directed to convey the civil service commission’s approval for you to retire from the Civil service with retrospective effect from 7th June 1997 after 35 years of service. This is on grounds of public interest in accordance with section 3 (i) (g) of the pensions Act of 1979.

2. Since the overstay was culpable on you, all salaries and allowances paid to you after 6th June, 1997 should be deducted en bloc from your gratuity.
3. In view of the above, you should surrender your duty and all items of Administrative officer in the Exco secretariat.
4. You are to submit your retirement/pension papers for necessary actions.

M.C. Ohale

For: Secretary to the State Government.

See page 20 of the Record. It is evident from the Record at page 19 that the Respondent had earlier in June, 1997 been issued with a notice of retirement dated 27/6/97 vide Exhibit AG6 which inter alia reads thus:

NOTICE ON RETIREMENT

I am directed to inform you that by the records in this office, you will retire from Imo State civil Service on completion of 35 meritorious services with effect from 6th December 1997. Under this consideration, you are expected to tender 6 month mandatory notice to enable this office process your papers promptly.

I am, Sir

Your obedient servant

A.C. Oguama

For: Secretary to the State Government.

In response to Exhibit AG8, the Respondent wrote a petition dated 21/9/99 (Exhibit A.G 9) to the Military Governor of Imo State complaining against what he termed “WRONGFUL RETIREMENT NFROM THE SERVICE OF IMO STATE GOVERNMENT”.

See pages 22 – 30 of the record to the effect inter alia that:

8. My Summary

8.1 I have not served 35 years. I left for further studies in September 1975.When I came back in June 1980 I was not reabsorbed and I was not promoted by my former office, Ministry of Education, on the ground that my additional qualification did not grantee automatic promotion and in view of the fact that I ceased from being listed in the normal roll since 1975 and that I was not provided for in the Estimate.

8.2 As a result of 8.1.1 took up a fresh appointment with the civil service commission based on my application for fresh appointment on the form designated for fresh appointees by the commission.

8.3 Following my success at the public competitive examination I was offered an appointment with effect from 23rd December, 198A, six month after my return from the University, and with out employment I was placed on probationary conditions prior to my confirmation and advancement to G.1. 09.

8.4 When the policy of retirement after 35 years of services was adopted, I was erroneously grouped with those who had done 35 years from the first day of their appointment, without break and those who condoned their previous services. I did not condone my leaving the service for further studies.

Thus having been aggrieved by the retirement thereof from service of the, Imo State Government, the Respondent filed an application exparte (dated 07/10/2000) on 12/l0/2000 in the trial court praying for leave to apply for the following relief:

1. An order of certiorari removing to this Honourable court for the purpose of being quashed the letter SGI/A/P.273/552 dated 16th September, written by the 2nd Respondent to the applicant by which the applicant was purportedly retired from the civil service of Imo State.

An order of certiorari removing to this Honourable court for the purpose of being quashed any purported retirement or approval of the retirement of the applicant from the civil service of Imo State b1, the Ist Respondent as contained in letter by the 2nd Respondent to the Applicant viz ref.

SGI/A/P.275/552.

An order of court prohibiting the 1st and 2nd Respondents jointly and severally, or through any other officers of the government of Imo State, from retiring or purporting to retire the applicant from the service of Imo State on the ground of service for 35 years.

4. An order on the Respondents to restore the applicant to his office in the civil service Imo State and to pay to the applicant all emoluments due and the to applicant from September 1999 until the applicants restoration to his office in the civil service of Imo State.
5. An order of court that in compiling the applicants entitlement under relief No 4 above, account shall be taken of the applicant’s promotion which was due 1998 and his 1999 commend promotion.

The exparte application inquestion was predicated on the following grounds:-

GROUNDS UPON WHICH RELIEFS ARE SOUGHT

1. The applicant was retired on grounds of public interest that is for cause under section 3 (i) (d of the pensions Act 1990 without being given opportunity for fair hearing contrary to the rules of natural justice: and section 36 (i) of the 1999 constitution of the Federal Republic of Nigeria.
2. There is no existing law requiring the retirement of any civil servant on the ground of service for a period of 35 years.
3. The applicant has not attained the age of 60 years as provided for mandatory retirement under the pension Act 1990 applicable to Imo State.

See pages 2 -5 of the Record.

