Head of Federal Military Government V. The Public Service Commission of Mid-West State & Anor (1974)

LawGlobal-Hub Lead Judgment Report

G. B. A. COKER, J.S.C. 

This appeal is sequel to proceedings instituted in the High Court, Benin City, Mid-Western State of Nigeria, whereby the present respondent, Maclean Okoro Kubeinje, who was at all material times a Chief Magistrate in the employment of the Public Service of the Mid-Western State of Nigeria (as applicant) sought and obtained an Order of Certiorari against the Public Service Commission of the Mid-Western State. By motion paper dated the 12th October, 1971, the applicant, Maclean Kubeinje, moved the coon ex parte for:

“an Order of Certiorari to remove into this Honourable Court for the purpose of being quashed the proceedings before the Public Service Commission of the Mid- Western State as contained and described in letter No. PC.80 11203 of 14th April, 1971, referred to and marked as Exhibit MOK.20 in the affidavit filed by the applicant in support of this application whereby the said Public Service Commission adjudged that the applicant was not a fit and proper person to continue in his office as Chief Magistrate in the Public Service of the Mid-Western State and perform and/or discharge the duties and functions pertaining to the said office AND directing that the applicant should consider himself summarily removed from his post as Chief Magistrate in the Public Service of the Mid-Western State as from 16th April, 1971, unless the applicant agreed to accept within 2 days from 14th April, 1971, an offer of transfer from the Judicial Department to the Ministry of Justice in the Public Service of the Mid-Western State as Principal State Counsel, Group 6, contained in the letter No. PC.8011203 of 14th April, 1971, aforesaid.”

The applicant filed a statement in support of his application and in that statement the grounds upon which the Order of Certiorari was sought by him were set out as follows:

“(i) The Public Service Commission of the Mid-Western State acted ultra vires and without jurisdiction in the manner and/or procedure they adopted in having at the conclusion that the applicant was not a fit and proper person to continue in his office as Chief Magistrate in the Public Service of the Midwestern State and removing the applicant from the said office.

(ii) The Public Service Commission of the Mid-Western State acted ultra vires and without jurisdiction in ordering that the applicant should consider himself removed from the Public Service of the Mid-Western State in the circumstances stated in their letter No. PC. 8011203 of 14th April, 1971, in that they failed to comply with the provisions of Regulation 60 and/or Regulation 56 of the Public Service Commission Regulations, 1963, of Western Nigeria applicable in the Mid-Western State and the said order of removal was therefore null and void.

(iii) The Public Service Commission of the Mid-Western State acted ultra vires and without jurisdiction in directing the applicant to accept a transfer from the post of Chief Magistrate in the Judicial Department to the post of Principal State Counsel, Group 6 in the Ministry of Justice in the Public Service of the Mid-Western State and the said orders were therefore null and void.

(iv) The Public Service Commission of the Mid-Western State made the orders contained in their letter No. PC. 8011203 of 14th April, 1971, aforesaid in proceedings which were improperly brought and/or commenced before them by virtue of letters reference No. C. 334/196 of 16th February, 1971, from the Chief Registrar, Mid-Western State to the applicant and the applicant’s reply thereto dated 18th February, 1971.

In the alternative to grounds (i), (ii), (iii) and (iv) above, the applicant will seek the said relief upon the following other grounds viz:

(v) The Public Service Commission of the Mid-Western State came to the conclusions and/or made the orders contained in their letter No. PC.801/203 of 14th April, 1971, aforesaid against the applicant (which adversely affected his rights and privileges in the Public Service of the Mid-Western State) in breach of natural justice in that the applicant was not given an opportunity of being heard in his defence by the said Public Service Commission before the said Commission came to the said conclusions and/or made the said orders against the applicant.

(vi) The Public Service Commission of the Mid-Western State did not give the applicant a full and/or adequate opportunity of exculpating himself before the said Commission came to the said conclusion and/or made the said orders against the applicant.”

The applicant also filed an affidavit in support of his application and that affidavit contains the full facts of the events which led to the action of the Public Service Commission which he had challenged. According to the affidavit, the applicant was employed as a Senior Magistrate in the Public Service of the State on the 20th June, 1966; he was promoted to the post of Chief Magistrate on the 1st February, 1968, and on the 20th June, 1969, his appointment in the Public Service was confirmed. On the 21st March, 1969, in the course of his duties, he tried a criminal case-Charge No.MB/1391C/68: Police v. Enina Obaseki-that thereafter he was transferred from Benin City to Warri.assigned to some extra-judicial duties then posted to various posts in the Ministry of Justice supposedly on special duties until, by letter dated the 30th April, 1970, addressed to him by the Chief Registrar of the High Court, Mid-Western State, he was informed that his special assignment to the Ministry of Justice had finished and that he should report for duty in the Judicial Department “on Monday; 4th May, 1970, for instructions”. (See Exhibit MOK.4 attached to the affidavit of the applicant). According to the affidavit of the applicant, on reporting for duty in the Judicial Department, he unsuccessfully sought for an interview with the Acting Chief Justice of the State and after hanging around in the library of the court for a number of days, without seeing the Chief Justice, he received another letter from the Chief Registrar of the High Court, dated the 8th May,1970, Exhibit MOK.6, which reads and states as follows:

“SECRET Judicial Department,

Chief Registrar’s Office,

(Administration Division),

High Court of Justice,

Benin City.

Mid- Western State of Nigeria

Our Ref. C. 334/140

M.O. Kubeinje, Esq.,

Chief Magistrate,

Judicial Department,

Benin City.

Posting to Ministry of Justice

It is regretted that my letter No. P/287/93 of 30th April recalling you was sent in error, the exercise the Chief Justice (the Honourable Mr. Justice M.A. Begho) ordered having not been completed.

2. I am directed by the Honourable the Acting Chief Justice to say that he is not disposed to act in the matter until the exercise previously ordered is completed.
3. I am directed to say further that in view of the above, the instructions contained in my earlier letter referred to above are withdrawn and that you should return to the Ministry of Justice.”

The applicant, according to his affidavit, then protested against his transfer to the Ministry of Justice and addressed a letter to the Chief Registrar dated the 19th June, 1970 (Exhibit MOK.8), part of which reads as follows:

“It is my view therefore that your letter No. C334/140 of 8th May, 1970, purporting to cancel your letter No. P/287/93 of 30th April, 1970, recalling me back to the Department is unnecessary since it has been overtaken by events.

You will agree that would not be proper for me to malinger in the Ministry of Justice on the pre that I was still doing a special assignment which had in fact been completed. That behaviour will amount to misconduct. An act which would not doubt tarnish the reputation and integrity of an officer of my rank and responsibility.

I regret therefore that I am unable to comply with the directives contained in your letter No. C/334/140 referred to above, as these directives appear to me to be improper and unreasonable and therefore illegal.

In the circumstance, I am constrained to say that I will continue to report to you for proper instructions as soon as my doctor certifies me fit to resume work. ”

On the 30th June, a letter was addressed by the applicant to the Chief Registrar (Exhibit MOK.9) informing the latter that he was then well and ready to resume duties in the Judicial Department and, apparently, a reply was sent to him by the Chief Registrar on the same dated for, by letter dated the 2nd July, 1970, (Exhibit MOK.10), the Chief Registrar wrote as follows:

“Temporary Posting to the Ministry of Justice on Special Duty.”

With reference to your letter dated 30th June, 1970, I am directed by the Honourable the Acting Chief Justice to inform you that there is nothing more to add to our letter No. C.334/160 of 30th June, 1970, which was addressed to you asking you to comply with the directives already given to you.

Copies of this letter are being endorsed to the Secretary of the Military Government, the Chairman, Public Service Commission and the Permanent Secretary, Ministry of Establishments to whom you sent copies of your letter.”

