Federal Military Government v. Governor Mid – Western State & Ors (1973)
LawGlobal-Hub Lead Judgment Report
O. ELIAS, C.J.N.
In suit No.B/18m171 before Begho, C.J., in the High Court, Benin, the applicant brought an ex-parte application under section 24(4)(a) of the High Court Law of Mid-Western State, section 5(2) of the Administration of Justice (Crown Proceedings) Law, 1959, and Order 53 of the Rules of the Supreme Court of England, 1970, in which he sought leave to apply for an order of certiorari to remove into the Court for the purpose of being quashed the revocation of his appointment as a member of the Public Service Commission of the Mid-Western State published in Mid-Western State Legal Notice No. 2 of 1971. The applicant was appointed a member by a letter dated 17 July,1969 and he was removed from office with effect from 20th January, 1971.
According to the statement filed by him in support of his application, the relief sought was based upon the following grounds:
“1. The 1st Respondent acted ultra vires by revoking the appointment of the Applicant in the manner he did.
- The 1st Respondent acted contrary to the rules of natural justice in that
(a) he revoked the appointment of the Applicant without affording the Applicant sufficient opportunity to defend himself; and
(b) he constituted himself into an accuser and a judge in the same cause.
- The Respondent purported to act pursuant to Edict No.3 of 1971 which is null and void because it purports to amend the Constitution of the Mid-Western State as confirmed by the Constitution (Suspension and Modification) Decree, 1966.”
The grounds specified in section 61 (5) of the Constitution of Mid-Western Nigeria for the removal of such a member are as follows:
“A member of the Public Service Commission of the Region may be removed from office by the Governor, acting in accordance with the advice of the Premier, for inability to discharge the functions of his office (whether arising from infirmity of mind or body or any other cause) or for misbehaviour.”
As modified by sections 3 and 4 of the Constitution (Suspension and Modification) Decree No.1 of 1966, section 61 (5) of the Mid-Western Nigeria Constitution reads thus:
“A member of the Public Service Commission may be removed from office by the Military Governor for inability to discharge the functions of his office (whether arising from infirmity of mind or body or any other cause) or for misbehaviour.”
By the Constitution of Mid-Western Nigeria (Amendment) Edict, No.3 of 1971, the said section 61 (5) was amended to read:
“A member of the Public Service Commission may be removed or dismissed summarily from office if the Military Governor is satisfied that:
(a) The person holding the office is for any reason unable to perform the functions of his office; or
(b) The conduct of such member is such that his further or continued employment in the Commission would not be in the public interest.”
Mr. Giwa-Amu, counsel for the applicant, raised the following three preliminary questions as those likely to agitate the mind of the Court:
“1. Is the 1st Respondent or the Government of the Midwest a body against whom an order of certiorari can be made
- Is removal from office a judicial or quasi-judicial act for which certiorari will lie
3 . Was the 1st Respondent or Government of the Midwest under an obligation to observe the rules of natural justice”
Learned counsel submitted that the answers to these questions should be in the affirmative because, although there are Nigerian authorities to the contrary and although he referred to these, the case of Ridge v. Baldwin (1963) 2 All E.R. 56 could be relied upon in support of his submission. It is important to note that, after reviewing the Nigerian authorities, Mr. Giwa-Amu concluded his arguments before the High Court in these words:
“The point directly in issue here as to whether certiorari will lie against the respondents was not raised in Adedeji’s case and I personally think that the judgment of Palmer, J., in ex parte Amobidike Eze is directly in point, we have come by way of certiorari only to test the law. Although other actions are available to us, we are interested in building the law. If this court refuses our application, we hope that in the interest of building the law, leave will be given to us to appeal. Were interested in the growth of the law.”
The learned Chief Justice then reviewed the matter extensively, answered all the questions in the negative, and refused leave to apply for the order of certiorari sought in the application. As interesting points of law have been raised, he, however, granted the request of learned counsel for leave to appeal to this Court on the following grounds:
“1. The learned Chief Justice erred in law by holding that the Military Governor was not exercising a quasi-judicial function.
- The learned Chief Justice erred in law by failing to grant leave to the Appellant to bring an application for an order of certiorari.
- The learned Chief Justice misdirected himself in law by not holding that the grounds filed in support of the Appellant’s application were sufficient to justify the grant of leave to bring an application for an order of certiorari.