It’s instructive that on 14/11/2000 the said exparte application was moved by the applicant’s counsel and accordingly granted by the trial court thus:

RULING,

The application is granted. Leave is hereby granted to the Applicant to apply for an order of certiorari. The Applicant shall enter into a bond in the sum of N100, 000 securities to prosecute the case.

It is hereby ordered that all actions relating to this matter be stayed until the final determination of this case. The Respondents in particular are hereby restrained from doing anything whatsoever which may touch or affect this case until the final determination of the case. The substantive motion is fixed for 28/ 1/2000 for hearing.

See page 34 of the Record.

At the conclusion of the hearing of the submission of the parties learned counsel upon the substantive motion inquestion, the learned trial judge delivered the ruling thereof on 08/3/2001 to the effect, inter alia, that –

“In the circumstance the application succeeds. I hereby order that an order of certiorari be issued and it is hereby issued to quash the document Exhibit AG8 annexed to Exhibit “8” and its contents, and Exhibit AG 6 an annexed to Exhibit “B” and its contents.

I therefore make the following orders.

l. The letter Reference No SGl/A/P.273/552 of 16/9/99 and its contents, that is, Exhibit AG8 of Exhibit “B” are hereby quashed.

2. The letter Reference No SGI/P.275/552 of 27/6/97 and its content, that is Exhibit AG6 of Exhibit ‘B’ are hereby quashed.
3. the Applicant is to return to his employment as a civil servant as it letters reference Nos SG1/A/P.275/552 of 16/9/99 that is Exhibit AGs of Exhibit ‘B’ and SGI/A/P.275/552 of 27/6/97 that it: Exhibit AG6 of Exhibit ‘B’ never existed.
4. The Applicant is entitled to be paid all his salaries, allowances and emoluments due to him from September, 1999 when Exhibit AG I of Exhibit ‘B’ was written and it purportedly took effect, Reliefs Nos. 3 and 5 in the motion paper for the prohibition of the Respondents from retiring the-applicant from service on the ground of service for 35 years and also for the taking in to account of the applicants promotion in 1998 and 1999 command in computing his salaries, allowances and emoluments respectively are refused.

See pages 69 and 70 of the Record.

Being dissatisfied with the aforesaid ruling and consequential orders of the Trial court, the Appellants have filed this appeal which is predicted on three grounds. It is instructive that parties have filed, exchanged and accordingly adopted their respective Briefs of Argument.

In particular Appellants Brief (dated 27/6/06) was filed on 28/6/06. Three issues have been formulated therein, to wit:

(a) Whether the trial court was right in holding that this is a proper case for order of certiorari and that the letters -Exhibits AG 8 and AG 6 of Exhibit B are hereby quashed:

(b) Whether the court was right to suo motu extend the life of an application which was brought out of time with out any application for extension of time?

(c) Whether the trial court was right in holding that the Respondent, who had been retired on grounds of public interest under the pension Act, be restored to his office and for all his emolument to be paid.

On his own part, the Respondent has in the Brief thereof (dated l4/7/06) filed on 18/7/06, inter alia, raised a preliminary objection challenging the competence of the appeal on the ground that it “was not brought within time and is an abuse of the process of this Honourable court”.

The Respondent has also identified 3 issues therein to wit:

“(a) whether the trial court was not right in holding that the certiorari was applicable in his case.

(b) Whether the trial court was not right in regularizing the application before it.

(c) Whether the order to pay Respondent’s unpaid emoluments was not proper.

In response to the Respondent’s brief, the Applicant filed a Reply Brief (dated 28/7/06) on 10/8/06. I have deemed it expedient to first deal with the issue of preliminary objection raised by the Respondent in the Brief thereof and replied thereto in the Appellant Reply Brief in question.

As it were, the argument of the learned senior counsel on the preliminary objection is predicated on the grounds that:

The purported appeal which is copied at pages 51-56 bears neither a date upon which it was signed nor a date upon which it was filed.

…the record of appeal was only signed on 15/5/2003 and the appeal number is CA/PH/191/2003.

Without more, his Honourable court is with respect, not in a position to presume that the notice of appeal came in to existence earlier than 2003 since appeal number is assigned upon transmission of the Notice of Appeal from the High Court to the Court of Appeal.

Appeal from a final decision of the High court lies to the court of Appeal within ninety days of delivery of the decision. In the absence of any date reasonable conclusion is that date of filing is unknown.

