Dr. (Mrs) Asari E. Young V. Judicial Service Commission, Crs & Anor. (2007)

LawGlobal-Hub Lead Judgment Report

OMAGE, J.C.A.

In this appeal, the appellant seeks an order of court to reverse the order of the High Court, Cross River State, Coram Anjor, J. which overruled her claim for relief against the Judicial Service Commission of the Cross River State in her quest to quash by an order of certiorari the decision of the Judicial Service Commission to first demote her to the position of Director of Statistics, etc which the Chief Registrar rejected before the order of the commission to retire her from the service of the Judicial Service Commission of Cross River State.

“Apparently, the Judicial Service Commission considered the rejection and after deliberation decided to retire the Chief Registrar from the service of Cross River State. The Chief Registrar was dissatisfied with the decision and went to the High Court of Cross River State judiciary. It heard the case and ruled that the decision of the Judicial Service Commission is an administrative one and cannot be subjected to the prerogative order of certiorari. The court refused the reliefs sought by the plaintiff and dismissed the application. The plaintiff was aggrieved by the decision of Anjor J. She has filed an appeal in this court. The appellant filed one ground of appeal, which are subdivided in its particulars to 4. These are contained in the record of appeal pages 161-162. The appellant filed his brief on the appeal on 14/6/06 and formulated a lone issue as follows. “whether in the circumstances of the case cetiorari will not quash the retirement letter issued to the appellant on ground that the 1st respondent is a body empowered to act judicially in the determination of employment right of her employees and expected to act within the confines of set rules to achieve that purpose.”

In the brief, the appellant submitted that the functions of the Judicial Service Commission of Cross River State is at the same time administrative and quasi judicial because the commission hereinafter referred to as the 1st respondent has a duty under Schedule 3 Part 11 of the 1999 Constitution of the Federal Republic of Nigeria; See section 6 therefore, where the 1st respondent is given power to appoint, dismiss and exercise disciplinary control over the Chief Registrar and Deputy Chief Registrar of the court, and the other members of the staff of the judicial service of the Cross River State.

Appellant submits that the exercise of the rights and functions of the Judicial Service Commission stipulated above calls for the exercise of the rule of natural justice. Since the 1st respondent is a statutory body created by the Constitution. The appellant cited in the said brief the decision of the Supreme Court in CIC of Armed Forces v. Public Service Commission Midwest State & Anor (1974) NSCC Vol. 9 which facts appellant said is in pari material to the instant facts. In the case, the Public Service Commission and the Attorney-General Midwest State of Nigeria appellant appealed against the order of certiorari issued by the High Court upon the application of the staff of the state public service to quash the proceedings of the Public Service Commission, when the commission transferred the applicant from the Ministry of Justice to another under the threat that the applicant would be summarily dismissed from the service if he refused to accept the transfer. In affirming the order of the High Court, Benin, and in confirmation that the order of certiorari employed by the applicant was proper in the event to quash the decision of the Public Service Commission, the Supreme court per Coker, JSC, ruled thus, “where it is established before the High Court that a statutory body or may be an inferior court with limited statutory power has abused that power and that such abuse does and continues to affect prejudicially the right of a citizen certiorari will issue at the instance of that citizen. ” Such abuse may take the form of non compliance with the rules of natural justice.

In the said judgment, it is recorded thus, “where the transgression of the statutory body or individual is a denial of the right to be heard …… ” the court instantly granted certiorari. Appellant cited also Kanda v. Government of Republic of Malaya (1962) Act. 337. The appellant submitted also that the appointment she holds is one with statutory flavour and the 1st respondent failed to observe the statutory provisions for her retirement from service. Upon receipt of the respondent brief, the appellant filed also the appellant’s reply brief. I will relate anon the issues joined therein. In the respondents brief the issues formulated thus, “whether the trial court was right in striking out the appellant’s application for certiorari on the ground that retirement of the appellant by the Cross River State Judicial Service Commission was an administrative act which certiorari cannot lie.”