- The learned Chief Justice erred in law by holding that an order of certiorari could not lie against the respondents.”
At the hearing of the appeal on 13th June, 1973, Chief Williams, learned counsel for the appellant, submitted that the purported dismissal of the applicant by the Military Governor was unconstitutional because the Amendment Edict of the Mid-Western Nigeria Government No.3 of 1971 was ultra vires that Government in view of the fact that section 3 (2), (3) and (4) of the Constitution (Suspension and Modification) Decree No.1 of 1966 has been infringed. We think that, without prejudice to what we may say later on this point, the more relevant argument is that the Amending Edict is invalid since the power to amend a State Constitution by the State itself has been taken away by Decree No. 1 of 1966 which by reference to its Schedule 1 has repealed section 5 (2) of the 1963 Constitution of the Federation under which alone there was a grant of such power to the States.
Chief Williams then argued that, assuming that the Governor purported to have acted under section 61 (5) of the Constitution of Mid-Western Nigeria 1963 (as it should properly read), the dismissal of the appellant was wrong because the manner of removing a member of the Public Service Commission has been prescribed by statute, that is, by the Constitution. In support of his contention that, as such, the appellant should have been heard before being removed, he cited Ridge v. Baldwin (1964) A.C. 40, at pp. 64, 65 and 66, Malloch v. Aberdeen Corporation (1971) 2 All E.R. 1278, at p. 1294, and Cooper v. Wandsworth Board of Works (1863) 14 C.B.N.S. 180, at p. 194. We observed to learned counsel that in none of these cases was the suit brought by way of certiorari and also that the rule of natural justice has been invoked because all the cases deal with committees of inquiry or tribunals or some other subordinate authorities exercising judicial or quasijudicial power of removal of public officers. When we then invited learned counsel to address us fully as to whether certiorari can lie against the Governor in his official capacity, he asked for time to consider the point, and we adjourned further hearing of the appeal till 10th October, 1973.
When hearing was resumed on the specified date, Chief Williams submitted that, as the Governor of the Mid-Western State is not in the same position as the Queen in the United Kingdom, the supervisory jurisdiction of the Court therefore exists over the Governor in the exercise of his statutory powers. In his submission, the Governor was exercising judicial or quasijudicial power when he dismissed the appellant, the question of distinction between judicial or quasi-judicial power and administrative power being one dependent upon the character of the power in any given case. At any rate, in Mid-Western Nigeria, learned counsel argued that local legislation (e.g., section 161 (1) (c) of the Constitution of the Federation and the Administration of Justice (Crown Proceedings) Law 1959, section 3) assumes that the Governor is amendable to certiorari proceedings; and he also cited ex parte Ojo (1962) 1 All N.L.R. 147, at pp. 151, 155, Eshugbayi Eleko v. Officer Administering the Government of Nigeria (1931) A.C. 662, at p. 670, Ridge v. Baldwin (1964) A.C. 40, at pp. 66, 67, Pyx Granite Co. Ltd. v. Ministry of Housing and Local Government (1960) A.C. 260, at p. 290 as illustrating the issue of amenability of certain public functionaries to supervision by the court. We will only observe that in none of these cases was the procedure by way of certiorari adopted, and, what is more, in every case there was a precedent inquiry or report by a subordinate body. Learned counsel next contended, by referring to a passage in Anisminic v. Foreign Compensation Commission (1969) 2 A.C. 147, at p. 233, that certiorari and declaration are alternative remedies. We do not think that the case is authority for this proposition, and the passage cited contains a mere obiter on the point. Not one case was cited to us to show that it has become an established rule of law that certiorari and declaration have always been identical and interchangeable remedies. Learned counsel finally submitted that section 61 (5) of the Constitution of Mid-Western Nigeria presupposes that the Governor should have followed the fundamental principle of audi alteram partem. We do not assent to this proposition for reasons which we shall discuss later.
