Head Of The Federal Military Government Vs Military Governor Mid-western State Of Nigeria (1973)
LawGlobal-Hub Lead Judgment Report
ELIAS, CJN.
In Suit No. B/18m/71 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 July 17, 1969 and he was removed from office with effect from January 20, 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. 2. 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. (3) 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 of the Region 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.” PAGE| 3 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? 2. Is removal from office a judicial or quasi-judicial act for which certiorari will lie? 3. Was the 1st Respondent or Government of the Mid-west 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 ER. 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. PAGE| 4 If this court refuses our application, we hope that in the interest of building the law, leave will be given to us to appeal. We are 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.
2. The learned Chief Justice erred in law by failing to grant leave to the Appellant to bring an application for an order of certiorari.
3. 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.
4. 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 June 13, 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) AC. 40, at pp. 64, 65 and 66, Malloch v. Aberdeen Corporation (1971) 2 All ER 1278, at p. 1294, and Cooper v. Wandsworth Board of Works (1863) 14 CBNS 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 quasi-judicial 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 October 10, 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 quasi-judicial 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 amenable to certiorari proceedings; and he also cited Ex parte Ojo (1962) 1 All NLR 147, at pp. 151, 155, Eshugbayi Eleko v. Officer Administering the Government of Nigeria (1931) AC 662, at p. 670, Ridge v. Baldwin (1964) AC 40, at pp. 66, 67, Pyx Granite Co. Ltd. v. Ministry of Housing and Local Government (1960) AC 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 AC 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 the 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
Other Citation: (1973) LCN/1655(SC)