The only reference from available facts is that the Notice of Appeal could not have come in to existence prior to 2003,for a decision delivered on 8th March 2001 an appeal showing only a 2003 date on the face of the record of appeal with a 2003 appeal number, is out of time and incompetent and ought to be struck out. This Honourable court is urged to strike out the purported appeal.

2. REPLY TO THE PRELIMINARY OBJECTION

2.01 The Appellants humbly submit that the Appeal filed in this court is competent for the following reasons:

(a) Judgment was delivered in this suit in the lower court on 8th March 2001, the Appellant filed their Notice of Appeal in the court below within time the counsel who prepared the Notice did not include any date and the court official who assessed it did not insert the date of filing (page 56 of the Record). The Notice of Appeal however, was exhibited in the motion for stay of Execution filed in the lower court on 22no March, 2001. This is at pages 71 -75 of the records. There is therefore a presumption that the Notice of Appeal was filed before or on 22nd March, 2001.

(b) The date the record of appeal was signed and the appeal numbers (stated in paragraph 2.01 of Respondents Brief) with humility can not be used to determine when the Notice of Appeal was filed.

(c)The summons to parties by Registrar to settle Record and the settlement of Record are at pages 76 and 77 of the record.

(d) It is trite that appeal is deemed to have been brought when the Notice of Appeal has been filed in the Registry of the court below; order 3 Rule 5, Court of Appeal Rules.

(e) It is the duty of the Registrar of the court below under order 3 Rule 8, court of Appeal Rules, to enclose on the Notice of Appeal the fees, receipt number and the date of payment and to transmit the record of appeal to the court of Appeal.

(f) It is the Registrar of the court that enters the appeal in the cause list order 3 Rule I3 (2). The Honourable court is most humbly urged to hold that the Notice of Appeal was filed on 22nd March 2001. We most humbly urge the court not to punish the Appellants for the mistake of the court registry or the carelessness, negligence or in advertence of counsel. AG FEDERATION V. AJAYI (2002) 12 NWLR (part 682) 809; LONG-JOHN V. BLACK (1998) LRCN 3854, at 3893 (i). The Appellants have not been shown to have been guilty of any negligence.

It is humbly submitted that the appeal was brought within time; it is competent and not an abuse of the process of this Honourable Court.

I have accorded an ample regard upon the submissions of the two learned counsel and vis-a-vis, he record of proceedings of the trial court. There is no doubt that the Notice of Appeal contained in pages 51 – 56 of the Record is neither dated nor carries the date on which it was supposedly filed in the lower courts Registry. There is, however a sufficient proof to show that it was received and fees paid therefore duly assessed at a total of N70.00 by the Registrar of the court below, Thus, as admitted by the learned Assistant Director the omission to insert the dates was entirely the fault of the counsel that drafted the Notice of Appeal and the Registrar of the court below that assessed and processes same. As rightly alluded to by the learned Assistant Director the copies of the said Notice of Appeal had earlier been exhibited in the Motion for stay of execution which was filed in the lower court on 22/3/2001.See pages 71-75 of the Record. Thus, this lends credence to a presumption that the Notice or Appeal was filed on or before the said 22/3/2001. The intentions of the learned senior Advocate that the said Notice of Appeal could not have come into existence earlier than 2003 is, with due respect no doubt fallacious.

It is trite that by virtue of order 3 Rule 5 of the court of Appeal Rule, 2002, an appeal shall be deemed to have been duly brought when the notice of appeal has been filed in the Registry of the court below. For the avoidance of doubt, a distinction ought to be drawn between bringing or filing an appeal and entering an appeal. As alluded to above, an appeal can only be brought or filed in the court below; order 3 Rule 5 of the court of Appeal Rules (supra). Whereas, an appeal shall be deemed to have been entered in the court when the relevant record of proceedings in the lower court has been duly transmitted to and received in the lower court has been duly transmitted to and received in the Registry of this court. See order 1 Rule 21 (1) of the court of Appeal Rules (supra); OYO STATE INEC V. AG OYO STATE (2006) ALL FWLR (part 334) 2017 paragraphs B-C.