Mr. Iyare, the learned Solicitor-General for the Mid-Western State of Nigeria, on the other hand, began with a submission that certiorari does not lie to the Governor because the latter could not be attached if he disobeyed an order of certiorari, for which the only remedy at common law is attachment (see Halsbury’s Laws of England, Vol. 11, 3rd edition, para. 144, p. 78); and also because the Governor could not be imprisoned for any disobedience of the order (section 161 (1) (b) of the Constitution of the Federation). Mr. Iyare further contended that, in exercising his power to dismiss the appellant under section 61 (5) of the Mid-Western Nigeria Constitution, the Governor was only acting administratively, not judicially or quasi-judicially, and that the Governor dismissed the appellant in execution of the educational policy of the Government. The learned Solicitor-General submitted that certiorari should not lie because the Governor’s act in this case was purely administrative: The Queen ex parte F. Oputa & Ors. v.Director of Audit & Anor. (1961) All N.L.R. 659, at p. 662. He finally submitted that the alleged order or direction which the appellant sought to be quashed by certiorari was never exhibited before either the lower court or this Court. He then argued that the Amending Edict No.3 of 1971 is valid because it was enacted under the residuary legislative power of the State, the repeal of section 5 (2) of the Constitution of the Federation notwithstanding. For reasons which we have given above, we cannot go along with him in this argument. Another reason for our disagreement with him on this score is that it amounts to an implied admission that the Governor in fact acted under the Edict, not under section 61 (5) of the Mid-Western Nigeria constitution, a proposition for which there is no evidence since the learned Chief Justice did not refer to the Edict as the basis of his judgment; on the contrary, he referred throughout to section 61 (5) of the Constitution, although incidentally towards the end of his judgment he, like the learned Solicitor-General, tried to assert the validity of the Edict. As this question of the validity of the Edict has not been made one of the grounds of appeal before us, we do not wish to say more about it in this judgment. Even assuming that the point arises for determination on this appeal, we would like to point out that we must still resist the temptation to decide the issue, for at least two reasons. In the first place, neither the Governor’s letter of dismissal of the appellant nor the Mid-West State legal Notice No.2 of 1971 mentions the Edict as the authority under which the Governor acted. Secondly, if we assume that it could be shown that the Governor acted under the Edict, the Edict would be void only to the extent to which it is inconsistent with section 61 (5) of the Constitution of the Federation, which means that the Governor would be deemed to have acted under section 61 (5) of the Constitution, a situation which the arguments of learned counsel for the appellant clearly assumed.
As regards the general issue of the procedure adopted in this case by the applicant in the court below, we think it at least doubtful whether certiorari is an appropriate remedy for challenging the validity of a statute or other document requiring an interpretation: R. v. Legislative Committee of the Church Assembly, ex. P. Haynes-Smith (1928) 1 K.B. 411. An action for a declaration is the appropriate means of challenging the validity of legislation or a document in need of construction. In any case, our Supreme Court Rules provide for seeking from the court the construction of statutes in one of two ways: either on an application by an originating summons or by filing a statement of claim. The relevant provisions of Order 5, rules 1, 2, 5 and 6 of the Supreme Court Rules are as follows:
“1. No action or proceeding shall be open to objection, on the ground that a merely declaratory judgment or order is sought thereby, and the Court may make binding declarations of right whether any consequential relief is or could be claimed or not.
- Any person claiming any legal or equitable right in a case where the determination of the question whether he is entitled to the right depends on the construction of the Constitution of the Federation or of a State or of any Act of the British Parliament extending expressly or by implication to Nigeria, or of an enactment of Law as defined in section 18 and 27 of the Interpretation Act, 1964, may apply for the issue of an originating summons for the determination of such question of construction and for a declaration as to the right claimed.
- The application shall be made in Civil Form 9 in the First Schedule to these Rules and shall be supported by such evidence as the Court may require.
- Rules 2 and 3 of this Order shall not affect the right of any person seeking a declaratory judgment to institute proceedings by filing a statement of claim under Order III and on an application by originating summons the Court shall not be bound to determine any such question of construction if in the opinion of the Court it ought not to be determined on originating summons.”
Were it not for the wider legal interests raised by this appeal, these clear rules of procedure regarding the mode of obtaining declaratory judgments from the Court would be sufficient to dispose of the case, because certiorari is obviously out of the contemplation of those Rules.