In its submission on the issue the 1st respondent admits that it is a statutory body. It must be remarked that the issue formulated by the respondent derives from the sense, rather than the words of the ground of appeal filed by the appellant. The issue certainly derives from one of the several particulars formulated by the appellant. I will therefore accept it as deeming it from the ground of appeal filed by the appellant. The 1st respondent submitted as did by the appellant that the commission has power to appoint, dismiss and exercise disciplinary control over the Chief Registrar and its deputy of the High Court, but argues that the exercise of such power is administrative and that the writ of certiorari does not avail the appellant. The respondent submitted that the writ of certiorari lies against bodies exercising judicial and quasi judicial authority and in respect of acts performed by them in that capacity. It does not lie against executive or legislative acts or administrative acts.

The respondent cited the case of State v. Nwaoboshi 8 MJSC 170 at 179 per 8 where the supreme court so held, and further ruled that the order of certiorari is a discretionary power exercised by the court where it is established that the court has acted in excess of its jurisdiction and where there is a breach of natural justice. The writ is also applicable where there is a distinct error of law on the face of the record.

The order of certiorari is not available where there exists an equally competent and effective method or remedy like the regular process of court as in the writ of summons. See Lawal & Quadri (2004) 6 NWLR (Pt. 868), 12 E – F. My lords, it is desirable to reconcile here the facts of the controversy between the appellant and the 1st respondent which caused the appellant to file in the court below, the writ of certiorari to quash the decision of the Cross River Judicial Service Commission; as and sought in the court below, the following reliefs:

“1) An order to quash the letter of retirement of the appellant dated 13/11/2002 reference Nos. JSC/PE/31/Vol. 1/38 as the same was actuate by real likelihood of bias against the applicant.

2) An order of injunction restraining the defendant/respondent from further harassment, suspension or howsoever threatening the security of service of the applicant.

3) A declaration that the applicant is entitled to her remuneration as Chief Registrar until she is legitimately removed as the Chief Registrar. Alternatively, the sum of N50 Million for premature retirement on bias.”

The incidence which led to this impasse is the allegation made by the 1st respondent that the appellant had been found to be implicated in a fraudulent interference with the funds in the possession of the Administrator General in the Estate of the late Chief Effiom Okon Effiom. There were allegations and counter allegation in the issue in dispute believed by appellant and the Chief Judge of the State after the judgment of E.A. Ike J. in Suit No. H/C/MSC/251/99.

The appellant averred in the reply to the respondent’s brief, that the respondent sent queries to her to which she responded. She deposed also that behind her back, the 1st respondent called evidence….. and heard same from diverse people; she said she was not invited to confirm and contradict or cross examine such witnesses. She referred to Exh. 7 in the proceedings saying, she had her right to be heard in the accusation made against her and her light has been infringed and urged the court below to quash the proceedings. In his ruling, the court below headed by Anjor J. ruled that the order of certiorari was not available to quash the letter of retirement of the appellant and indeed the proceeding as the Judicial Service Commission of the Cross River State in the exercise of its power was performing an administrative function.

The issues to be determined in the appeal, My lords are (i) whether as submitted by the appellant the matter for determination of her service with the State Government of Cross River State are prescribed by statute; (ii) whether the Cross River State Judicial Service Commission is a statutory body bound to observe the tenets of the rule of natural justice even if it professes to do an administrative function. (iii) Whether in the determination of the allegation made against the Chief Registrar, the 1st respondent was not performing a judicial function; (iv) whether the rule of fair hearing being a rule of natural justice is not a condition necessary to be fulfilled in a matter which terminates the appointment of the appellant.