It is rather obvious that the omission regarding the dates on inquestion on the face of the Notice of Appeal was attributable to the negligence of both the Appellants counsel and the lower courts Registry. I am not unaware of the firm stand of this court and nay the Supreme Court that “Rules of court are meant to be complied with”. See SOLANKE v. SOMEFUN (1974) JSC 141 at 141; NNEJI V. CHUKWU (1988) 3 NWLR (part 81)184; NDUKA V. APPIO (1993) 5 NWLR (part 292) 201. However,most cherishingly, it is also a trite golden principle of law that the sin of counsel and nay court Registrar (as in the instant case) ought not be visited on the litigant, most particularly having due regard to the glaring fact that the appellants were not shown by the Respondent to have been personally guilty of any negligence. See LONG-JOHN V. BLAKK (supra) (1998) 59 LRCN 3864 at 3893 paragraphs H – I.

To hold otherwise would, in my opinion amount to breaching the right to fair hearing accorded the Appellant under Section 36 (1) of the 1999 constitution , (supra) which cherishingly provides inter alia that:

In the determination of his civil rights and obligations including any question or determination by or against any government, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.

It may as well be posited that the word “person” as couched in the above section 361 (1) denotes a living person as well as juristic person; thus applicable to the Appellants as much as the respondent. It is trite that the well cherished principle of fair hearing is not merely a technical doctrine. It is rather one of substance. Undoubtedly, it is not the question of whether a party is entitled to be heard before a decision is reached; but rather whether the had, as a matter of act, been accorded an opportunity to be heard. See BAMAIYI V. THE STATE (21001) FWLR (part 46) 956 at 974 paragraphs D – E per WAIFO JSC, thus:

“Once an appellate court comes to the conclusion that the party was entitled to be heard before, a decision was reached but was not given opportunity of hearing the order or judgment thus entered is bound to be set aside.”

See also KOTOYE V. CBN (1989) NWLR (part 98) 419; ATANO V. AG. BENDEL STATE (1988) 2 NWLR (part 75) 201; NTUKDEM V. OKO (1986) 5 NWLR (part 45) 909. Thus, in the light of the foregoing postulations. I have no hesitation whatsoever in h preliminary objection is unmeritorious and it’s accordingly hereby discountenanced.

Having contrasted the 3 issue formulated by the Appellants Brief with those of the Respondents, I have had very little, in any, difficulty in appreciating that they are not at all at cross purposes. I have thus deemed it appropriate to adopt 3 issues formulated by the Appellants for the purpose of determining this appeal; after all it’s their own appeal. See GUDA V. KITTA (1991) 12 NWLR (Part 629) 21.

ISSUE NO 1:

“Whether the Trial Court was right in holding that this is a proper case for order of certiorari and that the letters Exhibit AG8 and AG6 of Exhibit B are hereby quashed”

It is said that this issue covers ground one of the Grounds of Appeal.

Reference was made by the learned Appellants counsel to sections 207 and 318 of the 1gggconstitution (supra) conferring delegatory powers to the 1st Appellant and defining the term “Civil service of the state” respectively’ That’ the trial judge was wrong in holding that certiorari lies to quash Exhibit AG8 annexed to Exhibit ‘B’ and its contents and Exhibit AG6 annexed thereto; see pages 19 and 21 of the Record.

It’s contended that in making Exhibits AG8 and AG6, the 2nd Appellant was not under any duty to act judicially. See ARZIKA V. GOVERNOR OF NORTHERN REGION (1961-) ALL NLR (part 1- iv) 379.That, no grounds were established by Respondent’s counsel to warrant the granting of an order of certiorari, which allegedly does not even apply in the instant case. Reference was made to STATE V. THE PRESIDENT GRADE ‘A’ CUSTOMARY COURT OYO EXPARTE ALIMOTU ATOKE (1967) NMLR 269 CIVIL SFRVICE PROCEDURE IN NIGERIA, by FIDELIS NWADIALO, 2nd Edition, at page 1056 regarding grounds essential for the grant of order of certiorari.

Counsel submitted that in an application for certiorari, it is the legality, not the correctness of the action that is looked at. See GOVERNOR OYO STATE & ORS v. FOLAYAN & ORS (1995) 8NWLR (part 413) 292 ar322- 323 paragraphs H – B. That the trial judge was wrong in holding that Exhibit AG8 did not emanate from the 1st Appellant. See section 207, 1999 constitution which empowers the 1st appellant to any officer or body in Government.

See also section 133 (a) and 134 (1) of the Federation 1990.

The court is thus urged to allow the appeal on this ground.