In this connection we wish to say that we are unable to accept the contention of the learned counsel for the appellant that an action for a declaration and an application for certiorari are always alternative remedies. As pointed out above, he cited Anisminic v. Foreign Compensation Commission (1969) 2 A.C. 147, at pp. 233, especially this passage:
“It is beyond question that the High Court has inherent jurisdiction to supervise and control all inferior tribunals. The phrase ‘inferior tribunals’ is not used in any offensive sense, but merely means that the tribunal has a limited jurisdiction usually in modern times defined by the statute which sets up the tribunal.
This jurisdiction of the High Court is normally exercised by means of the prerogative writs of certiorari, mandamus or prohibition, but it has been established in late years that it can also be exercised by means of declarations in suitable cases.”
That these dicta do not support learned counsel’s hypothesis is obvious and we need not dilate upon it any further.
We now turn to a consideration of the proper scope of the order of certiorari in relation to the circumstances of the present appeal. In the first place, we think that it is settled law that certiorari lies to the High Court to quash the orders or the proceedings of an inferior tribunal which has acted in excess of its jurisdiction, and that although the remedy was in early times limited to courts in the normal sense, it has since been extended to other authorities or bodies exercising judicial or quasi-judicial powers: R. v. Electricity Commissioners (1924) 1 K.B. 171, at pp. 204-5.
We are equally of the opinion that certiorari does not lie in respect of executive or administrative acts, but only of judicial or quasi-judicial acts. In holding that certiorari did not lie against the Controller of iles in Ceylon who had by an order withdrawn a trader’s licence on what seemed to the former to be reasonable ground, Lord Radcliffe in delivering the Opinion of their Lordships of the Privy Council in the case of Nakkuda Ali v. Jayaratne (1951) A.C. 66, said:
“Their Lordships have come to the conclusion that certiorari does not lie in this case. It would not be helpful to reconsider the immense range of reported cases in which certiorari has been granted by the English courts: or the reported cases, themselves numerous, in which it has been held to be unavailable as a remedy. It is, of course, a commonplace that its subjects are not confined to established courts of justice, and instances may be found of the quashing of orders or decisions in which the occasion of their making seems only distantly related to a judicial act. It is probably true to say that the courts have been readier to issue the writ of certiorari to established bodies whose function is primarily judicial, even in respect of acts that approximate to what is purely administrative, than to ministers or officials whose function is primarily administrative even in respect of acts that have some analogy to the judicial. But the basis of the jurisdiction of the courts by way of certiorari has been so exhaustively analysed in recent years that individual instances are now only of importance as illustrating a general principle that is beyond dispute. That principle is most precisely stated in the words of Atkin L.J. (as he then was) in Rex. v. Electricity Commissioners: ‘. . . . . . . the operation of the writs has extended to control the proceedings of bodies who do not claim to be, and would not be recognized as courts of justice.
Wherever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority they are subject to the controlling jurisdiction of the King’s Bench Division exercised in these writs.’ As was said by Lord Hewart C.J. in Rex v. Legislative Committee of the Church Assembly when quoting this passage, ‘In order that a body may satisfy the required test it is not enough that it should have legal authority to determine questions affecting the rights of subjects; there must be superadded to that characteristic the further characteristic that the body had the duty to act judicially’. ”
This general proposition that certiorari lies only to quash judicial or quasi-judicial acts and not purely administrative acts remains true today, despite Lord Reid’s criticism of it, (on the quite separate point that, in acting judicially or quasi-judicially, the inferior body or tribunal must observe the principles of natural justice), in the oft-cited case of Ridge v. B. Baldwin (1964) A.C. 40, at pp. 74-79.
There are a number of Nigerian cases on the subject, the first and most pertinent of which being Re Minister of Customary Courts and Chieftaincy Affairs, ex parte Amobidike Eze (1963) 7 E.N.L.R. 166. There, Eze applied for an order of certiorari for the purpose of quashing the order of the Minister dismissing him from office as president of a customary court under powers conferred upon the Minister under section 4 (4) of the Customary Courts Law 1956 of the then Eastern Region by virtue of which the Minister was entitled to dismiss a member of the court who “shall appear to have abused his power or to be unworthy or incapable of exercising the same justly or for other sufficient reason”. Palmer, J., held that, as the order of the Minister was not a judicial or quasi-judicial act, it could not be quashed by an order of certiorari. He said:
“The first question is whether certiorari lies. The office is not held at pleasure, there can be dismissal only if there is something against the member. But that does not necessarily make the decision of the Minister a judicial or quasi-judicial order.”
