Lagos State Judicial Service Commission & Anor V. Muusbau Olubankole Kaffo (2007)

LawGlobal-Hub Lead Judgment Report

ADZIRA GANA MSHELIA, J.C.A.

This is an appeal against the judgment of Oyefesobi J. of the High Court of Lagos State delivered on 3/12/02 granting an Order of Certiorari quashing the decision of the 1st Appellant to compulsorily retire the Respondent.

The respondent was employed as a Magistrate by the Lagos State Judicial Service Commission. By a letter reference number JDP/837/58 dated 30th May, 2001 attached to main affidavit as the Exhibit ‘4’ 1st Appellant compulsorily retired the Respondent due to restructuring within the 1st Appellant. Respondent was dissatisfied with his retirement, with the leave of Lagos State High Court initiated Certiorari proceedings before that court, for the purpose of quashing the decision of the 1st Appellant Lagos State Judicial Service Commission for compulsorily retiring the respondent.

The reliefs sought for as contained in the amended statement in support of application dated 6th day of November, 2001 read as follows:-

“i. AN ORDER OF CERTIORARI bringing into this court the proceedings and/or decision of the Lagos State Judicial Service Commission contained in a letter No.JDP/837/58 dated 30th may, 2001 whereby it was decided to retire the Applicant with immediate effect from the Judicial service of Lagos State and quashing same for inter alia being a decision made ultra vires and in complete disregard of the rules of natural Justice and fair hearing.

ii. A Declaration that the purported retirement with (sic) effect of the Applicant from the judicial service of Lagos State by the letter No JDP/837/58 dated 30th May, 2001 by the 1st Respondent is ultra vires, illegal, wrongful, null and void of no effect whatsoever.

iii. A Declaration that the Appellant is still in the Employment of the Lagos State Judicial and/or Lagos State Judicial Service Commission.

iv. AN ORDER directing the 1st Defendant to reinstate the Applicant to his post and/or status as Chief Magistrate Grade 1 in the service of Lagos State without prejudice to salaries, allowances, entitlements and promotions which might have accrued to him during the period of Applicant’s purported compulsory retirement.

v. AN INJUNCTION restraining the 1st Defendant from further interfering with the Plaintiffs performance of his duties as a public officer.”

And the grounds of the reliefs are stated in paragraph 3 of the amended statement as follows:-

a. The Applicant is a public officer in the pensionable cadre of the Lagos State Judicial Service under the pensions laws of Lagos State.

b. The Appointment, dismissal and discipline of the Applicant are governed by the provisions of the 1999 Constitution of the Federal Republic of Nigeria.

c. The Lagos State Judicial Service Commission has not power to retire the Applicant from the judicial service of Lagos State with immediate effect” under the law, particularly the law that established the Commission.

The appellants initially filed a notice of preliminary objection dated 11th January, 2002, challenging the jurisdiction of the court below to entertain the suit as presently constituted. The grounds of the objection are as follows:-

1. The decision to retire the Applicant as contained in the letter No JDP/837/58 dated 30th of May, 2001. is a mere administrative action not subject to prerogative order of certiorari.
2. The Applicant has failed to show that there was proceedings in the nature of hearing where the decision to retire him was taken as there was none.
3. Judicial review is not the proper procedure for an employee to challenge his retirement by an

employer who has not accused him of any misconduct or impropriety.

4. That by reason of the forgoing the present Action for judicial review is incompetent.

The relief sought was an order of dismissal or to strike out the application. Both counsel addressed the court and in a considered Ruling delivered on 13/5/2002 the learned trial Judge had this to say:-

“for the foregoing I hold that the Preliminary objection is misconceived and it is hereby dismissed.”

Appellants who were dissatisfied with the ruling filed notice of appeal dated 23rd May, 2002. The notice contained two grounds of appeal.

In view of the relevance of the grounds of appeal, which would be referred to later in this Judgment I will reproduce same as follows:-

GROUNDS OF APPEAL

“GROUND ONE: That the learned trial Judge erred in law when he held that he had jurisdiction to review the letter reference Number JDP/837/58 by which the applicant was retired from the services of the 1st appellant.