The applicant’s affidavit further referred to letter Exhibit MOK.13 dated the 28th August, 1970, addressed to the applicant by the Chief Registrar of the High Court and his reply to that letter dated the 31st August, 1970 (Exhibit MOK.14). Both letters are very important and we set them out in full hereunder. Exhibit MOK.13 was addressed to the applicant by the Chief Registrar and it reads thus:

“With reference to your visit to this office yesterday reporting that your 45 days’ leave period expired on the 26th of August, 1970, I am directed by the Honourable the Acting Chief Justice to inform you that the Chief Justice has reported on you as follows:

‘It appear that Mr. Kubeinje has an obsession for threat to comttnt people for contempt and he talks more than is good for a judicial officer. I have had occasions to warn him against acts of indiscretion and flippancy in court but unfortunately the warnings failed to bring the desired effect……….

If the Magistrate were an officer earning annual increment I would have recommended that his increment be withheld. He has applied for transfer to the Ministry of Justice to fill the post of Commissioner for Law Revision. A post of that type to take him away from contact with the public and prevent him from exercising judicial functions may help to cure his obsessions and render him harmless.’

2. I am to inform you further that the consistence of the Chief Justice has been obtained to place the above report before the Advisory Judicial Committee which may then offer its advice to the Public Service Commission.”

The applicant’s reply thereto was Exhibit MOK14 and dated the 31st August, 1970, it reads thus:

“Sir,

M.D. Kubeinje: Chief Justice’s Report

I have the honour most respectfully to acknowledge receipt of your letter No. C.334/172 dated the 28th August, 1970, which brought to my notice for the first time certain adverse comments contained in a report allegedly written on me by the Honourable the Chief Justice.

2. I must confess that I am indeed surprised to learn that His Lordship, the Chief Justice, has written such a report on me. In fact I have not been able to imagine why the Chief Justice has written such a report because there has never been an occasion he has warned me orally or in writing in respect of any matter since I have been a Magistrate. If the said warnings are in writing I shall be grateful if copies of them are sent to me because no copy of any such warning has ever been shown to me.
3. I must confess also that I do not understand what his Lordship the Chief Justice meant when he said ‘it appears that Mr. Kubeinje has an obsession for threat to commit people for contempt………. I cannot imagine how a person can have such an obsession. I shall therefore be grateful if the expression be explained to me in a more simple language.
4. It is true that sometime in 1969, I applied through the Chief Registrar of the High Court of Justice, Benin, to the Public Service Commission to fill the post of Commissioner for Law Revision in the Ministry of Justice. However the Secretary to the Commission by a letter No. P.C.801139 of 15th July, 1969, informed me that my application could not be considered by reason of the fact that it offended against Regulation 23 of the Public Service Commission. Regulations which says that a Public Officer shall not apply for promotion. As the post carries a higher salary than that attached to the post of Chief Magistrate, I agreed with the Secretary and so abandoned the matter. Ever since, I have made no effort to re-open the matter. In fact, I am no longer interested in the post.
5. You said in paragraph 2 of your letter under reference that the alleged report is being placed with the concunence of the Chief Justice before the Advisory Judicial Committee which may then offer its advice to the Public Service Commission. From this, it appears to me that it is not intended that I should be invited before the Committee or in any other way be given an opportunity to defend myself before the Committee. I would say with due respect that this would be contrary to the principles of natural justice.
6. I should be told what offence I have committed to enable me prepare my defence and if need be call witnesses on my trial before I am condemned. I do hope that the Advisory Committee would not be prepared to infringe the rules of natural justice.
7. As the Secretary of the Advisory Judicial Committee let me implore you to place this my humble letter before the Commission. The letter is however not to be taken as my representations in this matter because I have not been told what offence or offences I have committed nor have I been called upon to make representations in respect of any matter. The sole purpose of this letter is to convey to the Committee my feeling of embarrassment and surprise at the whole exercise.”

On the 1st September, 1970, the Chief Registrar wrote a letter, Exhibit MOK.15, stating that he had been directed by the Acting Chief Justice to inform the applicant “that you have been placed on indefinite leave pending the determination of your matter by the Advisory Judicial Committee and the Public Service Commission”. And, on the 4th February, 1971, the letter Exhibit MOK.16, being a letter addressed to the Chief Registrar by the Secretary, Public Service Commission of the State, was endorsed to the applicant as follows:

“Our Ref No. PC.8011179 4th February, 1971

The Chief Registrar,

Judicial Department,

Benin City.

Mr. M.O. Kubeinje, Chief Magistrate:

Transfer to the Ministry of Justice

I am directed to refer to your letter No. C.334/186 of 4th November, 1970, and to say that after very careful examination of the advice of the Advisory Judicial Committee, Commissioners feel unable to accept the advice and consider that having regard to the totality of the circumstances surrounding the case of Mr. M.O. Kubeinje, Chief Magistrate, the Commissioners have come to the conclusion that it is a case deserving disciplinary action, and have agreed, therefore, that Mr. Kubeinje be transferred, without the option of secondment, to the post of equivalent status in the Ministry of Justice.

2. Commissioners further note that Mr. Kubeinje has been on indefinite leave and they direct that he should be recalled immediately to duty.
3. Copies of this letter go to the Secretary to the Military Government and Head of the Service, and the Solicitor-General and Permanent Secretary, Ministry of Justice, for their information.

(Sgd.) K.A. Gbegbaje

Secretary, Public Service Commission

OUR REF. No. C334/194

Chief Registrar’s Office

(Administration Division),

High Court of Justice,

Benin City.

10th February, 1971

Copy to: M.O. Kubeinje, Esq.,

c/o Chief Magistrate’s Court,

Benin City.

Above for information.

2. I am directed by the Honourable the Chief Justice to request you to report forthwith in the Ministry of Justice.”

According to the applicant’s affidavit he protested against the course taken by the Public Service Commission and, by letter addressed to the Secretary of that Commission, through the Chief Registrar (Exhibit MOK.17 dated the 13th February, 197 ) stated, inter alia,

“XXX XXX

3. May I implore you to bring this fact to the Chairman and members of the Commission that I have not applied for this transfer nor do I wish to accept it I cannot think of any post in the Ministry of Justice which is of equivalent status to the post of Chief Magistrate which is Judicial is status. I therefore vehemently protest against the said intended transfer.
4. I would point out at this stage that the decision of the Commission to transfer me, a Chief Magistrate in the Judicial Department, to the Ministry of Justice amounts to a decision by the Commission to determine my contract of employment with the Government of the State.
5. It should be appreciated that it is contrary to the Principles of Fundamental Human Rights and the Constitution of this country to compel a person to accept an office against his will.

Will you please allow me finally to say this that I want it to be on record that I have protested against the decision of the Commission to transfer me by force and against my will to the Ministry of Justice to perform duties which had never been in contemplation in my contract of employment with the State, as a Magistrate.”

The applicant thereafter received from the Chief Registrar a letter dated the 16th February, 1971 (Exhibit MOK I8) the contents of which are very important and are set out hereunder:

“I am directed by the Honourable the Chief Justice to put the subjoined to you and that your reply may be placed before the Advisory Judicial Committee to which you may be later summoned:

1.(a) Did the Chief Justice on one occasion not call you to warn you on the substance of Police Confidential Report on you and

(b) as a result did you not react by frequently threatening to commit for contempt policemen on duty in your coon as alleged by the Commissioner of Police

2.(a) On 21/3/69 an attempt was made by you in the course of the hear ing of the criminal case Charge No.MB/1391C/68-Police v. Alfred Erlimi Obaseki to commit Mr. Justice Omo-Eboh for contempt of court. At a meeting on this matter summoned by His Excellency, Co. S.O. Ogbemudia, Military Governor of this State, at which meeting the Chief Justice, the Attorney-General the Commissioner of Police, Mr. Justice Omo-Eboh, Mr. M.A. Eweka (Assistant Commissioner of Police) were present, you said in answer to a question that owing to certain rumours you heard of the secret repon made by Mr Eweka against you, you had in mind to commit him for contempt of court, whenever he appeared in your coun to give evidence. You admitted a preconceived plan to commit Mr. Eweka for contempt but denied having such preconceived plan against Mr. Justice Omo-Eboh as alleged by him. The pertinent question now asked you is whether in your opinion it is right of any judicial officer to make up his mind before a witness appears in his court to commit that witness for contempt.