On the other hand, the submission of the learned senior counsel on issue No 1 is inter alia, to the effect that its clear that the Appellants are disputing the competence of the trial court to grant the relief of certiorari in a circumstance of an administrative act and not the propriety of the order itself. According to the learned senior counsel:

The notion of certiorari being limited to judicial or quasi judicial acts is now an absolute legal concept. This is because since 1976 the supreme court of Nigeria has through the case of A.K HART V. MILITARY GOVERNOR of rivers state (1976) 11sc 211 imported in to Nigeria law the modern concept of the applicability of certiorari to non judicial act.

It was thus contended that both the 1st and 2nd Appellants are subject to an order of certiorari; as it can not be argued that both do not need to act fairly in deciding whether or not the Respondent ought to be retired. It was contended further that HARTS case (supra) is apposite to the retired “in the public interest’ on the state.

Again, it was argued that Exhibits AG6 and AG8 emanated from the 2nd Appellant whose office is provided for under section 208 (2) (a) of the 1999 constitution (supra): that it’s clear from the provision of the constitution that the 2nd Appellant is excluded from the category of offers to whom the 1st Appellant could delegate its functions to appoint in to or dismiss from or exercise disciplinary control over persons employed in the civil service of a state. That, there is even no evidence on record that the 1st Appellant did in fact delegate its function to the 2nd Appellant. That, reference to Exhibit G8 as approval by the 1st Appellant is no evidence of authorization of 2nd to do the act since the act would logically have taken place before an approval would arise. Further references were made in that regard to WILSON v. AG BENDEL STATE (1985) 2 SC 191 at 192; KATTA V. CEN (1991) 9 NWLR (part 214) 126 at 146 B-E

It is urged that the learned trial judge was right when he held that the 2nd Appellant had no competence to retire the Respondent. The court is thus urged to resolve issue No 1 in the affirmative, dismissed ground one of the grounds of appeal and the appeal itself.

The Appellants in the Reply Brief thereof are however of the view that the act of the 2nd Appellant was purely administrative and that HART’S case (supra) relied upon by the learned senior counsel for the Respondent is not applicable to the instant case. That in HART’S case (supra), the Appellant was indicted for various allegations by the civil service commission which reported and recommended disciplinary action against him to the military Governor. The Governor in turn approved the recommendations with some modification which he lacked the constitutional power to do. Contrariwise, its contended that in the instant case there is no disciplinary under one in Exhibits AG6 and AG8: that the Respondent was retired merely on grounds of public interest under the pensions Act; that the 2nd Appellant was delegated by the 1st Appellant to communicate the decision thereof to the Respondent in accordance with section 207 of the 1999 constitution.

It is trite principle of law that an administrative body or authority in ascertaining facts has a duty to act judicially notwithstanding that the proceedings thereof have none of the procedures or formalities of and are not conducted in accordance with the practice and procedure of court of law. As authoritatively held by the Supreme Court:

“The modern concept which however, commends itself to us is that the duty placed on such a body is to act fair” per FATAYI WILLIAMS, JSC (supra) at page 633 paragraphs 40-45.

Most undoubtedly, its also trite law that wherever any body or persons having legal authority to determine questions affecting the rights (and obligations) of subjects, and having the duty to act judicially or fairly, act in excess or contrary to their legal authority, an order of certiorari or prohibition would lie. It does not matter whether such “body of persons having legal authority to determine question affecting the rights (and obligations) of subjects” is a judicial” or “administrative” tribunal. According to the Supreme court, in HART’S case (supra):-

It is the same with individual officers (as in the instant case) discharging public functions (see R.V. BOYCOTT & ORS EXPARTE KEASLEY (1939) 2 K.B. 651), and to ministers of the crown such as in the case of the King v. Minister of Health Exparte Yatte (1930) 2 K.B. 98. (Per Bracket added). FATAYI WILLIAMS JSC (as he then was) at 634 paragraphs 10 15; see also R. V. ELECTRICITY COMMISSIONERS (1924) 1 K.B. 171 at 204-205.

It is needless to state that the case of ARZIKA V. GOVERNOR NORTHERN REGION (supra) heavily relied upon by the Appellant learned counsel was a High Court decision, which is not only out of reality of the current situation but also not binding on this court. By the well cherished golden rule of stare decisis, this court has a duty to be bound by the wise and authoritative decision of the Supreme Court in HART V. MILITARY GOVERNOR OF RIVERS STATE (supra).