PARTICULARS OF ERRORS

The decision contained in the letter written by the 1st Appellant was an Administrative act which cannot be subject to an order of Certiorari

GROUND TWO:

The Learned Trial Judge erred in law in holding that Judicial review is a proper procedure for the Respondent to challenge his retirement.

PARTICULARS OF ERROR

(1) The relationship between the 1st Appellant and the Respondent was a Master servant relationship which either party was at liberty to determine.

(2) The retirement of the Respondent was not done in a manner which is capable of invoking the supervisory jurisdiction of the Trial court.”

Proceedings went on and appellants who were respondents before the trial court filed their counter-affidavit on 21st day of May, 2002. Both parties filed written submissions before the trial court. At the end of the day, the learned trial Judge delivered his judgment on the 1st day of December, 2002 in favour of the Respondent and granted the Order of Certiorari quashing the decision of the 1st appellant to compulsorily retire the Respondent.

Aggrieved with this decision, appellants filed a notice of appeal dated 31/12/02, containing three grounds of appeal.

I find it necessary for purposes of ease of reference and emphasis to reproduce the grounds of appeal hereunder since the interlocutory and main appeal are taken together. The grounds of appeal without the particulars read thus:-

“GROUNDS OF APPEAL

(1) The learned trial Judge erred in Law when he made an order of Certiorari quashing the decision to compulsorily retire the Plaintiff from the public Service of Lagos State.

(2) The learned trial Judge erred in law when he held that the act of the 1st Defendant in retiring plaintiff violates his constitutional right to fair hearing.

(3) The learned trial Judge erred in law when he held that the act of the 1st Defendant in retiring the plaintiff is ultra vires the power of the 1st defendant and violates the provisions of the Pensions Act.”

In compliance with the relevant rules of this court at the time the appeal was filed, both parties exchanged briefs of argument. Appellants filed its brief on 27th July, 2007, while that of respondent was filed on 21st June, 2006 pursuant to a deeming order obtained on 1st day of November, 2006.

On the 24th day of September, 2007 Mrs. K. Jose Assistant Director Civil Litigation Ministry of Justice Lagos State adopted appellants’ brief of argument. Mr. Akpo similarly adopted respondent’s brief of argument. From the five grounds of appeal filed by appellants contained in the two notices of appeal, three issues were distilled for determination as follows:-

(1) whether the Learned trial Judge was right when he held that the act of the 1st appellant in compulsorily retiring the Respondent was a judicial act which could be quashed by order of Certiorari.

(2) whether the Learned trial Judge was right when he held that the act of the 1st appellant in retiring the respondent violated his Constitutional right to fair hearing.

(3) whether the Learned trial Judge was right when he held that the act of the 1st appellant in retiring the respondent was ultra vires the 1st defendant and violated the provisions of the Pensions Act.

In the brief of argument, appellants did not tie the issues to the grounds of appeal. While adopting the brief appellants’ counsel tied issue No.1 to ground 1 of both notices of appeal as well as ground 2 of the interlocutory appeal reproduced supra. Issue 2 was tied to ground 2 of the main appeal. Similarly issue 3 was tied to ground 3 of the main appeal. The respondent in response to the appellants’ brief, formulated two issues for determination in this appeal. The issues are:-

2.01 whether or not the act of the Respondent is one that can be quashed by an order of Certiorari.

2.02 whether or not the act of the 1st appellant in retiring the Respondent was right having regard to the provisions of the Pensions Act.

Respondent’s counsel did not specifically tie the issues to any ground of appeal. All that he said in the course of hearing the appeal is that the two issues formulated arose from notice of appeal appearing at page 108 – 109 which relates to the main appeal.

In the course of hearing the appeal respondent’s counsel acknowledged the fact that the respondent was served with signed, dated and’ filed notice of appeal. The notice of appeal which Mr. Akpo identified was dated 13/12/02 and filed same date. Although the notice of appeal appearing at pages 108 – 109 of the record bears no date, he said the record should be presumed to be correct since the one served on them is in order.

