Obiyan v. Military Governor, Mid-West & Ors (1972)
LawGlobal-Hub Lead Judgment Report
B. A. COKER, J.S.C.
The proceedings herein are concerned with an order of certiorari sought by the applicant, Ambrose Iguade Obiyan, against the Military Governor and the Attorney-General of the Mid-Western State of Nigeria for the purpose of quashing the order of revocation of his appointment as a member of the Public Service Commission of the Mid-Western State. Apart, however, from the substance of the application, the appeal raises vital issues of procedure which must be considered fully and finally determined by this Court.
The matter was initiated by way of an originating motion, ex-parte, issued on behalf of the applicant and asking for:-
“an order of certiorari to remove into this Honourable Court for the purpose of being quashed the revocation of the appointment of the applicant as a member of the Public Service Commission of MidWestern State of Nigeria, published in Mid-Western State Legal Notice No.2 of 1971.
AND that all necessary and consequential directions be given. AND for such further order or orders as this Honourable Court may deem fit in the circumstances.”
The motion paper is supported by the usual statement which sets out the grounds on which the application is being made and the reliefs sought as follows:-
“(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 application is also supported by an affidavit of the applicant setting out rather copiously the record of his 30 years’ service in the Public Service of Nigeria during which period he enjoyed “a good reputation for responsibility and diligence in the discharge of my personal and official affairs and obligations within and outside the Mid-Western State”. The affidavit also states that at no time was he delinquent in his duties, that he was not unfit and that he was always ready and willing to perform the duties of his office as a member of the Public Service Commission.
The application was heard ex-parte by Begho C.J. (High Court, Benin City). The learned Chief Justice in the course of his judgment extensively considered the provisions of section 61(5) of the Constitution of the Mid-Western State which reads as follows:-
“(5) 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.”
In interpreting this section of the Constitution, the learned Chief Justice directed himself that the matter to be resolved depended upon the following questions:-
“1. Is the 1st respondent or the Government of the Mid-West a body against whom an order of certiorari can be made
- Is removal from office a judicial or quasi-judicial act for which certiorari will lie
- Was the 1st respondent or Government of the Mid-West under an obligation to observe the rules of natural justice”
He then considered a number of legal authorities appertaining to the three questions which he had set himself and concluded that the answer to the first and the second questions must be in the negative and that the third question did not therefore arise for an answer. He eventually refused “leave to apply for an order of certiorari.” It is to be observed that the applicant had asked for an order of certiorari and not for leave so to apply.
This appeal is from that judgment. Standing right on the threshold of the whole matter is the unusually difficult question of the procedure by which an appeal on such a matter could be brought before this Court. Learned counsel for the applicant had filed a notice of appeal in accordance with the provisions of section 31(1) of the Supreme Court Act, 1960, and Order 7, Rule 2 of the Rules of the Supreme Court. At the same time he had filed a fresh application before us asking for:-
“an order:-
(i) for extension of time within which to apply to this Honourable Court for leave to apply for an order of certiorari in terms of the application in paragraph (ii) hereof;
(ii) for an order of certiorari to remove into this Honourable Court for the purpose of being quashed the revocation of the appointment of the applicant as a member of the Public Service Commission of Mid-Western State of Nigeria, published in Mid-Western State Legal Notice No.2 of 1971;
(iii) that all necessary and consequential directions be given; and (iv) such further order or other orders as this Honourable Court may deem fit in the circumstances.”
As the point is novel we had invited the Attorney-General Mid-Western State, as amicus curiae to address us on the matter. He was represented at the hearing by Mr Iyare, the Solicitor-General of the Mid-Western State.