In the event of the above, whether the appellant was not disabled from using a prerogative order instead of the regular writ of summons. In the brief of the appellant, she referred to rule 14108, which provides the method and occasions when an officer in the Civil Service may be dismissed by the Cross River State Civil Service Commission, among the procedure and method is a requirement directing the 1st respondent to call after the affected staff to respond in writing, and be called upon to exculpate himself. The requirements are 8 in number and all stated on page 19 of the appellant’s brief. In the light of the provision of the rules even if it is argued to no avail that the appointment of the appellant with the Cross River State Civil Service Commission, it cannot be said that 1st respondent compiled with the rules in the exercise of its function to retire, dismiss and discipline the appellant in the public service.

In the performance of their functions the 1st respondent exercised a function in excess of administration. This is so because the reason though not specifically stated, for the initial reposting or demotion of the appellant was it because the commission had adjudged the appellant to be implicated in the allegation of fraud in the Estate of late Effiom, the refusal of the chief Registrar to accept such demotion and subsequent retirement of the appellant from the service without due process is only a subterfuge for the real reason that the 1st respondent had found the appellant guilty in a charge not preferred against her but on which unstated charge she was found “guilty” and “sentenced” to compulsory retirement particularly when Exh. 7 on page 17 shows that witnesses were called to testify when the appellant was not present. In convening such hearing, the 1st respondent exercised a judicial function and it was bound to observe the rule of natural justice. In this appeal the facts show that the 1st respondent failed to observe the rules. As statutory body, the 1st respondent is by law compelled to observe the rule of fair hearing. Its failure to do so renders incompetent any decision emanating from its decision.

My lords, the next issue for consideration is whether the writ of certiorari is (a) morally appropriate in the event to quash the letter of retirement of the appellant when there exist a writ of summons. A writ of summons is of course available for recovery of damages and or reinstatement of a claimant who is aggrieved by the decision or action of his appointment.

On the other hand, a writ of certiorari is a common law remedy appropriate where the jurisdiction of an inferior court is impugned. It is particularly desirable when there has been a failure by a statutory body to comply with the provisions of the statute for example where there has been failure by the statutory body in a criminal charge to ask the person accused whether he is guilty of the charge or not before conviction. See R v. Stafford Justices ex parte Stafford Corporation (1940) KB 53; See (ii) Agwu Egbo v. Kogowa (2000) FWLR Pt.19. As in the instant case where an administrative body acts judicially by deciding on the rights and obligations of the person affected, it falls within the purview of certiorari. For when it is said that the 1st respondent was exercising an administrative function, and it proceeds to touch on the constitutional right of the affected party in such a manner that the 1st respondent usurps the function of a court of law to determine the innocence or guilt of the appellant being a statutory body the 1st respondent cannot do as it pleases regardless of court which clearly illustrates the law is C/C of Armed Forces v. Public Service Commission of Midwest State & Anor (1974) NJSC Vol. 9 at Pt. 509, where Coker, JSC, wrote “that the denial to the respondent of the right of audience on a decision to remove him from the Public Service of the State was a contravention of the principles of natural justice and the scope of certiorari was wide enough to cover the proceedings embodied in the offensive letter to where it is established before the High Court that a statutory body with limited power has abused that power, and that such abuse continues to affect prejudicially the rights of a citizen, certiorari will be issued at the instance of that citizen”. See also S.O Adedeji v. Police Service Commission (1967) ANLR Pt. 72 Steel Bell Nig. Ltd. v. Govt. of Cross River State (1996) 3 NWLR (Pt.438) 571 at 588; Onuzulike v. Council for Special Duties Anambra State (1992) 3 NWLR (Pt. 232) 791.

In the light of the above authorities, it is right in my judgment to seek to quash the offensive letter by a writ of certiorari, and the trial court was in error to refuse to do so. I do so now. The letter of retirement from the service of Cross River State by the Cross River State Judicial Service Commission is hereby quashed. It is void. The order of the court below is set aside and the respondent is restrained from harassing the appellant whose tenure of service remain continuous and undisturbed or interrupted by the time it took to determine the issue in a court of law.

There will be no order for costs.

Other Citations: (2007)LCN/2564(CA)