As earlier indicated there are two notices of appeal involved in this appeal. In the course of hearing the appeal respondent’s counsel had urged us to discountenance the notice of appeal at page 44 of the record but did not give any reason why we should ignore same. The appeal against the interlocutory matter was filed within 14 days as provided for in Section 24(2) of the Court of Appeal Act, Cap C. 36 of the Laws of the Federation, of Nigeria 2004. The ruling sought to be appealed against was delivered on 13/5/02. The notice of appeal appearing at page 44 of the record was dated 23/05/02 and filed same date. The notice of appeal is therefore competent as such it is in order to hear both the interlocutory appeal and the main appeal together while determining this appeal. I place reliance on the Supreme Court case of Owoniboys Tech Services Ltd Vs Union Bank of Nigeria Ltd (2002) 15 NWLR (Pt 844) 545 and also the case of Abiola Vs Olawoye (2006) 13 NWLR (Pt.996) page 1 decided by this court.

Since the issues raised by the appellant covers both the interlocutory and the main appeal I would prefer to adopt same in determining this appeal.

Issue No 1 formulated by appellant is similar to issue No 1 formulated by the respondent. Appellants’ issue No 1 provides:

“whether the learned trial Judge was right when he held that the act of the 1st Appellant in compulsorily retiring the Respondent was a judicial act which would be quashed by order of Certiorari.”

Before I proceed to summarise briefly the submission of counsel, I wish to point out here that the ruling sought to be appealed against as per the notice of appeal dated 23/5/02 was as a result of the notice of preliminary objection filed on 14/02/02 by the appellants challenging the jurisdiction of the court below as constituted to hear the application for judicial review.

The submission of Counsel in respect of this issue therefore covers grounds 1 and 2 of the interlocutory appeal and ground 1 of the main appeal.

Mrs. Jose the Assistant Director of Civil Litigation in her brief of argument contended that the decision contained in the said letter written by the 1st appellant compulsorily retiring the respondent was an administrative act which cannot be subject to an order of Certiorari. Certiorari is a prerogative order issued by a High Court to quash a decision of an inferior Court or Tribunal or Public administrative body which acted judicially or quasi judicially or had a duty to so act. Learned counsel relied on the locus classicus case of R Vs Electricity Commissioners (1924) 1 KB 171 wherein Lord Atkin stated thus:-

“The Prerogative Order of Certiorari will issue whenever any body of Persons having legal authority to determine questions affecting the rights of subjects and having a duty to act judicially act in excess of their authority.”

In a further argument counsel contended that before a court can have the power of judicial review by way of Certiorari the act being complained of must be:

(1) An act of a public body

(2) The body must be one having power to determine the right of subjects

(3) The body must have a duty to act judicially or quasi judicially

(4) The body must have acted in excess of its authority.

Learned counsel submitted that the order is issued so that the court issuing it, may inspect the proceedings of the inferior tribunal or administrative (public) body concerned to determine whether there has been a violation of the applicants right to fair hearing or whether the inferior court acted without jurisdiction or in excess of jurisdiction. Upon inspection, the reviewing court may quash the decision of the inferior tribunal or administrative body if it finds that same was ultra vires or that there was an error on the face of the record of the tribunal or body in respect of the above. See Nwaoboshi Vs Military Administrator Delta State, (2003) 11 NWLR (Pt 831305;

Bamaiyi Vs A G Federation (2000) 6 NWLR (Pt 661) 421 and Agwuegbe Vs Kagoma (2000) 14 NWLR (Pt 687) 252. Although it is not always important to classify the powers of an administrative body, such classification is important with regard to the remedies which a person who feels aggrieved by the exercise of the power or function he is complaining about. Since only the actions which can be brought forward for review by way of Certiorari are actions taken in an adjudicating capacity, acts which are administrative cannot be quashed by Certiorari. See DESMITH’S JUDICIAL REVIEW OF ADMINISTRATIVE ACTION 4TH EDITION PAGE 71. In this case the act complained of is the retirement of an employee (the Respondent) by his master (the 1st appellant).’

Learned counsel contended that just as the matter of appointment of a staff is a mere administrative or executive act, retirement of such staff is also an executive act when the retirement is not done due to or under the disciplinary powers of the employer. The retirement was nothing more than’, an administrative action of the 1st appellant to implement its restructuring policy. See Okakpu Vs Resident Plateau State (1958) NRNLR 5, Ojomo Vs Lt. Governor Western State (1957) FSC 57.