(b) In answer to another question at the same meeting you said it appeared to you that pressure was being put on you to convict Alfred Edina Obaseki in the case before you and that as such you would have no alternative but to convict him. This was a very embarrassing statement to the Government, and so it was decided at the meeting that although the case was part-heard by you, prosecution should be withdrawn. The question you are here being asked is this:

“As a Judicial Officer, do you think it is right to make up your mind before a case is finished to jail an accused person because pressure has been brought to bear on you (assuming that there was pressure which there was not in this particular case)

3. By letter No. C.334/175 dated 18th September, 1970, you were “placed on indefinite leave pending the determination of your matter by the Advisory Judicial Committee and/or the Public Service Commission.” The Public Service Commission by letter No. PC.801/179 dated 4/2/71 with endorsement by the judicial Department dated 10/2/71, and delivered to you on 12/2/71, instructed you to report forthwith in the Ministry of Justice to assume duty there in a post of equivalent status. You wrote a letter of protest dated 13/2/71 and you have since not reported in the Ministry of Justice as instructed. Explanation for your disobedience and insubordination in this regard is required, and your attention, I am to add, is directed to the consequences of staying away from duty without permission as you have now done.”

The applicant received Exhibit MOK.18 and by letter dated the 18th February,1971, addressed to the Chief Registrar (Exhibit MOK.19) he replied it expressing surprise at being asked by the Chief Justice to make representations to the Advisory Judicial Committee “in a matter conclusively dealt with by the said Committee” and asking to be supplied with the “full proceedings and finding of the Advisory Judicial Committee”. The letter, Exhibit MOK.19, supra, was, according to applicant’s affidavit, replied by the Public Service Commission and the reply (Exhibit MOK.20 dated the 14th April, 1971) is reproduced here under:

Public Service Commission,

P.M.B.1066,

Benin:City,

Mid Western State of Nigeria

14th April 1971

Our Ref: No. PC.8011203

Mr. M.O. Kubeinje

u.f.s. The Chief Registrar,

Judicial Department,

Benin City.

Mr. M.O. Kubeinje-Chief Magistrate

I am directed to refer to letter No. C.334/196 of 16th February, 1971, which the Chief Registrar, Judicial Department, addressed to you outlining certain acts of misbehaviour committed by you as well as to your reply thereto dated 18th February, 1971, and to inform you that, after very careful consideration, the Public Service Commission considers that these are very grave charges against an officer holding the post of Chief Magistrate in the Judicial Department and that you have not succeeded in exculpating yourself. In the circumstance, the Commission has come to the conclusion that you are not a fit and proper person to continue to perform the duties of your present post.

2. Under normal circumstances, the Commission would have had no alternative but to determine your appointment in the Public Service of this State forthwith. But considering the length of your service, the Commission is inclined to exercise leniency in disposing of this matter and to give you another chance in the Service. As an act of compassion, therefore it has been decided by the Public Service Commission that I should offer to transfer to the Ministry of Justice in the post of Principal State Counsel Group 6-a post which carnes the same salary as that attached to Chief Magistrate which you are currently holding. It has been decided to take this very lenient action because it is hoped that you will now realise how very important it is that your behaviour as a Public Officer especially as a member of the Bench, must be such as to reflect credit on whichever Government Department you are privileged to serve. I am directed, therefore to request that you accept, within two days from the date of this letter, the offer of transfer to the Ministry of Justice as Principal State Counsel Group 6. In that event, you are required to report for duty in that Ministry not later than 16th April, 1971.
3. Should you be unable to accept this offer of transfer, the Commission has decided that you should regard this letter as a notification that you are summarily removed from the Public Service of this State with effect from 16th April, 1971. In that event, no further communication will be addressed to you on this matter.
4. I shall be grateful if you will kindly acknowledge the receipt of this letter. ”

Pursuant to leave granted by the High Court, the Public Service Commission, was served with the applicant’s ex parte application and other processes and the State Attorney-General was made a party. It is manifest that what the applicant sought to be quashed by certiorari were “the proceedings before the Public Service Commission” as contained in the letter Exhibit MOK.20 which we have reproduced above. At the resumed hearing, both the Chief Registrar of the High Court, Joseph Brookman Amissah, and the Principal Assistant Secretary of the Public Service Commission, Ehigio Ogbomo Obomo, swore counter-affidavits. In his own counter affidavit of the applicant and stated that he was dismissed from the Public Service of the State as from the 16th April, 1971, as a result of reports that during the trial by him of the Criminal Charge No. B/ 1319C/68, Police v. Enina Obaseki, he threatened to commit a witness, Mr. Justice Omo-Eboh, for contempt of his court and that he had threatened on a number of occasions to commit police officers for contempt of court. Paragraphs 10, 11 and 12 of the affidavit, or counter-affidavit, of the Chief Registrar, state as follows:

“10. That I am also informed by the honourable Chief Justice, and I verily believe him, that after the event in which the applicant threatened to commit Mr. Justice Omo-Eboh that there was a meeting convened by His Excellency Col. S.O. Ogbemudia in his office at which the Honourable Chief Justice, the Honourable Attomey-General, the Commissioner of Police, Mr. Justice Omo-Eboh, Mr. M.A. Ewaka (A.C.P.), and the applicant were present.

11. That I am informed by the Honourable Chief Justice, which I verily believe, that at the said meeting the applicant made the following admissions in answer to questions:

(a) That because of rumours of a secret report made against him by Mr. M.A. Eweka, he decided to commit Mr. Eweka any time he appeared before him in this court;

(b) He also decided to discharge Enina Obaseki who was standing trial before him on a criminal charge because of the pressure that was being put on him.

12. That by a letter dated 4th February, 1971, and served on the applicant on 12th February, 1971, the applicant was instructed to assume duties in the Ministry of Justice which instruction the applicant refused to obey. (Copy of letter exhibited by applicant as Exhibit MOK.16).”

In his own counter-affidavit, the Principal Assistant Secretary at the Public Service Commission deposed that the applicant’s appointment to the Public Service of the State was confirmed on the 20th June, 1969, and that he was removed from the Service on the 16th April, 1971. Paragraphs 3, 8, 9 and 11 of the counter-affidavit of the Secretary to the Public Service Commission read as follows:

“3. That the first respondent is the body vested with the power to appoint persons to hold or act in offices in the public service of this State (including powers to make appointments on promotion and transfer and to confirm appointments) and to dismiss and exercise disciplinary control over persons holding or acting in such offices.

8. That from records available at the Commission and to the best of my knowledge and belief the relationship between the Government of the Midwestern State and the applicant is that of master and servant.
9. That by letter No. C.334/209 of the 10th April, 1971, the Advisory Judicial Committee advised the Public Service Commission of this State: “At its meeting held on 2nd April, 1971, the Advisory Judicial Committee considered the letter addressed to Mr. M.a. Kubeinje by the Chief Registrar (C.3341196 of the 16th February, 1971) as well as Mr. Kubeinje’s reply dated 18th February, 1971. The Committee noted that Mr. Kubeinje did not answer the specific charges in the Registrar’s letter under reference.

In the opinion of the Committee, the charges in paragraph 1(b) and 2(a) and (b) of the said letter are of such gravity as to disqualify Mr. Kubeinje as a fit and proper person to continue to perform judicial function. In order to preserve the good name of the Judiciary and in Mr. Kubeinje’s own interest, the Committee in exercise of the powers vested in it under section 4(3) of the Advisory Judicial Committee Edict No. 12 of 1970, decided to advise the Public Service Commission to transfer Mr. Kubeinje to the post of Principal State Counsel, Group 6, in the Ministry of Justice. He should be required to report for duty in the Ministry of Justice within 48 hours of the receipt of the letter informing him of the transfer. If he fails or refuses to report., the Committee, acting in accordance with section 4(2)(a) of the Advisory Judicial Committee Edict No. 12 of 1970 further advises that his appointment should be terminated.’