Palmer, J., distinguished, at p. 167, Ridge v. Baldwin & Ors. (1963) 2 All E.R. 66-in which a chief constable was dismissed without compliance with the regulations laid down for such dismissal pointing out that certiorari was held to lie in that case because there had to be a tribunal of inquiry where the chief constable did not admit the allegations against him and the principles of natural justice must then apply, and also because the procedure adopted in that case was not by application for an order of certiorari but one by ordinary action. A case analogous to Ridge v. Baldwin is Adedeji v. Police Service Commission, S.C. 518/1966 (unreported) in which the Supreme Court held that an order of certiorari lay to quash the decision of the defendant Commission on the ground of non-compliance with the provisions of General Order 04107 dealing with the removal or dismissal of officers from the public service. The Police Service Commission was clearly a quasi-judicial body which is, as such, amenable to the order of certiorari. On the other hand, in The Attorney-General, Eastern Nigeria v. Briggs (1965) N. M. L. R. 45, the appellant appealed against the judgment of the Eastern Nigeria High Court granting an order of certiorari directed to the Governor of the Eastern Region of Nigeria to bring into the High Court for the purpose of being quashed the order reverting the respondent to the post of teacher grade II and the relevant proceedings thereto. The Governor said that he acted’ ‘on the recommendation of the Public Service Commission” and that he was satisfied that the respondent had failed to exculpate himself from the charges laid against him. The Supreme Court, allowing the appeal, said at p. 48 of the Report:
“Counsel for the respondent conceded so much in this court, and sought to distinguish, on the one hand between a power to dismiss and a power to reduce in rank and on the other hand between the case where an officer is reduced in rank on stated grounds as a disciplinary measure and the case where he is reduced in rank otherwise, either without the statement of any reason or for some reason other than misconduct. This argument overlooks the fact that it is not the recommendation made by the Public Service Commission that the respondent seeks to have quashed but the direction given by the Governor, acting on that recommendation. The Governor, as we have already held, had no duty to act judicially . . . It is not easy to see how any error in law, breach of natural justice, or want of jurisdiction can be imputed to the Governor, who merely did what the Constitution Order required him to do.”
We think, therefore, that, as the Governor in the present case had to consider the matter of the appellant’s dismissal from the point of view of Government policy or expediency, he was not under any duty to act judicially; nor is he required under section 61 (5) of the Constitution of Mid-Western Nigeria to act only after considering the report of a commission of inquiry or a body of advisers, or even after obtaining the appellant’s explanation of a complaint against him. In R. v. Manchester Legal Aid Committee (1952) 2 Q.B. 413, Lord Goddard, C.J., said at p. 431:
“If, on the other hand, an administrative body in arriving at its decision at no stage has before it any form of lis and throughout has to consider the question from the point of view of policy and expediency, it cannot be said that it is under a duty at any stage to act judicially.”
It would be otherwise if there was a statutory direction to the Governor to hold an inquiry or to act on another’s report or advice and if he had failed to comply: See Franklin v. Minister of Town and Country Planning (1948) A. C. 87, at pp. 102-3.
There is authority for the proposition that, if there is no statutory requirement to that effect, it is not permitted to a complainant to import the principle of natural justice of audi alteram partem into the relevant provision under which the dismissal was effected. In Wiseman v. Borneman (1969) 3 All E.R. 275, Lord Reid rightly observed at p. 277 as follows:
“For a long time the court have, without objection from Parliament, supplemented procedure laid down in legislation where they have found that to be necessary for this purpose. But before this unusual kind of power is exercised it must be clear that the statutory procedure is insufficient to achieve justice and that to require additional steps would not frustrate the apparent purpose of the legislation.”
Lord Guest in the same case said at p. 311:
“The true view, in my opinion, is that expressed by Tucker, L.J., in Russell v. Duke of Norfolk (1949) 1 All E.R. 109, 118:
‘There are, in my view, no words which are of universal application to every kind of inquiry and every kind of domestic tribunal. The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth. Accordingly, I do not derive much assistance from the definitions of natural justice which have been from time to time used, but, whatever standard is adopted, one essential is that the person concerned should have a reasonable opportunity of presenting his case.’
In the present case I can see nothing manifestly unfair about the procedure which the statute enjoins to be followed by the tribunal set up under section 28 of the Finance Act, 1960.” .