Furthermore, learned counsel contended that the learned trial Judge was wrong when he held that the retirement of the respondent was not an administrative act but a judicial act. The 1st appellant she conceded is a public body which can in appropriate circumstances be subject to certiorari but it is the act being complained of which ought to have been examined in order to see whether or not it is a judicial or quasi judicial act. Counsel contended that the learned trial Judge did not in any way examine the act complained of or show in any way how he arrived at the decision that the act of the 1st appellant was a judicial one. She said although the distinction between a judicial act and a purely administrative act can often be a nebulous one, the court still has a duty to examine the act complained of and show how such an act was one in which the public body was acting judicially or had a duty to act.

In the case of Nwaoboshi Vs Military Administration Delta State (2003) 11 NWLR (pt 83) 305 the Supreme Court relying on the cases of RV District Officer From Kutia People Ex Parte Aten (1961) All NLR 51 at 56 and Amaka Vs Lt Governor Western Region & Anor (1956) SC NLR 122 restated the principle that the order of Certiorari lies only against bodies exercising judicial or quasi Judicial authority and in respect of acts performed by them in that authority. It does not lie against executive or legislative acts. See also Fasade Vs Babalola (2003) 11 NWLR (Pt 830) 26 and Obiyan Vs Governor Western State (1972) 4 SC page 248.

In a further argument, learned counsel contended that Respondent’s counsel had submitted in the court below that orders of certiorari had been issued against similar bodies like the 1st appellant in circumstances of administrative decisions. To buttress this point respondent cited among other cases Adekunle Vs University of Port Harcourt (1991) 3 NWLR 181) 534 and Adedeji Vs Police Service Commission (1967) 1 All NLR 67 which the learned trial Judge accepted. (See page 105 of the record).

Learned counsel submitted that what the Respondent’s counsel however failed to address and on which the learned trial Judge erred is that the issue of whether or not the acts being complained of were administrative or not, on judicial or quasi judicial did not arise in the Adekunle’s case and the other cited cases. These two cases and the other cited cases were cases in which the acts concerned were clearly Judicial acts in which the duty to act judicially by giving the other side a fair hearing was mandatory and was so held by the courts. Counsel contended those authorities cannot be judicial precedent for whether the act of the 1st appellant was a judicial act.

It is submitted further that judicial review by way of certiorari is not an appropriate procedure for the Respondent to employ in challenging his retirement. No proceeding in the nature of a hearing were held against him for any allegation of misconduct or impropriety to warrant judicial review be the court. As an aggrieved servant, it would have been more appropriate for the Respondent to challenge his retirement by way of writ of summons rather than by way of judicial review which is a special procedure similar to the enforcement of Fundamental Human Rights. Learned counsel referred to the case of Dangtoe Vs Civil Service Commission Plateau State (2001) 9 NWLR (Pt 717) 132. In this case the appellant had filed his action for wrongful dismissal under the Fundamental Human Rights Enforcement I Procedure Rules. It was held by the Supreme Court that the procedure used by him was in appropriate, as he ought to have brought an action for tort of wrongful dismissal. See also Sea Trucks Nig Ltd Vs Airigboro (2001) 1 SC part 1 page 45. She said these decisions are apt in the circumstance and urged this court to apply the principles to the present case.

In response Akpo Esq of counsel for the respondent submitted that the 1st appellant that employed the respondent is a creation of the Constitution. The effect of that is that if decision on any matter touching on or concerning the employment created under it must be strictly in line with the statute. The Lagos State Judicial Service Commission was created pursuant to Section 197 of the 1999 Constitution of the Federal Republic of Nigeria. Its powers are spelt out in part II of the schedule to the 1999 Constitution. He relied on the case of Mayor of West minister Vs London & North Western Railway Co. (1905) AC 426 at 430. In that case lord Macnaghten had this to say:-

“It is well settled that a public body invested with statutory powers such as those conferred upon the corporation must take care not to exceed or abuse its powers. It must act in good faith. And it must act reasonably”.