Learned counsel for the applicant submitted that the provisions of Order 7, Rule 2 of the Rules ofthe Supreme Court are not consistent with the nature of the present application which is one for an order of certiorari; because on the assumption that his appeal against the judgment of learned Chief Justice succeeds, the Supreme Court would have to make an order for the order of certiorari to issue; but then the respondent to the application would then have to show cause in the court below; on the other hand, in England an appeal against a refusal of an application for an order of certiorari would be commenced by the filing of a fresh application before the Court of Appeal which, if it grants the order, also hears the case of the respondent thereafter. This, Counsel submits, is in accordance with the provisions of the Rules of the Supreme Court in England; in further support of his argument, learned counsel for the applicant also referred us to the case of Regina v. Industrial Injuries Commissioner, ex-parte Amalgamated Engineering Union [1966] 2 Q.B. 21 where at p. 30 Salmon L.J. observed as follows in the course of his judgment in the Court of Appeal:-
“Formerly if a rule nisi were refused by the Divisional Court and there was a successful appeal to the Court of Appeal, the respondents came to show cause why the rule should not be made absolute to this court and not to the Divisional Court. That practice was obviously convenient because all the relevant material would have been before the Divisional Court at the time of the refusal of the rule nisi. In refusing the rule nisi, the Divisional Court were in effect saying: ‘There is so little in this that it is not necessary to call upon the respondents to show cause.’ The practice also saved the expense of an additional hearing before the Divisional Court prior to an appeal to this court. Exactly the same sort of considerations apply now as then.”
There can be no question that all rights of appeal are statutory and that the statutory right of appeal in respect of civil matters in this country is covered by section 117 of the Constitution of the Federation of Nigeria. Section 117(6)(b) of the Federal Constitution provides as follows:-
“117. (6) Any right of appeal to the Supreme Court from the decisions of the High Court of a territory conferred by this section:-
(b) shall be exercised in accordance with any Acts of Parliament and rules of court for the time being in force in the territory regulating the powers, practice and procedure of the Supreme Court.”
In the same way procedure on appeal is statutory and in order to bring an appeal in the proper form it is essential that the procedure prescribed by the relevant legislation be followed. In this country the procedure for bringing an appeal is set out in section 31(1) of the Supreme Court Act which reads as follows:-
“31. (1) Where a person desires to appeal to the Supreme Court he shall give notice of appeal or notice of his application for leave to appeal in such manner as may be directed by rules of court within the period prescribed by subsection (2) of this section that is applicable to the case.”
It will be observed that section 31(1) of the Supreme Court Act prescribes the giving of “notice … in such manner as may be directed by rules of court” and thus refers one to the provisions of Order 7, rule 2 of the Supreme Court Rules which reads:-
“2. (1) All appeals shall be by way of rehearing and shall be brought by notice (hereinafter called ‘the notice of appeal’) to be filed in the Registry of the Court below which shall set forth the grounds of appeal, shall state whether the whole or part only of the decision of the Court below is complained of (in the latter case specifying such part) and shall state also the exact nature of the relief sought and the names and addresses of all parties directly affected by the appeal, and shall be accompanied by a sufficient number of copies for service on all such parties. It shall also have endorsed on it an address for service. ”
In the case in hand the applicant duly filed a notice of appeal in accordance with the provisions of Order 7, rule 2 stating that he desired to appeal against the judgment of the learned Chief Justice which was delivered on the 26th May, 1971 and his notice of appeal in the form contemplated by Order 7, rule 2 was filed on the day following the judgment, i.e. the 27th May, 1971. It is opportune at this juncture to refer to the relief sought from this Court as set out in the applicant’s notice of appeal filed on the 27th May, 1971 in accordance with the provisions of Order 7, rule 2 of the Rules of this Court.
The relief sought is stated as follows:-
“Relief sought from the Federal Supreme Court of Nigeria: That leave be granted to the applicant to bring an application for an order of certiorari and that the Supreme Court do entertain and determine the application.”
It is evident that where the Court finds after hearing the appeal that a case was indeed made out for the granting of an order of certiorari, this Court would then have to “entertain and determine the application” itself.
It was contended however before us that this procedure was inconsistent with the nature of the application for if we were to make the order sought we would in effect be asking the court below, which had already held that the applicant’s case for the order sought was not made out, to adjudicate on the case of the respondent on the basis that that same case of the applicant was made out. Learned counsel for the applicant then submitted that assistance should be sought in the provisions of Order 7, rule 36 of the Supreme Court Rules which provides as follows:-
“36. Where no other provision is made by these Rules the procedure and practice for the time being in force in the Court of Appeal in England shall apply in so far as it is not inconsistent with these Rules, and the forms in use therein may be used with such adaptations as are necessary.”