11. That after very careful consideration, the first respondent held the view that the charges against the applicant were very grave and that the applicant did not exculpate himself.”

It is relevant to point out however that following objections to that paragraph by learned counsel for the applicant at the hearing, paragraph 90 of the counter affidavit of Mr. Obomo was struck out by the court. Before the arguments on the application for the Order of Certiorari, the applicant asked for and obtained the leave of court to file a further affidavit in support of his application. He did file such further affidavit on the 31st December, 1971. In that affidavit, the applicant stated that he was a confirmed officer in the Public Service of the State and that he did not at any time ask for any transfer to the Ministry of Justice and that at no time were any disciplinary proceedings instituted against him by either the Head of his Department or the Public Service Commission to justify his dismissal from the Public Service pursuant to Regulation 56 of the Public Service Regulations, 1963 (Western Nigeria Legal Notice No.99 of 1963 Public Service Commission Regulations, 1963, applicable then in the Mid Western State). The affidavit of the applicant thereafter contained a lengthy story about events surrounding the trial of the Criminal Charge against Enina Obaseki to the effect that during the trial the Acting Chief Justice of the State requested the applicant to show him a copy of the proceedings of the trial; that he duly showed same to the Chief Justice wherewith the Chief Justice on seeing the records exclaimed that he did not see how a magistrate should be blamed for doing his duty and lawfully granting bail to an accused person and also told him (the applicant) that a police officer in charge of security in the State, by name Eweka, had written a report on the applicant to the Commissioner of Police, the Chief Justice and the Military Governor of the State.

The applicant’s affidavit further stated that a few days after he had seen the Chief Justice, a Senior State Counsel, by name Mr. Agbahowe, had requested him to take the evidence of a judge who was a witness in a criminal case-Mr. Justice Omo-Eboh-in camera; he refused to do this and indeed during the trial of the case, a serious altercation ensued between the applicant and the judge, as the applicant would not allow the judge’s secretary to take verbatim notes of the evidence of the judge as a result of which he told the judge that his conduct amounted to “contempt of my court and that he knew that to be so”. The concluding paragraphs of the applicant’s affidavit complete the gruesome story and state as follows:

“3. That I say further by way of a further affidavit to the counter-affidavits as follows:

(zz9) That to the best of my recollections, the altercation between me and Mr. Justice Omo-Eboh lasted for at most 10 minutes and after which, I ordered his stenographers out of my court and the proceedings continued normally and I took Mr. Justice Omo-Eboh’s evidence and he was cross-examined by defence counsel without any further incident.

(zz10) That at the end of Mr. Justice Omo-Eboh’s evidence I received a telephone call from the learned Messrs. Agbahowe, M.A. Eweka and defence counsel (Mr. Sadoh) to come and see him in Chambers.

(zz13) That before I could put in a word Mr. Eweka told the learned Acting Chief Justice that he admired me for being able to restrain myself in the circumstance and that if I was a younger person I could have committed OmoEboh, J., for his conduct in court that day.

(zz14) That the learned Acting Chief Justice then replied that he had told Omo-Eboh, J., that it was not proper to take his evidence in Charge No. MB/1391C/68 aforesaid in camera and that Omo-Eboh, J., insulted him for saying so.

(zz21) That to the best of my knowledge, information and belief it was the Military Governor who had advised that in the circumstances, the Charge against Mr. Enina Obaseki be withdrawn but the idea was opposed by the Commissioner of Police for this State at the time (Mr. P.A.Izelien), Mr. Justice Omo-Eboh and one Dr. Aro (another member of the Rebels Activities Tribunal) who was also present at the meeting.

(zz23) That subsequently and on the date to which I had adjomned the case the then Director of Public Prosecutions (Mr. Ojoshipe) applied in person for the withdrawal of the case and I granted him leave to do so.”

At the hearing of the application for the Order of Certiorari there were a number of preliminary objections taken by learned counsel on both sides but after the resolution of these, the learned trial judge heard arguments from both sides on the merits or otherwise of the application. That was on the 11th and 12th April, 1972.

At that hearing, learned counsel for the applicant submitted that the proceedings before the Public Service Commission referred to in Exhibits MOK.19 and MOK.20 were of a disciplinary nature and that the Public Service Commission in this respect had failed to comply with the provisions of Regulations 41, 56, 59 and 60 of the Public Service Regulations; it was contended for the applicant as well that he was a super-scale officer and the conditions and procedures for dismissing an officer in that category are contained in Regulation 56 and that the procedures adopted by and the decisions of the Public Service Commission in the present case “were a flagrant violation of this procedure”. Learned counsel for the applicant then referred to the facts of the case, reviewed the events leading to the dismissal of the applicant and submitted that in as much as the Public Service Commission had rejected the advice of the Advisory Judicial Committee “and conclude that it is a case deserving disciplinary action” the Public Service Commission was bound to follow the procedures laid down by law and could only award the punishments prescribed by law. If it did less or more the Public Service Commission would be acting in excess of jurisdiction and certiorari would lie to quash a subsequent and consequent order. Learned counsel for the applicant then submitted in the alternative that in this case the Public Service Commission drafted the charges, tried the appellant on the charges and convicted him thereof without his being “given an opportunity to defend himself’.

For his own part, learned Senior State Counsel who appeared for the respondents, i.e. the Public Service Commission and the Attorney-General of the State, contended that the application should be refused. He submitted that the Public Service Commission is a statutory body and that like all civil servants the applicant is a servant of the Public Service Commission and that “therefore the Commission has absolute power to terminate his appointment”. Learned Senior State Counsel further contended that certiorari will not issue as between a master and a servant and that “to quash the proceedings before the Public Service Commission would amount to an order for specific performance” and would offend against section 43 of the Constitution of the Midwestern State of Nigeria. On the question of the proceedings before the Public Service Commission, learned Senior State Counsel submitted that the court could make a declaratory order but the court could not order the Public Service Commission to re-sit or reassemble to comply with such an order. Learned counsel further submitted that the proceedings or adjudication sought to be quashed were not before the court and that although the applicant’s affidavit exhibited the letter, i.e. Exhibit MOK.20, a “mere reference to a document does not make it a part of the record”. Learned Senior State Counsel further submitted that as the proceedings of the Public Service Commission sought to be quashed were not put in evidence before the court, it was impossible to ascertain what was actually wrong with it and “nothing is known with certainty as to what went on at the Advisory Judicial Committee and the Public Service Commission”. Concerning the order of the Public Service Commission to transfer the applicant to the Ministry of Justice, learned Senior State Counsel submitted as follows:

“De Smith’s Judicial Review is authority for saying that a court can sever in special cases. If the invalid part of an order is distinct and severable, then it can be made. If P.S.C. has no right to transfer, the court can quash that aspect of it. Under the Edict, the applicant does not need to ask for transfer.”

Learned Senior State Counsel finally submitted that if the applicant’s further affidavit was his answer to the charges leveled against him in Exhibit MOK.18, then it was the applicant’s fault not to have replied Exhibit MOK.18 in the same fashion; and that in any case the granting of an Order of Certiorari was discretionary in the court and in the present case the court should dismiss the application.

In a reserved judgment, the learned trial judge, Ighodaro, J., acceded to the applicant’s request and made the Order of Certiorari as sought. The learned trial judge fully reviewed all the facts-

“as determined and uncontradicted by the affidavits and counter-affidavits, because they fully give the necessary background to this application and the various events and correspondence culminating in the letter addressed by the Public Service Commission to the applicant on April 14, 1971.”