Learned counsel further contended that a corporate entity, which is a creature of statute, cannot do anything unless it is expressly authorized by the law creating it. See also Olaniyan Vs University of Lagos (1985) 2 NWLR (Pt.9) 599 at 623. Learned counsel referred to the letter of compulsory retirement of the respondent. It was contended that Lagos State Judicial Service Commission did not have the power under the constitution to retire the respondent as was done in letter dated 30th May, 2002. Learned counsel submitted that respondent was not given a hearing. The relationship between the respondent and 1st appellant is also based on the provisions of the constitution, therefore the relationship has constitutional force. It is in the category of contractual relationship that is to have statutory flavour. See Bamigboye Vs University of Ilorin (1999) 10 NWLR (Pt.622) 299. Learned counsel also contended that an employee in this category of master and servant – relationship has a special status. He does not hold his employment at the pleasure of the state and he can only be fired in strict compliance with the statute regulating his contract of employment. See Bamgboye Vs University of Ilorin (1999) 10 NWLR (Pt 622) 299; Shita-Bey Vs Federal Civil Service Commission (1987) 1 SC 40 56, 57 – 58; Olaniyan Vs University of Lagos (1985) 2 NWLR (Pt 1-9) 599 at 612-613; Olatunbosun Vs Niser, Council (1988) 3 NWLR (Pt 80) 25 at 41 and FCSC Vs Laoye (1989) 2 NWLR (Pt 106) 652 at 714. Learned counsel contended that since the 1st appellant and the 2nd appellant in attendance having gone outside the enabling law (i.e the constitution) an order of or a reversal by way of review can be sought.

Furthermore learned counsel contended that the fact that respondent could go by way of writ of summons as contended by the appellants does not preclude him from taking the option of judicial review. He referred to order 43 of the High Court of Lagos State (Civil Procedure) Rules, 1994.

Learned counsel contended that an order of certiorari could issue particularly so when it has been shown that there was a proceeding which borders on indictment of the Respondent. See page 37 – 38 of the record which led to the letter of retirement. See page 56 of the record. Respondent was not invited and did not take part in the proceedings contained at pages 37 – 38 of the record.

The issue to be resolved is whether the learned trial Judge rightly held that the act of the 1st appellant in compulsorily retiring the respondent was a judicial act which could be quashed by order of certiorari.

Writ of Certiorari is a writ of common law origin. See R Vs Electricity Commissioners (1924) 1 KB 171 and Ridge Vs Baldwin (1963) 2 All E.R 66.

Certiorari is one of the Prerogative writs whose main function is to ensure that inferior courts or anybody entrusted with the performance of Judicial or quasi judicial functions keep within the limits of the jurisdictions conferred upon them by the statutes which create them. An order of certiorari will therefore lie to remove into the High Court for the purpose of being quashed any judgments, orders, convictions or other proceedings of such inferior courts or other body, civil or criminal made without or in excess of jurisdiction.

The power of judicial review vested in the court below as it relates to this appeal is provided under order 43 of the High Court of Lagos State (Civil Procedure) Rules, 1994.

The order of certiorari is a remedy of a very special character and only lies to quash judicial acts. Certiorari will not lie where the body was not acting in a judicial or quasi judicial capacity. It also does not lie to quash a mere ministerial, administrative or executive acts. See Amaka Vs Lieut Governor – Western Region (1956) SC NLR 122 and Nwaoboshi Vs Military Administrator Delta State (2003) 11 NWLR (Pt 831) 305.

The question now is can the act of the 1st appellant in compulsorily retiring the respondent be classifed as administrative or judicial act?

In answering this question I think the brief background facts of the case needs to be highlighted first. The respondent was offered an appointment as a Magistrate Grade II by the 1st appellant Lagos State Judicial Service Commission, based on terms and conditions contained in a letter Ref No. AM/1/184/17 dated 1st June, 1989. Respondent accepted the offer. His appointment was confirmed vide letter Ref. No. JDP/83/37 on 23rd January, 1992. Subsequently, he was served with a letter no JDP/837/58 dated 30th May, 2001 retiring him from service as Acting Chief Magistrate Grade I in the Public service of Lagos State Government with immediate effect. It is this decision that prompted the respondent to ask the court below to invoke its supervisory jurisdiction in order to quash same by order of certiorari.

It is worthy of note that the decision to compulsorily retire the respondent was taken at a meeting held by the 1st appellant Lagos State Judicial Service Commission on 16th May, 2001.