We are of course unimpressed with the argument that in respect of the procedure for bringing the appeal recourse must be had to the Rules of the Supreme Court in England. Order 7, rule 2 of our own Rules is designed to cover all civil appeals. It is so worded and the exception in Order 7, rule 36 pertains only to cases “where no other provision is made by these Rules”. Indeed, the procedure by which a fresh application for leave is made to the Court of Appeal in England would be “inconsistent with these Rules”. Order 7, rule 36 does not purport to take out of the ambit of our rules of court a case which is inconsistent with it. What it covers in fact is a case for which no other provision is made in the rules and barring, for the time being, the question as to what form the order or orders of this Court may take after the hearing of the appeal, we think that Order 7, rule 2 as to the form of notice by which an appeal is initiated must apply to all appeals including the present one against a refusal by the High Court to grant leave to apply for an order of certiorari. In dealing with this point we must not overlook the clear provisions of section 8 of the Supreme Court Act which read thus:-
“8. Subject to the provisions of any other enactment the practice and procedure of the Supreme Court shall be in accordance with this Act and rules of court.”
The important effect of this section is that unless the procedure is authorised by the statute or the rules made thereunder, it is not justified by the section. We have seen that section 31(1) of the Supreme Court Act completely leaves the matter of procedure to be dealt with by the rules. The result therefore is that unless the procedure proposed is authorised by the rules, the appeal could not be properly before the Court.
During the argument reference was made both by learned counsel for the applicant and by the learned Solicitor-General, Mid-Western State, to the provisions of the Administration of Justice (Crown Proceedings) Law, 1959 of the then Western Region which is applicable in the MidWestern State. The legislation is entitled “A Law to make provision with respect to the Prerogative Writs of Mandamus, Prohibition and Certiorari and with respect to proceedings by way of Quo Warranto” and section 5 of the Law prescribes as follows:-
“5. (1) Rules of court may be made under section 55 of the High Court Law, 1954:-
(a) prescribing the procedure in cases where an order of mandamus, prohibition or certiorari is sought, or proceedings are taken for an injunction under the last foregoing section;
(b) requiring, except in such cases as may be specified in the rules, that leave shall be obtained before an application is made for any such order or before any such proceedings are commenced;
(c) requiring that, where leave is so obtained, no relief shall be granted and no ground relied upon, except with the leave of the court, other than the relief and grounds specified when the application for leave was made.
(2) Until rules of court are made by virtue of the provisions of subsection (1) of this section, the procedure for the time being applicable in the High Court of Justice in England in relation to the matters specified in that subsection shall apply in the High Court of the Region with such adaptations as are necessary for the circumstances of the Region.”
We have considered these provisions and we have come to the conclusions that they are not relevant to the matters which at present are being decided by us in connection with the applicant’s appeal procedure herein. The statute as well as “the procedure for the time being applicable” under English law are stated expressly in the Administration of Justice (Crown Proceedings) Law, 1959 as being applicable only within the Region (or State) concerned and clearly could not have been legislation governing procedure in this Court.
We must now advert to the form of the order which this Court should make after hearing this appeal. We have already referred to the relief sought in this Court which, under our Rules, must be set out on the notice of appeal. It has been urged upon us that following the English practice, as judicially interpreted in the case of Regina v. Industrial Injuries Commissioner, supra, [1966] 2 Q.B. 21 and undoubtedly a number of other English cases of the like, this Court should hear the fresh application under the English rules itself and make any consequential order or orders thereon. We are not satisfied that this argument is sound, especially in view of the observation which we have already made in this judgment. Besides this, the argument clearly has overlooked the wide provisions of section 22 of the Supreme Court Act. That section gives very wide powers to this court in respect of matters brought before it and after setting out a number of powers provides that this Court “may make an interim order or grant any injunction which the court below is authorised to make or grant and may direct any necessary enquiries or accounts to be made or taken and generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted and prosecuted in the Supreme Court as a court of first instance and rehear the case in whole or in part…. ”
We are firmly of the view therefore that the provisions of this section adequately cover the relief being sought by the applicant in this case in accordance with our Rules and that in consequence of this there was no need for any recourse to the English rules.
In the end we conclude that the motion filed by the applicant and dated the 31st July, 1971, is inappropriate and is not properly before this Court. It is therefore struck out.
We also direct that the appeal filed by the applicant by virtue of his notice of appeal, dated the 27th May, 1971, is in order for the purpose of bringing before this Court the appeal of the appellant in this matter and this Court shall proceed to hear and determine the appeal thereon on a date to be fixed.
SC.173/71