The learned trial judge found against the applicant on the ground that the present proceedings were not initiated (as suggested by Regulation 41 of the Public Service Regulations) by the applicant’s Head of Department and held that they were rightly so initiated by the Chief Registrar. The learned trial judge also found against the applicant on the ground that the Advisory Judicial Committee could not transfer the applicant and observed that that Committee had the powers to do so under the provisions of section 4(3) of the Advisory Judicial Committee (Consolidation) Edict 1970, Edict No. 12 of 1970. The learned trial judge however disagreed with the original proceedings, no-one can say whether or not the proceedings were properly initiated”. Concerning the issue of transfer, the learned trial judge referred to section 4(3) of the Advisory Judicial Committee (Consolidation) Edict 1970 under which that Committee is empowered to effect the transfer of public servants. The learned trial judge then compared that section with Regulation 26(b) of the Public Service Regulations and stated the result of this exercise as follows:

“I am in agreement with learned State Counsel that under section 4(3) of the Advisory Judicial Committee Edict, the Committee has power to transfer any individual in the Public Service. It is equally true that the Public Service Commission has the power of appointment, transfer, removal for general inefficiency and dismissal under the Constitution. But there is a difference. The Advisory Judicial Committee could transfer any officer under its control whether that individual has requested a transfer or not. In the case of the Public Service Commission, there is Regulation 26 which relates to appointments or transfer or secondment.

Regulation 26(b) provides that where a Head of Department recommends to the Commission that a vacancy in his Department in Category 1 or 2 should be filled by transfer or secondment he shall

‘(b) Where the recommended transfer or secondment is of an officer in the public service of the Region forward the views of the officer’s Head of Department which shall comprise or initiate a statement as prescribed in paragraph (2) of Regulation 27 or arrange for these views to be submitted direct to the Commission that he has done so. if the officer has not applied for transfer or secondment his own views shall similarly be obtained and report forwarded to the Commission.”

I am perfectly satisfied that the Public Service Commission has no right to transfer if the officer has not applied for transfer. Where there is a contradiction between the provisions of the Regulations governing the Public Service Commission and the Advisory Judicial Committee but can formulate its own rules of procedure, it is my view that the Public Service Commission is bound to adhere to his own regulations. It is to be observed that the regulation does not provide that the Advisory Judicial Committee may recommend to the Public Service Commission that an offending officer be dismissed by them.”

The learned trial judge advanced to the implied concession of this point in the argument of learned Senior State Counsel where he asked the court to quash the portion of the order of the Public Service Commission which had ordered the transfer of the applicant but to affirm the portion of the same order that rightly dismissed him and he pointed out that

“The right of choice of where to work must be safeguarded if freedom to work is to have any meaning in a democracy………

In my view, the transfer of the applicant by the Public Service Commission was certainly a form of punishment, notwithstanding the fact that the Commission was apparently acting under a compassionate motive……..

It might be argued also that the summary transfer of the applicant was in substance a disciplinary measure carried out in breach of natural justice.”

The learned trial judge then dealt with the submissions on behalf of the applicant that the provisions of Regulation 56 of the Public Service Regulations which should apply to the applicant were not followed in this case, that the Public Service Commission did not envisage the provisions of Regulation 60 and that even if it did, there had been no compliance with the provisions of that Regulation. He also dealt with the submissions of the learned Senior State Counsel that the Public Service Commission in this case was applying the provisions of Regulation 60 and that there had been substantial compliance with those provisions. The learned trial judge then set out and compared the provisions of Regulation 56 of the Public Service Regulations (which deal with the procedure for dismissal of officers in Category 1) and those of Regulation 60 (which deal with the procedure for removal for inefficiency of officers in Categories 1, 2 and 3). He concluded that when the Public Service Commission asked the applicant to “accept a transfer” or consider himself “removed”, this was visually a dismissal; and that the Public Service Commission decided that the applicant was not a fit and proper person to perform judicial function without, as required by Regulation 60, giving him the opportunity of making a defence. The learned trial judge on this point observed thus:

“In my view, the applicant had no opportunity to prepare and to present his case; he had no access to the documents that concerned him; and no explanation was given to him for refusing him the documents even though he was prepared to pay for the cost of the proceedings and finding of the Advisory Judicial Committee. It is my firm view that the provisions of the Regulations dealing with the dismissal or removal of officers of the applicant’s category from the Civil Service have not been complied with. A strict compliance with these regulations is necessary………..

Since the Commission under section 71 of the Constitution of the Midwest, is authorised to make provisions for regulations governing its own procedure, the holders of senior posts are not to be dismissed or removed without certain conditions imposed and formalities being complied with. If these formalities are not complied with, the courts are duty bound to entertain the complaint of any person that the Commission have not acted in the due exercise of their duties.”

Concluding his judgement, the learned trial judge observed that the Public Service Commission had failed to comply with the elaborate provisions of the law designed to ensure “that officers holding junior and senior posts are protected from arbitrary dismissal” and that in this case the Public Service Commission acted in contravention of the rules of natural justice as “the facts or evidence which led the Public Service Commission to decide on the removal of the applicant were not at any time communicated to him”. He then ended his judgement thus:

“In this matter, I am of the opinion that the proceedings before the Public Service Commission be invalidated. I therefore quash the decision of the Public Service Commission of the Mid-West State, as contained in the letter dated No. PC.8011203 of April 14, 1971, and removing summarily the applicant from his post as Chief Magistrate in the Public Service of the State if the applicant refused to accept a transfer from the Judicial Department to the Ministry of Justice; and I hereby order that an Order of Certiorari should go and the aforesaid letter declared inoperative, void and of no effect.”

This judgement was delivered on the 29th June, 1972, and on the 9th August, 1972, the respondents, i.e. the Public Service Commission and the Attorney General of the Mid-Western State, appealed to this Court against the judgement of the High Court. Although two grounds of appeal were originally filed with the respondents’ Notice of Appeal, leave was sought and obtained on their behalf at the hearing to argue additional grounds of appeal. The arguments before us by the learned Solicitor-General of the Mid-Western State, who appeared for the appellants can be categorised under three main headings, that is to say

(i) The order made by the learned trial judge on the motion is inconsistent with the relief sought by the applicant;

(ii) Assuming that the letter (Exhibit MOK.20 dated the 14th April, 1971) constituted the proceedings sought to be quashed by the applicant, then on the findings of the High Court certiorari will not lie; and

(iii) The judgement of the High Court does not reflect any consideration of Regulations Nos. 56 and 60 of the Public Service Regulations and the effect on the facts of the case of the provisions of the Advisory Judicial Committee (Consolidation) Edict 1970 and some other statutory provisions.

With respect to the first contention, the learned Solicitor-General submitted that inasmuch as what the learned trial judge had declared inoperative and void was the letter Exhibit MOK 20, there was an inconsistency as what the applicant, both by his motion paper and by paragraph 2 of the Reliefs sought by him as set out in his Statement in support of the application for certiorari, is the quashing of “the proceedings before the Public Service Commission”. Learned Solicitor-General submitted that the letter Exhibit MOK 20 was only a “conduit pipe” reflecting the effect of the deliberations of the Public Service Commission and not the proceedings sought to be quashed by the applicant in his application.

We are satisfied that the argument is artificial in the extreme. It is true as the learned Solicitor-General has pointed out that the Public Service Commission ought to have a record of their proceedings for Public Service Regulation No. 6 prescribes thus:

“6(1) A record shall be kept of the Commissioners present and of the business transacted at every meeting of the Commission.

(2) Any Commissioner who is present at a meeting when a decision is made shall be entitled to dissent from the decision and to have his dissent and his reasons therefore set out in the record of the meeting.”

The Regulation enjoins upon the Public Service Commission to keep a record of all the business transacted at every meeting of the Commission”. The argument of learned Solicitor-General, however, overlooks the provisions of Regulation 7(1) of the same Regulations which read as follows:

“7(1) Subject to paragraphs (2) and (3) of this regulation a decision may, without a meeting having been held, be made by the Commission by circulation of the relevant papers among the Commissioners present in Nigeria at the time and the expression of their views in writing and in such case the decision shall the view of the majority of Commissioners.”

We have omitted Regulation 7(2) and 7(3) because they are irrelevant for consideration on the point in issue. Regulation 7(1) permits the Public Service Commission to make a decision without a meeting of the Public Service Commission being held and in such a case nothing but the views expressed in writing of the Commissioners would appear on the relevant files.