For ease of reference and emphasis I will reproduce in extenso the retirement letter attached as Exhibit ‘4’ to affidavit in support and extract of minutes of meeting held by 1st appellant hereunder:-

Dated 30th May, 2001

“Mr. M.O.A. Kaffo/Ag

Chief Magistrate Grade I

u.f.s:- the Chief Registrar

High Court of Lagos State

Ikeja.

RETIREMENT FROM SERVICE

Owing to the on-going restructuring exercise of the State Judicial Service, the Judicial Service Commission has approved your retirement from the judicial service of Lagos State with immediate effect.

2. You will be paid your salaries in lieu of notice under the current regulations along with other benefits to which may be entitled.
3. The government appreciates your services and wishes you best of luck in your future endeavours.
4. You are expected to handover all government properties in your possession to the Chief Registrar ,

HOM FOLAMI

Secretary”

The extract of the minutes of meeting also read as follows:-

Date 30th November, 2001

“Lagos State Judicial Service Commission

Our Ref. JSC/1/29/117

M.A.O. Okulaja & Co

The PENT House

Suit 1 22 Norman

Williams Street

South West Ikoyi

Lagos.

RE: SUIT NO M/537/2001

MUSIBAU OLUBANKOLE KAFFO VS

LAGOS STATE JUDICIAL SERVICE COMMISSION & ANOR

I am directed to refer to your letter dated 21st November, 2001 on the above subject matter and to forward to you the extract from the minutes of the meeting of the Lagos State Judicial Service Commission held on Wednesday the 16th May, 2001, pages 6 – 7 that is relevant to the subject matter.

10.0 ANY OTHER MATTER

10.01 RE-ORGANISATION IN THE STATE JUDICIARY

10.02. The Honourable members reviewed the whole spectrum of the magistracy with a view to re-organise and put vigour into the rank of magistracy, the Honourable members of the commission resolve to dispense with the services of the following officers and therefore retired them from service with effect from 1st June, 2001.

(a) Mrs. A. O. Fashanu – Chief Magistrate Grade 1

(b) Mr. T. A. Martins – Chief Magistrate Grade 1

(c) Mr. P. T. Ogbogbo – Chief Magistrate Grade 1

(d) Mrs. J. O. Osinowo – Chief Magistrate Grade II

(e) Mr. O. K. Bajulaiye – Chief Magistrate Grade II

(f) Mrs. A. A. Jaiyesinmi – Chief Magistrate Grade II

(g) Mrs. T. A. Bankole- Williams- Chief Magistrate Grade II

(h) Mr. M. A. O. Kaffo – Chief Magistrate Grade II

(i) Mr. G. Y. Giwa – Chief Magistrate Grade II

(j) Mr. M. T. Abari – Chief Magistrate Grade II

(k) Mr. J. O. O. Umosu – Senior Magistrate Grade I

(1) Mrs. M. A. Agbebi – Senior Magistrate Grade I

(m) Mr. H. J. Fashola – Senior Magistrate Grade I

(n) Mr. M.A. Alebiosu – Senior Magistrate Grade II

(o) Mrs. G.A. Giwa -Anu – Senior Magistrate Grade II

(p) Mrs. M.O. Folami – Senior Magistrate Grade II

(q) Mr. M.A. kassim – Senior Magistrate Grade II

(r) Mrs. P.T. Aeyemi – Senior Magistrate Grade II

(s) Mrs. O.A. Aeipe – Senior Magistrate Grade II

(t) Mr. A.A.H. Olajubutu – Senior Magistrate Grade II

(u) Mrs. G.O. Benjamin – Magistrate Grade II

10.04. The Honourable members directed that all their benefits and entitlements should be paid soonest.

2.0. I think this would satisfy your requirement.

S. O. ODUKOYA

FOR SECRETARY”

From the above stated, facts it is very clear that the nature of relationship that existed between the respondent and the 1st appellant was a contractual relationship. As rightly submitted by appellants’ counsel the act; complained of is the retirement of an employee by his master the 1st appellant.

I have carefully examined the contents of the letter of retirement Exhibit’ 4′ reproduced supra and the extract of minutes of meeting of the 1st appellant. There was no form of inquiry conducted by the 1st appellant as such it cannot be said that the decision taken on 30/5/01 to retire the respondent was a judicial act.