From the above postulations there is no doubt that the trial court had the jurisdiction to entertain the application and make the necessary order for certiorari to issue quashing the non-judicial act i.e. administrative act of the Appellant. On the issue of whether or not the trial court was right in holding that this is a proper case of certiorari and thereby quashing Exhibits AG6 and AG8, referred to above, I have deemed it expedient to allude to the record of the lower court at pages 16-18, especially at page17 paragraphs 5-25 thus:-

“A state civil service commission shall comprise the following members-

(a) a chairman; and

(b) not less than two and not more than four other persons, who shall in the opinion of the Governor are persons of unquestionable integrity and sound political judgment.

2. (1) the commission shall have power without prejudice to the powers vested in the Governor and the state judicial service commission to-

(a) Appoint persons to offices in the state civil service; and

(b) Dismiss and exercise disciplinary control over persons holding such offices

2. The commission shall not exercise any of its power under such paragraph (1) of this paragraph in respect of such offices of head of divisions of ministries or of departments of the Government of the state as may from time to time be designated by an order made by the Governor except after consultation with the Head of the civil service of the state.

What is more, section 207 of the 1999 constitution (supra) is to the effect that-

“207. subject to the provisions of this constitution, a state civil service commission may, with the approval of the Governor and subject to such condition as it may deem fit, delegate any of the powers conferred upon it ,by this constitution to any of its members or to any officer in the civil service in the state”..

The office of the 2nd Appellant, on the other: hand is also a creation of the constitution by virtue of section 208 thereof which inter alia provides thus:

208. — (1) power to appoint persons to hold or act in the office to which this section applies and to remove persons so appointed from any such office shall vest in the Governor of the State. 2. The offices to which this section applies are namely _

(a) Secretary to the Government of the state.

With particular regard to the instant case no evidence was adduced at the trial court to show that the 1st Appellant had at any time delegated its power to the 2nd Appellant or any person for that matter, to issue out Exhibits AG6 and AG8 in question. It is common ground that at the time the Respondent was purportedly retired as a result of Exhibit AG8 was a public servant in the services of Imo State serving as secretary of the Executive Council. A close perusal of the provisions of PART II of the THIRD SCHEDULE Paragraph A 2 (1) and (2) to the constitution (supra), shows clearly and unequivocally that the power to appoint, discipline, retire or dismiss the Respondent from the state service is duly vested in the 1st Appellant. Thus in the absence of any clear evidence of delegation of the 1st Appellants power to the 2nd Appellant, Exhibits AG6 and AG8, are as rightly held by the learned trial judge, null, void, and of no effect whatsoever. There is no doubt that the purported retirement of the Respondent vide Exhibits AG6 and AGS, has amounted to a flagrant usurping of the constitutional powers of the 1st Appellant by the 2nd appellant. I consider it highly irregular and reprehensible the 2nd Appellant had put himself and the Government of Imo State in the unfortunate albeit unnecessary situation where he had to take a decision which he had no constitutional power to take. As alluded to above, it’s a trite principle of law that wherever any body of persons (or authority) having legal authority to determine questions affecting the light of subjects or citizens, and having the duty to act judicially or fairly, acts in excess or contravention of their legal authority, an order of certiorari or prohibition would issue. See HART V. MILITARY GOVERNOR RIVERS STATE (supra) at 634 pagraphs 10 – 15.

Thus, in the light of the above reasoning, my answer to issue No 1 is no doubt in the affirmative. And also hold.

ISSUE NO 2:

The above issue is said to have been distilled from ground 2 of the Grounds of Appeal. It raises the question of whether the lower court was right 1.o have suo motu extended the time to file the application which was brought out of time without any application for extension of time. Reference was made by learned counsel to Appellants to order 43 of Imo State High Court (Civil Procedure) Rules, 1988 which he said was not complied with by the Respondent. See ABDULAAI V. GAPA (1992) 2 LRCN 144 at 159; order 43 Rule 4

(2). MADUKLU V. NKEMDILIM (1962) ALL NLR 587.

That, the application having been brought out of time, invalidates the whole proceedings. Ser RE. APPOLLOS UDO (1987) 4 NWLR (part 63) 120.

Thus, the application is statute barred; EGBE v. ADEFARASIN (1985) 1 NWLR (part 3) 549.

It was further contended that a court should-nor grant any prayer nor asked for by a party in a proceeding. See EKPENYONG V. NYONG (1975) 2 SC 71.

The court is urged to thus allow the appeal and dismiss the application for judicial review by way of certiorari inquestion.