Besides, the argument of learned Solicitor-General would appear to mean that the decision of a statutory body is not a part or portion of the relevant proceedings at a meeting of that body. It is of course inconceivable to argue that the judgement of a court in a case is not part of the proceedings of that court in that case and we are unable to decipher the actual pith of the submissions of learned Solicitor General on this point. The procedure governing an application for an Order of Certiorari to quash proceedings is set out in Order 53 Rule 6 of the English Rules of the Supreme Court (1973 Annual Practice page 779) and the Rule provides as follows:

“6(1) In the case of an application for an Order of Certiorari to remove any proceedings for the purpose of their being quashed, the applicant may not question the validity of any order, warrant, commitment, conviction, inquisition or record unless before the hearing of the motion or summons he has lodged a copy thereof verified by affidavit in the Crown Office, or accounts for his failure to do so to the satisfaction of the Court or judge hearing the motion or summons.

(2) Where an Order of Certiorari is made in any such case the order shall direct that the proceedings shall be quashed forthwith on their removal into the Queen’s Bench Division.”

Evidently, the Rule covers the quashing of proceedings and enjoins upon a party seeking to question the validity of any order, warrant, commitment, conviction, inquisition or record the duty of ensuring that a copy of such was lodged in court before the hearing of the application, or an account, a satisfactory one at that, be available for his failure so to file such a copy at the hearing. Learned Solicitor-General has submitted, relying upon a dictwn in the case of Giacomo Costa Du Andrea v. British Italian Trading Co. Ltd. (1963) 1 Q.B.201, that the mere fact that the applicant referred to Exhibit MOK.20 in his affidavit, does not make the proceedings at the deliberations of the Public Service Commission a part of the records before the High Court. We point out briefly that the argument does not take into consideration the wording of the present application which is to quash “the proceedings before the Public Service Commission of the Mid-Western State of Nigeria as contained and described in letter No.PC.801/203 of the 14th April, 1971, whereby”. That letter as Exhibit MOK.20 which of course is exhibited to the affidavit of the applicant and, as far as he is concerned, that was the record which he had sought to be quashed. In the case of Giacomo Costa Du Andrea v. British Italian Trading Co. Ltd., supra, relied upon by the learned Solicitor-General, there was no question of any prerogative order, let alone an Order of Certiorari. The appellant in that case had appealed to the Court of Appeal against a decision of the High Court (McNair, J.) refusing to set aside the order of an umpire under section 23(2) of the Arbitration Act, 1950, which had affirmed an order of the Appeal Board confirming an award by the umpire. The appeal was dismissed and the appellants were reproved by the Court of Appeal for not ensuring that the contract on which the award of the umpire was based had been made part of the record of the award. In the course of the Judgement in that case, Sellers, L.J., at page 219 of the Report, observed thus:

“Neither does it open the door to look at a contract because it happens to be mentioned in the recital or mentioned in what is in effect the conclusion or the order which the award makes. The difficulty is in its application-not, I think, as to whether any particular document has been expressly incorporated in an award but whether it has, in the circumstances, to be regarded as the intention of the tribunal which made the award to include the document in question as part of its award and its reasoning. Of course, if any document is intended to form part of an award it should be, if things are properly conducted, appended or set out in full. It should be made clear that it is the intention of the award that the document should be actually incorporated into it.”

We have already made it clear that the case referred to by learned Solicitor General has no reference to an application for an Order of Certiorari and manifestly what it decided is that where it is intended that a document should form part of a particular record, that document should be properly incorporated into the record. In the case in hand, the applicant did include in the record before the High Court what he sought to be quashed. In Adedeji v. Police Service Commission (1968) N.ML.R. 102, what the applicant sought to be quashed and what indeed was quashed by the Supreme Court was the letter of the Federal Police Service Commission conveying to him the decision of the Federal Police Service Commission to dismiss him and that on the basis that a previous letter addressed to the appellant therein asking him to exculpate himself from offences, the nature and particulars of which were not disclosed to him, was held to be in breach of the principles of natural justice.

` Learned Solicitor-General contended further that if the full records of the proceedings of the Public Service Commission were made available it was possible that the Public Service Commission of the Mid-Western State had complied with all necessary requirements of the law. On this point, learned Solicitor-General referred to the case of Kilduff v. Wilson & Ors. (1939) 1 All E.R. 429, where at p. 447, Scott, L.J. observed thus:

“I have read that out, but the details to which the plaintiff there referred do not matter. The point is that that is the statement that he then made to the Chief Constable. He did not then ask for any further opportunity of explanation, he did not complain that he had not been given the opportunity of giving the explanation before, and, in my view, he there indicated that he was satisfied with that opportunity to make his personal statement then and there.”

To start with, that case was a suit or an action for a series of declarations of invalidity of the acts or actions of the first defendant (a Chief Constable of Liverpool) and the other defendants (who were members of a Watch Committee) and it was sought by the action to declare the invalidity of the action of the defendants. The court held in the case that the Regulation which was stated by the appellant to have been breached by the defendants was only permissive since it merely prescribes, inter alia, that the police officer being accused shall be allowed to state whether he “desires to offer his explanation personally to the Chief Officer of Police and shall, if he desires it, be given an opportunity of doing so”. Learned Solicitor-General did not show us any provisions of the relevant Regulations in this case which were extensively canvassed in the court below which were so permissive and so could be waived, and we are satisfied ourselves that the reference was unhelpful.

Furthermore, and on this point, we are of the view that the argument of learned Solicitor-General does not take into consideration the history and practice with respect to certiorari. The record which has always been prescribed consists of all the documents which are officially kept by the inferior tribunal concerned. See per Denning, L.J. in R. v. Northumberland Compensation Appeal Tribunal ex parte Shaw (1952) 1 All E.R. 122 at pp.130, 131. But whether or not the record was complete or defective has always been decided by the Court of King’s Bench which either directed the inferior court to complete the record by bringing up the King’s Bench such portions of the record as were wanting or simply quashed the record on the material available before it on’ the basis that it was the duty of the inferior court or tribunal to complete hyracoid of the King’s Bench if such tribunal thought that the other portions of the record would justify its action. See The King v. Apsley (1671) 82 E.R 550; also Regina v. Bolton (1841) 113, E.R. 1054. This therefore is the position at law. The Courts of King’s Bench always required the document or information which initiated the proceedings (so as to know the actual charge or complaint concerned-see Exhibit MOK.18) and the adjudication of the inferior tribunal or statutory body (so as to know the nature of the wrong-doing or deficiency-see Exhibit MOK.20) See the Anonymous (1697) 91 E.R. 412; also.R.v. Northumberland Compensation Appeal Tribunal, supra, at pp. 131-132. In the case of Inter the. Inhabitants of the Parishes of South Cadbury and Braddon. Somerset (Inhabitants) (1710) 91 E.R.515, there was an objection to an Order of Justices to the effect that they did not indicate whether they had quashed an order for a formal or material defect but the court observed. rejecting the objection as follows:

“The justices are not bound to express the reason of their judgement in the judgement, no more than other Courts; and if it was otherwise held in the late Chief Justice’s time, it past without due consideration.”

It is clear therefore that, apart from setting out the document which initiates the proceedings and the adjudication it was not necessary to set out the reasons or the evidence for the adjudication, and where the inferior tribunal or statutory body of its own motion supplied the reasons and those reasons were found to be wrong, certiorari will lie all the same.

We conclude without any doubt whatsoever, on the first leg of the appeal, that the point made by the learned Solicitor-General about the absence of the formal records of proceedings of the Public Service Commission is not valid, that the document Exhibit MOK.20 is what the applicant regarded, and rightly so, as the offending proceedings which he desired to be quashed and that in law inasmuch as the document which initiated the entire proceedings culminating in the issue of Exhibit MOK.20 is also part of the record, the records of the High Court were complete.