In Pearlberg v. Varty (1972) 2 All E.R. 6, however, Lord Hailsham of St. Marylebone, L.C. found it necessary to sound this note of warning, at p. 11:
“Despite the majestic conception of natural justice on which it was argued, I do not believe that this case involves any important legal principle at all. On the contrary, it is only another example of the general proposition that decisions of the courts on particular statutes should be based in the first instance on a careful, even meticulous, construction of what that statute actually means in the con in which it was passed. It is true, of course, that the courts will lean heavily against any construction of a statute which would be manifestly unfair. But they have no power to amend or supplement the language of a statute merely because on one view of the matter a subject feels himself entitled to a larger degree of say in the making of a decision than the statute accords him. Still less is it the functioning of the courts to form first a judgment on the fairness of an Act of Parliament and then to amend or supplement it with new provisions so as to make it conform to that judgment. The doctrine of natural justice has come in for increasing consideration in recent years, and the courts generally, and your Lordships’ House in particular, have, I think rightly, advanced its frontiers considerably. But at the same time they have taken an increasingly sophisticated view of what it requires in individual cases.”
With respect to the importation of the principle of natural justice into the interpretation of section 61 (5) of the Mid-Western Nigeria Constitution as suggested by learned counsel for the appellant in the present case, we would like to draw a parallel from these words of Viscount Dilhorne in the Pearlberg Case supra, at p. 14:
“With these two recent procedents it is, to my mind inconceivable that section 6 of the Income Tax Management Act 1964 should not have expressly provided for a hearing or at least the making of written representations if it was Parliament’s intention that on an application for leave under that section the person to be assessed should have any such rights. I cannot regard the omission to do so as inadvertent. It was, in my opinion, deliberate . . .
I do not think that by the 1964 Act it was intended to interpose a judicial function before the performance of an administrative act, one before 1964 wholly performed by the commissioners.”
Perhaps even more pertinent to the point is the following observation of Lord Hailsham at pp. 15-16: .
“I would only emphasize that one should not start by assuming that what Parliament has done in the lengthy process of legislation is unfair. One should rather assume that what has been done is fair until the contrary is shown. And Parliament thought it fair that the person affected should have the right to be heard where leave was sought under section 51 of the Finance Act 1960, and have the right to make representations to the tribunal under section 28 of that Act. The omission so to provide in section 6 of the Income Tax Management Act, 1964, cannot, as I have said, in my opinion be regarded as anything other than deliberate and, if deliberate, it should be assumed that Parliament did not think that the requirements of fairness made it advisable to provide any such rights for the person affected. If this was the view of Parliament, it would require a very strong case to justify the addition to the statute of requirements to meet one’s own opinion of fairness.”
Lord Pearson also observed at p. 17, ibid:
“But where some person or body is entrusted by Parliament with administrative or executive functions, there is no presumption that compliance with the principles of natural justice is required, although, as ‘Parliament is not to be presumed to act unfairly’, the courts may be able in suitable cases (perhaps always) to imply an obligation to act with fairness. Fairness, however, does not necessarily require a plurality of hearings or representations and counter-representations. If there were too much elaboration of procedural safeguards, nothing could be done simply and quickly and cheaply.”
The latest reported case on dismissal of an officer from a public office in which earlier cases were fully reviewed is Furnell v. Wangari High Schools Board (1973) 1 All E.R. 400. There, a school teacher in New Zealand was suspended from office by the appropriate Education Board after the latter had recieved a complaint about the teacher’s work and consequent upon an inquiry under the applicable regulations. The main contention on behalf of the appellant was that the natural justice rules had at some stage not been observed. The trial judge held that the Board should not have suspended the appellant before his own side of the case had been ascertained. The New Zealand Supreme Court reversed this decision and the Privy Council affirmed the Supreme Court. Lord Morris, in delivering the majority Opinion, observed at p. 411:
“In support of these claims the rules of natural justice were invoked. It becomes necessary therefore to consider whether the detailed. and elaborate code which prescribes the procedure to be followed when there is a suggestion of an offence under section 158 is a code which gives scope for unfairness and whether in its operation the court in the interests of fairness must supplement the written provisions. In the present case do the well-known words of Byles, J., in Cooper v. Wandsworth Board of Works apply, viz., , . . . although there are no positive words in a statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature’ Or is the code one that has been carefully and deliberately drafted so as to prescribe procedure which is fair and appropriate In whatever way the status of the appellant as a teacher is in law to be defined he agreed to serve under the conditions laid down in the regulations and unless some provisions are to be read into them or are incorporated in them it is clear that they were faithfully followed.”