In Regina vs Metropolitan Police Commissioner, ex – Parte Parker (1953) 1 NLR 1150, it was held that an order by the commissioner revoking a licence was not a judicial order although he could only do so “if he is satisfied, by reason of any circumstances arising or coming to his knowledge after the Licence was granted, that the licencee is not a fit person to hold such a licence”.

Also in Amaka Vs Governor Western Region & Anor cited supra by appellants’ counsel the Supreme Court held that the act complained of was ministerial or administrative or executive and not subject to certiorari. The Learned trial Judge appeared to have relied heavily on the cases of Adekunle vs University of Port Harcourt cited supra and Adedeji vs Police Service Commission in coming to the conclusion that certiorari lies to quash the decision of the 1st appellant compulsorily retiring the respondent. The two authorities were cited by the Respondent at the court below in the final address submitted to the court. Appellants’ counsel in her brief of argument took time to distinguish the facts of the two cases at hand. I entirely agree with her line of reasoning. In Adekunle’s case the vice chancellor of University of Port Harcourt had set up an adhoc Committee to look into allegations made against the appellants. The report of that committee was inconclusive as a result of which the committee recommended further investigation by the Security Department of the University. The Court of Appeal held that the decision of the vice chancellor to expel the appellants based on the report of the Security

Department could be quashed by order of certiorari. Clearly the powers being exercised by the vice chancellor in that case were judicial or quasi judicial and was so held by the Court of Appeal.

Similarly, in Adedeji’s case supra the appellant had gone to court to quash the Police Service Commissions decision to dismiss him from the office for misconduct, alleging that the procedure adopted by the commission, was irregular and contrary to natural Justice. The facts of that case were that before its decision, the commission has sent the appellant a brief letter setting out certain offences alleged against him in a written report and requesting him to make representations and the appellant had in a reply three pages long, sought to exculpate himself. The commission heard no oral evidence but the evidence on which it relied against the appellant came to his attention during the High Court proceedings when another Police Officer who had arrested him sworn to lengthy counter-affidavit which materially contradicted the version given by the appellant in his letter to the commission. The Supreme Court held that the Police Service Commission like any other tribunal of its nature, is in the absence of any declaration to the contrary, entitled to decide its own procedure and lay down its rules for the conduct of inquiries regarding discipline and the like, such enquiries must, however, be in accordance with the principles of natural Justice. In this case as rightly submitted by appellants’ counsel, the fact that the Police Service Commission was exercising judicial or quasi judicial act was not in doubt and was never in issue as the action taken against the appellant was done under the commissions disciplinary powers, whereas in the present case, the 1st appellant acted administratively to his attention during the High Court proceedings when another Police Officer who had arrested him sworn to lengthy counter-affidavit which materially contradicted the version given by the appellant in his letter to the commission. The Supreme Court held that the Police Service Commission like any other tribunal of its nature, is in the absence of any declaration to the contrary, entitled to decide its own procedure and lay down its rules for the conduct of inquiries regarding discipline and the like, such enquiries must, however, be in accordance with the principles of natural Justice. In this case as rightly submitted by appellants’ counsel, the fact that the Police Service Commission was exercising judicial or quasi judicial act was not in doubt and was never in issue as the action taken against the appellant was done under the commissions disciplinary powers, whereas in the present case, the 1st appellant acted administratively.

I agree with appellants’ counsel that these two authorities cannot be judicial precedent to say that the act of the 1st appellant was a judicial act. The facts and circumstances of the case at hand are distinguishable from that of the two cases discussed supra. The learned trial Judge was therefore in error to have accepted the decisions in the two authorities cited as bases his decision. In the instant case there was no proceeding in the nature of hearing held against the respondent for any allegation of misconduct or impropriety to entitle the court below invoke its supervisory jurisdiction by way of Judicial Review. The retirement of the respondent according to 1st appellant was due to ongoing restructuring of the organization. Based on the available affidavit evidence the decision of the 1st appellant to retire the respondent cannot be classified as a judicial act but an administrative act.