Learned Solicitor-General however argued, on the second limb of his appeal, that assuming that the letter MOK.20 constitutes, as we have already found, the relevant proceedings to be quashed, then on the facts found by the trial judge in the High Court, certiorari will not lie. We have already set out extensively the findings of fact of the learned trial judge. It is undisputed that the High Court has the exercises supervisory jurisdiction over all inferior tribunals, both statutory bodies so that they “may cause further to be done thereon what of right and according to the law and custom of England we shall see fit to be done”. (See , wording of the old writ of certiorari.) In the present case, the learned trial judge found that the applicant was a civil servant in Category 1 and this was not disputed. He also found that assuming he had done all the wrong ascribed to him in the letters Exhibits MOK.13 and MOK.18,he still should be dealt with under Regulation 56 of the Public Service Regulations and certainly not, as claimed by the respondents, under Regulation 60. In his judgement, the learned trial judge had fully set out the provisions of Regulation 56(1) and 60(1). Regulation 56(1) provides in frill as follows:

“56. Whenever a Head of Department considers it necessary to institute disciplinary proceedings against a public officer in category 1 or 2 or a public officer in category 3 who has been confirmed in a pensionable office and he is of the opinion that the misconduct alleged against the officer is such as would, if proved, justify the officer’s dismissal from the public service the following shall apply:

(1) If the officer is in category 1

(a) The Head of Department shall report the case with a statement of his opinion and the reasons for it to the Commission.

(b) If the Commission directs that a charge should be framed against the officer, the Head of Department shall, after consulting the Solicitor-General with regard to the terms of the charge, forward to the officer a statement of the charge framed against him together with a brief statement of the allegations on which the charge is based in so far as they are not clear from the charge itself, and shall call on him to state in writing before a day to be specified (which date shall allow a reasonable interval for the purpose) any grounds upon which he relies to exculpate himself.

(c) The Head of Department shall, immediately after the specified day, either report to the Commission the fact that the accused officer has failed to furnish an exculpatory statement, or shall forward to the Commission with his comments or recommendations any such statement as the officer may have furnished.

(d) (i) Mter receiving the report or statement together with the comments and recommendations referred to in the sub-paragraph (c) of this paragraph, the Commission may appoint a Committee comprising such persons as it shall specify, being not less than three in number, to hold an inquiry into the matter.

(ii) One member of the Committee shall be public officer with legal, qualifications. The Head of a Department of the officer concerned shall not be a member of the Committee.

(e) The Committee shall inform the accused officer that of a specific day the charge made against him will be investigated by them and that he will be allowed or, if the Committee shall so determine, will be required, to appear before them to defend himself.

(f) If witnesses are examined by the Committee the accused officer shall be given an opportunity of being present and. of putting questions on his own behalf to such witnesses. He may also call witnesses in his own defence and such witnesses may be examined by the committee

(g) The Committee may in its discretion permit the Head or Department” to be represented by a public officer or a legal practitioner provided that where the Committee permits the Head of Department to be represented by a legal practitioner or a public officer holding the qualifications of a legal practitioner, it shall permit the accused officer to be represented by a legal practitioner is he so wishes.

(h) If, during the course of the inquiry, grounds for the framing of any additional charge against the accused officer are disclosed, the Committee shall. inform the Commission and, if the Commission thinks fit to proceed against the accused officer upon such grounds, the same procedure shall be followed by the Head of Department in framing any additional charge as was adopted in framing the original charge.

(i) The Committee, having inquired into the matter, shall forward its report there on to the Commission, accompanied by the record of the charges framed, the evidence led, the defence, other proceedings relevant to the inquiry, and its finding on the charges, through the Head of Department, who shall add his recommendation as to the punishment, if any, to be awarded.

(j) The Commission, after consideration of the report of the Committee, may, if it is of the opinion that the report should be amplified in any way or that further investigation is desirable, refer the matter back to the Committee for further investigation and report, or may itself hear evidence or examine any documentary evidence.

(k) The Commission’s decision on each charge preferred against the accused officer (but not the reasons for the decision) shall be communicated to him.”

Regulation 60(1) provides also, in full, as follows:

“60(1) Before recommending to the Commission that a public officer in category 1 or 2 who has been confirmed in a pension able office should be removed, from the public service or otherwise dealt with on grounds of inefficiency, and before removing from the public service or otherwise dealing with a public officer in category 3 who has been confirmed in a pension able office, on such grounds, a Head of Department shall prepare a statement as to the officer’s general standard of efficiency and shall afford him an opportunity of considering the statement and showing cause why he should not be removed from the public service or otherwise dealt with on grounds of inefficiency:

“Provided that nothing in this paragraph shall prevent the Commission or a Head of Department from ordering, or a Head of Department from recommending, in each case as may be appropriate to the category of the officer concerned, the removal from the public service, on grounds of inefficiency, of a public officer who has been confirmed in a pension able office where the Commission or the Head of Department, as the case may be, is of opinion upon the completion of proceedings instituted for the dismissal of the officer that the officer does not deserve to be dismissed but that the proceedings disclose grounds for removing him on account of inefficiency, in which event it shall not be necessary to comply with the main provisions of this paragraph.”

It is clear that whilst Regulation 56 deals with disciplinary proceedings leading to dismissal of a public officer, Regulation 60(1) deals with removal of a public officer on grounds of inefficiency.

There has been no complaint of inefficiency against the applicant herein. The letter Exhibit MOK.20 “summarily removed” the applicant from the Public Service. Nowhere is it stated in Exhibit MOK.20 under which of the Regulations the Public Service Commission of the Mid-Western State had acted and, although the Public Service Commission is not bound in view of Regulation 56(1)(k) to state the reasons for its decisions, it still is obliged to let the public officer know the misdeeds for which he is being dismissed. The power to remove summarily is contained in the proviso to Regulation 60(1) but then it is only exercisable “upon the completion of proceedings instituted for the dismissal of the officer”. This takes one back to the provisions of Regulation 56 and there had been no time in the course of the entire proceedings herein when the Public Service Commission had founded a defence upon a compliance with the provisions of Regulation 56. In any case, the learned trial judge found, and we are in agreement with him, that the Public Service Commission in this case complied with neither Regulation 56 nor Regulation 60. The Public Service Commission had no power to transfer the applicant in the way it did, if he had not asked for the transfer He refused to be so wrongfully transferred and then the Public Service Commission asked him to “accept a transfer” or consider himself “removed”. It seems inferable from these facts that the applicant was removed because and simply because he had refused to accept the wrongful’ order of transfer. As the order of transfer was in itself defective, the applicant had committed no wrong and the provisions of Regulation 60 (or 56) are never

applicable. They were indeed employed and as well misapplied. Speaking of the same type of error and the application of certiorari, Denning, L.J., as he then was, in R. v. Northumberland Compensation Appeal Tribunal, ex parte Shaw (1952) 1 All E.R. 122 at p. 131, observed:

“We have here a simple case of error of law by a tribunal,’ an error which they frankly acknowledge. It is an error which deprives the applicant of the compensation to which he is by law entitled. So long as the enormous decision stands, the compensating authority dare not pay him the money to which he is entitled lest the auditor should surcharge them. It would be quite intolerable if in such a case there were no means of correcting the error. The authorities to which I have referred amply show that the King’s Bench can correct it by certiorari.”

In the case in hand, the Public Service Commission does no acknowledge its fault for learned Senior State Counsel representing the Public Service Commission argued in the High Court that the learned trial judge should, in Exhibit MOK.20, sever the order of transfer which he conceded was wrong and nullify only that part of Exhibit MOK.20. It is difficult to understand the real importance of the argument of learned Solicitor-General on this limb of his appeal. He contends, as we understand it, that on the facts found by the learned trial judge, certiorari, will not lie because the situation was not one which could be subjected to the paramount of the High Court of the State. Undoubtedly, learned Solicitor-General was mistaken in this contention. It is generally and usually stated that certiorari will lie to correct excess of jurisdiction or want of it in the execution of its duties by inferior courts of record or statutory bodies or tribunals which exercise judicial or quasi-judicial functions. This description of the scope of certiorari certainly obscures, as it has always done, the amplitude of its utility. In “Judicial Review of Administrative Action” by S.A. de Smith, Third Edition at page 347, the following statement of the use of certiorari with which we respectfully agree appears:

“Occasionally judges will speak as if the availability of certiorari or prohibition depends on whether the act impugned is judicial or implores an implied duty to act judicially; but it has also been held that it is enough for the competent authority to be under a ‘duty to act fairly’. All the recent English cases in which such technology has been used have involved alleged breeches of natural justice or non-binding decisions. None has been a straight. frown case of want or excess of jurisdiction.”