This case illustrates the point that, in cases where statute does not provide for a particular mode of removing a public officer as well as in those where a set of regulations prescribe a clear procedure, the court should be slow to attempt to implement the statutory provision by importing the principles of natural justice. Lord Morris quoted with approval at p. 412 of (1973) 1 All E.R. these words from Brettingham-Moore v. Municipality of St. Leonards (1969) 121 C.L.R. 509, at 524:
“The legislature has addressed itself to the very question and it is not for the Court to amend the statute by engrafting upon it some provision which the Court might think more consonant with a complete opportunity for an aggrieved person to present his views and to support them by evidentiary material.”
And he added:
“It has often been pointed out that the conceptions which are indicated when natural justice is invoked or referred to are not comprised within and are not to be confined within certain hard and fast and rigid rules (see the speeches in Wiseman v. Borneman). Natural justice is but fairness writ large and juridical. It has been described as ‘fair play in action’. Nor is it a leaven to be associated only with judicial or quasi-judicial occasions. But as was pointed out by Tucker, L.J., in Russell v. Duke of Norfolk the requirements of natural justice must depend on the circumstances of each particular case and the subject-matter under consideration. ”
We, therefore, think that there was no unfairness about either the dismissal or the mode of dismissal of the appellant by the Governor who was not required by statute to conduct an inquiry or to obtain his explanation before acting as he did in the exercise of his administrative function. And the law does not permit the court to re-draft the relevant provision of the Constitution, namely, section 61 (5), in order to oblige the Governor to observe the principle of natural justice. We are not unaware of the well-known words of Byles, J., in Cooper v. Wandsworth Board of Works (1863) 14 C.N.B.S. 180, at p. 194 that “although there are no positive words in a statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature”. We think, as did Lord Morris in the Furnell Case (cited supra), that this dictum must never be regarded as a licence for a court to re-write Acts of Parliament in the name of supposed principles of natural justice in situations for which Parliament in its wisdom has deliberatly legislated without reference to or giving room for a supplementary provision.
Before we conclude, we would like to observe that this seems to us to be a case to which the maxim quod fieri non debuit factum valet applies or ought to apply. The Governor’s act sought to be impugned by the appellant’s application for a certiorari had been completed some three years ago and new arrangement had since been made to constitute another Public Service Commission which has made a large number of appointments to public offices, including various categories of magistrates. The question is: Could there be a return to the status quo without causing administrative chaos such as must necessarily attend any ruling which upholds the appellant’s application for leave to bring certiorari in this case We do not think so. In Regina v. Lord Newborough & Ors. (1869) L.R. 4 Q.B. 585, Justices were given the power to appoint special constables in a particular manner, but on one occasion they did make some irregular appointments, and payments were in due course made to the appointees. It was held that, even though the appointments of the special constables were irregular and the order for their payment was originally invalid, yet the Court, in the exercise of its discretion, would not grant certiorari to bring up the order, because the acts complained of had been completed and no benefit could accrue to the complainant from re-opening the matter. Therefore, to grant the appellant’s request in this case would be highly improper and disruptive of the machinery of government in the Mid-Western State.
The relief sought by the appellant is that leave be granted to him to bring an application for an order of certiorari and that this Court do entertain and determine the application. In view of all that we have said above, we have come to the conclusion that the application for leave to apply for an order of certiorari cannot be supported.
It is, therefore, refused both because we do not think that the proper procedure for challenging the Governor’s exercise of his purely administrative power of dismissal of the appellant has been followed, and because, even if the procedure were to be deemed proper, we are not satisfied that principles of natural justice extensively canvassed by the learned counsel for the appellant apply to the exercise of the Govenor’s power under section 61 (5) of the Constitution of MidWestern Nigeria.
This appeal, therefore, fails. It is dismissed with costs assessed at N92 awarded to each of the respondents.
Other Citation: (1973) LCN/1655(SC)