On his part, the Respondent’s learned senior counsel, inter alia submitted that order 22 Rule of Imo State High Court (Civil Procedure) Rules (supra) is of general application to all parts of the Rules where in times is fixed for the doing of any act in a proceeding. That, order 43 is not an exception; so also is order 2 which provides that failure to comply with any of the rules is to be treated as an irregularity which the trial court has competence to remedy. See UBA LTD V. NWORA (1978) 11-12 SC 1 at 9-10. That, the act of the trial judge was within his competence under the Rules: the Appellants complaint is thus lacking in merit. The Court urged to thus resolve issue 2 in the affirmative and dismiss the ground two.

I have accorded an ample regard upon the submissions of the two learned counsel on issue No 2 and vis-a-vis t re authorities referred to therein. It’s instructive that the learned trial judge had in the Ruling thereof dated 08/3/2001 contained in the Record especially from pages 45 – 47 thereof extensively alluded to the submission of learned counsel on the issue of the implication of filing the application on an order of certiorari out of time by the Respondent.

References were made to various authorities including OBIORA V. OSELE (1989) 1 NWLR (part 97) 279 at 302 to the effect that –

“The point is that the spirit of justice does not reside in Rules of court, in forms and formalities nor in technicalities. These should all aid and not defeat justice.”

Having thus reviewed the submissions of learned counsel on the issue, the learned trial judge came to the conclusion that:

In the circumstances of the facts stated above, I do not think that it was unreasonable for the Applicant to have waited for so long before bringing the application.

In the interest of justice therefore, I grant the Applicant an extension of time to bring this application. I order that the motion Ex-parte for leave to apply for certiorari filed on 12/10/2000 is to be deemed to have been filed within time.

In my view, having considered the circumstances surrounding this case as a whole, the granting of extension of time by the learned trial judge, suo motu, to the Respondent to file the application and for deeming the motion ex-parte for leave to apply for certiorari as having been filed within time, is neither novel nor irregular.  It is my view that, considering the extent of the frustration to which the Respondent had been subjected by the appellants in the lawful pursuit of justice.

I can not but commend the learned trial judge for having exercised his discretionary power as he did, in favour of the Respondent. As the supreme had stated in WORA’S case (supra).

Surely, this discretion, which the learned Chief Judge undoubtedly has in that matter, must be exercised judiciously, bearing in mind that it is the duty of the court when ever possible not only to minimize the cost of litigation but also to see to it that justice is not delayed unnecessarily……………

In our view, the learned Chief Judge, in the exercise of his power under order 18 rules 6 should have extended the time Suo Motu up to 18th April 1976, the delay when he delivered his ruling. By ordering the Defendants as he did to apply within ten days to file another statement of defence, the learned Chief judge if we may say so again with respect was merely taking refuge in an unnecessary legal technicality which would obviously delay the hearing of the action further, We think he should have extended the time to the file the statements of defence to the date of his ruling, order that the statements of defence already file had been duly filed and then fix and then fix a date for the hearing of the case.

The above Supreme Court’s case is no doubt a veritable authority on the fact that the days when a matter can be defeated merely on technical points are gone. Most undoubtedly; courts, as cherishable temples of justice, are purposely established to administer substantial justice and not technical justice between parties. In view of the, foregoing reasoning there is no basis whatsoever to interfere with the trial courts exercise of its discretionary power; which I believe ii exercised both judicially and judiciously. Resultantly, my answer to issue No 2 is most undoubtedly in the affirmative. And also hold.

ISSUE NO 3;

This issue is said to have been distilled from ground 3 of the Appellants grounds of appeal. It raises the question of whether the learned trial judge was right in holding that the Respondent be restored to his office and paid all his emoluments in spite of his having been retired by the Appellant.

The argument of the Appellants on this issue is, inter alia, to the effect that (i) the Respondent did not challenge or protest his notice of retirement vide Exhibit AG8; ii) that there is nothing in either Exhibits AG6 or AG8 to imply that the Respondent’s retirement was as a result of any disciplinary action; thus rendering chapter 4 of the Imo State Civil Service Rules, 1979, in applicable to the instant case; iii) that, rather the Respondent failed to comply with chapter 11 of the Civil Service Rules (supra); iv) that the term “public interest” is not defined by the pensions Act, thus the definition of similar term as contained in the Civil Service Rules (supra) “can not be imported into the pensions Act”; that its trite law that meanings can not be read into a document when the wordings thereof are clear and unambiguous. The Appellants learned counsel thus urged on the court to answer issue No 3 in the negative, reverse the order of the court below that the Respondent be restored to his office and paid all emoluments due thereto.