We think it necessary to state the correct position at law to be that where it is established before the High Court that a statutory body (or maybe an inferior court) with limited powers has abused that power and that such abuse does and continues to affect prejudicially the rights of a citizen, certiorari will be issued at the instance of that citizen. Such abuse may take the form of non-compliance with rule or rules of procedure prescribed for that body; it may be exemplified in the denial of the right to be heard in one’s defence; it may consist of irregularities which are tantamount to a denial or breach of the rules of natural justice; indeed, it may take the form of an assumption of jurisdiction to perform an act unauthorised by law or a refusal of jurisdiction where it should be exercised. The list is not exhaustive but those are the cases in which certiorari has always been issued by the Courts of King’s Bench. Thus, certiorari has been issued to quash arrest warrants, wittness summonses or even official medical certificates which were irregularly issued. See R. v. Thompson (1909) 2 K.B. 614; R. v. Lewes Justices ex parte Home Secretary (1972) 3 W.L.R 279. In R. v. Boycott ex parte Keasley (1939) 2 K.B. 651, Lord Hewart, CJ., delivering the judgment of the Court of King’s Bench concerning the application to quash by certiorari a medical certificate irregularly issued in respect of a young man, observed at p. 659 of the Report thus:

“In my opinion, on the facts of this case, this certificate of October 5, 1938, created in the way in which we know that it was created, purposed to be and to look like the decision of a quasi-judicial authority, and I think that similar considerations apply to the two documents, one also dated October 5, and the other dated October 10, which it is contended (and I think rightly contended) ought to be regarded as pan and parcel of one and the same transaction. I think that these three documents do come within the range of the jurisdiction of this Court in certiorari.”

Where the transgression of the statutory body or tribunal is a denial of the right to be heard, as indeed the learned trial judge found and held in the present case, the courts have always unhesitatingly granted certiorari. In Kanda v. Government of the Federation of Malaya (1962) A.C. 322 at p. 337, the Privy Council stated the principle of the right to be heard as follows:

“If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him: and then he must be given a fair opportunity to correct or contradict them.”

See also Regina v. Liverpool Corporation ex parte Liverpool Taxi Fleet Operators Association & Anor. (1972) 2 Q.B. 299; also Board of Education v.Rice 1911) A.C. 179, especially per Lord Loreburn at pp. 182 et seqq.

It should be noted however that the superior courts do not question the per formers of administrative action eo ipso and it is not sufficient in order to ground an Order of Certiorari to complain that the statutory body or tribunal did not conduct an investigation in the way that a court of law would do it; in other words, the person applying for the Order of Certiorari must show that the body concerned has in one way or the other failed to act judiciously where it should do so. Lord Jenkins, delivering the judgment of the Privy Council in University of Ceylon v. Fernando (1960) 1 W.L.R 223 at p. 236, appropriately summarised the matter thus:-

”The plaintiff might have fared better if the charge against him had been tried in accordance with the more meticulous procedure of a court of law, which would have included as of course the tendering of Miss Balasingham for cross examination. But that is not the question. The question is whether, on the facts and in the circumstances of this particular case, the mode of procedure adopted by the Vice-Chancellor, in bona fide exercise of the wide discretion as to procedure reposed in him under clause 8, sufficiently complied with the requirements of natural justice. In their Lordships’ opinion it has not been shown to have fallen short of those requirements.”

We cannot agree therefore with the learned Solicitor-General that on the facts found in this case certiorari will not lie. We think it is a proper case for an Order of Certiorari and the learned trial judge was right to grant the Order.

Learned Solicitor-General further argued that the decision of the learned trial judge did not show that he had fully considered the statutory provisions regulating the conduct of the affairs of the Public Service Commission. He referred first to the Advisory Judicial Committee (Consolidation) Edict 1970. But the learned trial judge fully considered the effect of section 4(3) of that Edict, and indeed concluded that the Advisory Judicial Committee was entitled by statutory provisions to transfer or rather advise the transfer of any officer under the control of that Committee, whether that officer had asked for such transfer or not The point here is that it was the Public Service Commission that ordered the applicant’s transfer and it is clear from Exhibit MOK.16 that the Public Service Commission was not acting under the advice of the Advisory Judicial Committee. In any case, the proceedings herein are not against the Advisory Judicial Committee.

Learned Solicitor-General also questioned the applicability of Regulations 56 and 60 of the Public Service Regulations. It is sufficient to say that in the High Court that it was the case of the respondents themselves that they dealt with the applicant under Regulation 60 and that they had indeed substantially complied with the provisions of that Regulation. Learned Solicitor General, in arguing this pan of his appeal, referred to paragraph 9 of the affidavit of the Secretary to the Public Service Commission but, as we pointed out before, that paragraph has been struck out at the hearing. Nevertheless, the paragraph referred to the advice of the Advisory Judicial Committee. The learned trial judge took the view that the Public Service Commission technically accepted the advice to transfer the applicant but that he did not in fact do so. On this point, the learned trial judge observed, in the course of his judgement, as follows:

“Although I said technically the Public Service Commission accepted the advice, yet the Public Service Commission did not actually transfer the applicant but thereby offered to transfer him-it was therefore strictly left to the applicant to accept or reject But the applicant was never given the opportunity after rejecting it, to answer why he should not be removed.”

We think that this observation fully covers the argument of learned counsel for the respondents on this point. Further, learned Solicitor-General referred to section 62 of the Mid-Western State Constitution and pointed out that the Public Service Commission had acted within the powers conferred upon it by that section of the Constitution. He maintained, furthermore, that it does not appear from the judgement of the learned trial judge that he fully appreciated the effect of this section. We are of course at a loss to understand the complaint of the learned Solicitor-General on this part of the argument. The learned trial judge clearly referred to section 62 of the Mid-Western State Constitution in the course of his judgement. He indeed set out the provisions of section 62(1) and then pointed out that it was section 71(1) of the Constitution of the State that empowers any Commission established by the Constitution to regulate its own procedure by regulations for the purpose of discharging its functions.

The learned trial judge then reasoned or argued that inasmuch as the Public Service Commission had regulations by which it is supposed to regulate its own affairs or the conduct of its business, they were bound in order to enjoy the protective powers invested in them by the Constitution to follow the provisions of the regulations which are made by them. He then concluded that in this particular case, the Public Service Commission had not complied with the rules or the regulations by which its procedures must be governed.

The learned trial judge found, and we are in agreement with him, that whatever powers the Public Service Commission exercised in the discharge of their duties, in respect of the category of the officer concerned at least, they are bound to comply with the rules of natural justice. This imports primarily and necessarily that the person accused should know the charges against him and be given an opportunity of answering those charges except where by his conduct the person concerned has waived a statutory provision which is permissive.

The learned trial judge considered the letters Exhibits MOK.18, MOK.19 and MOK.20 and concluded that there had not been given to the present applicant such an opportunity of answering the charges before a decision was made to punish him: He should have been given such an opportunity. See Ridge v. Baldwin 0964) A.C. 40. Without doubt, where this kind of situation is manifest on the face of the records of an inferior tribunal or statutory body, the High Court must and will grant an Order of Certiorari. This is what the judge in the present case had done and we have no reasons to quarrel with either his findings or his decision.

We conclude that all the points raised and argued on behalf of the respondents in this appeal fail and the appeal also fails and it is dismissed. The order of the High Court in Suit No. B/41M/71 is hereby affirmed including the order for costs, and this shall be the judgement of the Court. The applicant will have the costs of this appeal fixed at N200.

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SC.85/73