As rightly submitted by appellants’ counsel the respondent as an aggrieved servant has right to seek redress in court, but the procedure adopted was inappropriate. It would have been more appropriate for him to challenge his compulsory retirement by filing writ of summons rather than by application for judicial review which is a special procedure similar to the enforcement of Fundamental Human Rights. In Dangtoe Vs Civil Service Commission Plateau State cited supra by appellants’ counsel in the brief of argument, the appellant filed his action for wrongful dismissal under the Fundamental Human Rights (Enforcement Procedure) Rules, 1979. The apex court held that the procedure used by him was inappropriate, as he ought to have brought an action for tort of wrongful dismissal. The appeal was struck out. See also Sea Trucks Nig Ltd Vs Anigboro also cited supra. Similarly in Ridge Vs Baldwin (1963) 2 All E.R 66, it was held that a dismissal was void because the principles of natural Justice were not observed. But it is significant that the Plaintiff in that case brought action, and did not apply for an order of certiorari to quash the order of dismissal. It is also worthy of note that in Omo Vs Judicial Service Committee Delta State (2000) FWLR (Pt 20) 676, a Chief Magistrate challenged his retirement by filing writ of summons. He did not apply to quash the decision to retire him by order of certiorari as was done by the respondent in the instant appeal.

All these decisions referred to supra confirmed that respondent ought to have challenged his retirement by filing writ of summons. The reliefs sought are declaratory reliefs and injunction. The points raised by respondent’s counsel in his brief of argument as regards lack of fair hearing or that 1st appellant exceeded the powers given to it under the statute and the fact that the contractual relationship existing between 1st appellant and respondent is one with statutory flavour are points which would have been relevant if respondent had commenced this action by writ of summons. For instance, it is not enough for counsel to allege that right to fair hearing was breached. There must be evidence from the parties as to the circumstance of such breach. As earlier stated there was nothing like inquiry or investigation, conducted by 1st appellant before taking the decision to compulsorily retire the respondent. Having regard to the available facts and

circumstances of the case it is evident that commencing the action by judicial review was inappropriate. Every case must be considered according to its given set of facts and circumstances.

A court is said to be competent when:-

1. It is properly constituted as regards members and qualification of the members of the bench, and no member is disqualified for one reason or another; and
2. The subject-matter of the case is within jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction;
3. The case comes before the court initiated by due process of the law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.

See Madukolu vs Nkemdilim (1962) 2 SCNLR 341 and A.G Anambra Vs A. G the Federation (1993) 6 NWLR (Pt 302) 692.

Where all the three conditions listed above for the exercise of jurisdiction co-exist a court is said to have competence and jurisdiction.

Having regard to the foregoing I am firmly, of the opinion that the court below wrongly assumed jurisdiction to hear and determine the application for Judicial Review. In other words the trial court was not competent to invoke its supervisory jurisdiction under Order 43 of the Lagos State High Court (Civil Procedure) Rules, 1994 to quash the decision of the 1st appellant compulsorily retiring the respondent. Jurisdiction is the lifeline of all trials. A trial without jurisdiction is a nullity. See Petrojessica & Enterprises Ltd Vs Leventis Technical Co. Ltd (1992) 5 NWLR (Pt 244) 675.

Finally, I so hold that the action commenced by Judicial Review was inappropriate having regard to the facts and circumstances of this case.

It is worthy of note that under Order 43 Rule 9(5) of the Lagos State High Court (Civil Procedure) Rules, 1994, the learned trial Judge has discretion in appropriate cases like the one at hand to refuse application for judicial review and order proceedings to continue as if it was begun by writ of summons. However, the trial Judge maintained that the action was properly initiated so he invoked his supervisory Jurisdiction. Respondent did not Cross-Appeal and sought for relief under this provision.

From all what I have said above, I am satisfied that issue No 1 should succeed and is resolved in favour of the appellants. Grounds 1 and 2 of the interlocutory appeal as well as Ground 1 of the main appeal from which issue 1 is raised succeeds and it is allowed.

The determination of issue number one in favour of the appellants terminates the necessity to consider the other issues i.e. issues 2 and 3 as it would only amount to an academic exercise. Their Lordships of the apex court have warned against such exercise in futility.

In the final analysis, I hold that the appeal is meritorious and it succeeds. Both the interlocutory appeal and the main appeal are allowed. The Ruling of Oyefosubi J. of the Lagos State High Court delivered on 13/5/02 and the Judgment delivered on 13/12/02 are hereby set aside.

I make no order for costs.

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Other Citations: (2007)LCN/2544(CA)