On his own part, the Respondents learned senior counsel submitted, inter alia, on issue No 3 that ground 3 covered under this issue is with out any merit.

Reference was made to the lower court’s ruling especially at 49 thereof regarding the findings of the learned trial judge that the 2nd Appellant had no competence to retire the Respondent. That, there was no appeal against this conclusion on lack of 2nd Appellants competence to retire the Respondent.

According to the learned senior counsel, “the purported retirement is deemed not to have occurred at all and the respondent is deemed not to have occurred at all and the respondent is deemed not to have left the service at any time. That, the trial court’s order to that effect is unassailable and this court is urged to thus affirm same.

On the Appellants’ submission to the effect that the Respondent’s retirement by the 2nd Appellant does not imply a disciplinary action, t1e learned senior counsel replied thus:

‘5.03 (ii) Section 3 (1) (g) of pension Act under which the Appellant claimed to have acted provides that a person who is retired in the public interest shall not be granted pensions or gratuity. If this is not See also Rules 04114, 04107 and 04108 of the Imo State Civil service Rules (supra).

It was further contended that the Respondent never claimed what he was illegally retired for public interest but that his claim was that:

He was illegally retired by the 2nd Appellant on the ground that he had served for 35 years when he had not so served. It was the Appellant who, finding themselves unable to grapple with the obvious fact of the Respondent not serving 35 years, presented the issue of public interest as a shield.

I think I can not agree more with that submission! The Record of the trial court is unequivocally clear as regards the state of the pleadings, the submissions of the parties learned counsel and vis-a-vis the findings, and consequential orders of the learned trial judge thereupon. See most especially page 48 of the Record wherein the learned trial judge appraised the issue at stake, most particularly regarding the contents of Exhibit AG8 thus:

“In order to fully appreciate the issue in controversy I set out hereunder the contents of the said Exhibit AG8. It reads:

RETIREMENT FROM THE IMO STATE GOVERNMENT SERVICE.

I am directed to convey the civil service commission’s approval for you to retire from the Civil service with retrospective effect from 7th June 1997 after 35 years of service.

This i1 on grounds of public interest in accordance with section 3 (i) (g) of the pensions Act of 1979. 2. Since the overstay was culpable on you, all salaries and allowances pied to you after 6th June, 1997 should be deducted en bloc from your gratuity.

3. In view of the above, you should surrender your duty and all items of Government property in your possession to the most senior Administrative offer in the Exco secretariat.
4. You are to submit your retirement/pension papers for necessary actions.

Contrary to the contention of the Appellant learned counsel in the Reply Brief thereof at paragraph 5.03, its rather obvious that as rightly postulated by the learned senior counsel that under the provisions of section 3 (1) (g) of the pension Act (supra) the Respondent would not be entitled to any pension or gratuity. The provisions of the said section 3 (1) (g) of the pension Act (supra) are to the effect that:

“3.(1) No pension or gratuity shall be granted under this Act to any officer except on his retirement from the public service in any of the circumstances that is

(g) If he is required by the Federal Civil Service Commission to retire on the ground that his retirement is in the public interest;”

Most undoubtedly, the implication of section 3 (i) (g) of the pensions Act (supra) is that for the Respondent to quality, to be entitled to pension or gratuity under paragraph (g) —

(i) The Federal Civil Service Commission must have required him to so retire on the ground that his retirement is in the public interest.

(ii) That he is a staff or employee of the Federal Civil Service.”

From the foregoing postulation, its rather obvious that the Appellants reliance on the said section 3 (1) (g) of the pensions Act in retiring the Respondent on the alleged “ground of public interest” is rather fallacious and highly preposterous, to say the least. Thus my inevitable answer to issue No 3 no doubt in the affirmative. And also hold.

Hence, in the final analysis and for all the reasons I have given in this judgment, I find myself agreeing with the learned senior counsel for the Respondent that this appeal lacks any substantial merit and ought to thus; be dismiss. According, without any further hesitation, the appeal is hereby dismissed. The ruling of the Trial Court delivered on the 8th day of March 2001 hereby affirmed.

The Respondent is entitled to N10, 000.00 (Ten Thousand Naira) cost against the Appellants.

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Other Citations: (2006)LCN/2124(CA)