Sikiru Adewunmi Bakare Vs Lagos State Civil Service Commission (1992)

LawGlobal-Hub Lead Judgment Report

OGUNDARE, J.S.C. 

By his amended writ of summons the Plaintiff claimed in the High Court of Lagos State from the Defendants as follows: 1. (i) A declaration that the First Defendant had unjustifiably repudiated the contract of service entered into (by) the plaintiff in or about 1973 by wrong fully refusing to pay to the plaintiff his salaries, allowances and other entitlements since 1st February, 1982 to date.

(ii) The sum of N500,000.00 being damages for wrongful dismissal,

(iii) In the alternative to l(i) and (ii) above,

(a) a declaration that the contract of service between the plaintiff and the 1st defendant entered into in or about 1973 still subsists.

(b) an order for payment of arrears of salary and all other entitlements due from the 1st defendant to the plaintiff from 1st February, 1982 until the date of judgment.

(iv) the sum of N25,000.00 being general and aggravated damages suffered by the plaintiff as a result of the first Defendant’s deliberate and malicious stoppage of the plaintiff’s salary as aforesaid.

2. The Plaintiff’s claim against the 2nd Defendant is for:

(i) the sum of N25,000.00 being damages for wrongfully and maliciously inducing the 1st Defendant to breach its obligations under the contract of employment between the plaintiff and the 1st Defendant.

(ii) the sum of N50,000.00 being damages for libel contained in a letter Ref. No. SMB/CON/PF/206/35 dated 11th June, 1982 written by the 2nd Defendant to Mr. O.J. Idigbe, of Chief Rotimi Williams’ Chambers, the Plaintiff’s former Solicitors.

3. The Plaintiff claims the sum of N100,000.00 jointly and severally from the Defendants, being exemplary damages for oppressive, arbitrary and unconstitutional acts against the plaintiff by the Defendants, their servants or agents.”

Parties filed and exchanged their pleadings. Both, with leave of the trial court, filed and exchanged amended pleadings. Thereafter the action proceeded to trial at the conclusion of which, and after arguments by learned counsel for the parties, the learned trial Judge dismissed Plaintiff’s claims except claim 2(ii) in respect of which he awarded N5,000.00 damages against the 2nd Defendant. Being dissatisfied with this judgment, the Plaintiff appealed to the Court of Appeal (Lagos Division) against that part of the judgment dismissing his claims. The 2nd Defendant did not appeal against the part of the judgment damnifying it in damages for libel. That Court, after hearing the appeal, dismissed it. It is against that dismissal of his appeal that the Plaintiff has, with leave of this Court, further appealed to this Court upon the following 4 Grounds of Appeal:

“1. The learned Justices of the Court of Appeal erred and misdirected themselves in law and on the facts when they held that under Rule 04502 of the Lagos State Civil Service Rules and Regulation 51 of the Lagos State Civil Service Commission Regulations, 1980, the appellant was automatically dismissed from the service of the 1st respondent.

Particulars of error and misdiscretion

(i) the provisions of Rule 04502 and Regulation 51 aforesaid in so far as they provide for automatic dismissal without hearing, are in violation of the appellant’s right to fair hearing under S.33 of the Constitution of Federal Republic of Nigeria, 1979 and are therefore unconstitutional. null, void and of no effect.

(ii) the provisions of the said Rule 04502 and Regulation 51 are self-contradictory in that they provide for automatic dismissal on one hand an on the other hand, gave the discretion whether to dismiss or not.

(iii) It was not the case of the respondents on their pleadings or in their evidence in Court that the appellant had at any time been dismissed from the service of the first respondent.

(iv) the facts of the case of Falomo v. Lagos State Public Service Commission which Justices of Court of Appeal relied on can be distinguished from the facts of the present cause and in any case has been impliedly overruled by s.35 (sic) of the 1979 Constitution.

2. The learned Justices of the Court of Appeal erred in law in failing to hold that even if the interpretation of automatic dismissal given to Rule 04502 of the State Civil Service rules and Regulation 51 of the Lagos State Civil Service Commission Regulations is correct, the respondents have waived their rights under these rules.

Particulars of error.

(i) in the letter the respondents wrote to the appellant’s solicitors, they asserted that the appellant was still in their service.

(ii) in their pleadings, the respondents only pleaded that the appellant was ‘liable’ to summary dismissal but never said that he had been dismissed.

(iii) even as late as August 1983, the respondents sent a query to the appellant asking him to show cause why he should not be dismissed.

(iv) during the trial, the respondents gave evidence to effect that the appellant was still in their employment.

3. The learned Justices of the Court of Appeal erred in law and on the facts when they refused to hold that the learned trial Judge misdirected himself in law and on the facts when he held as follows:

‘Even if the allegations were true, all the plaintiff was expected to do was to report to his immediate senior officer, the Executive Secretary of the Board. This he did orally and in writing and having done so, he was expected to have been satisfied that he has done his duty not only as good citizen, going further to write petitions to the Governor and the Code of Conduct Bureau on the same matter, it would appear that he has displayed extraordinary zeal to his own detriment….

He said that as a result, he became demoralized and suffered mental anguish, injury and depression. This is not a desirable situation. But looking at the evidence before me, it seems the plaintiff himself has created the unpleasant situation in which he found himself.

Particulars of misdirection

(i) the appellant, as a senior and honest civil servant, was under a legal duty to expose a fraud within his department it was in pursuance of that duty that he wrote t he petitions to the Governor and the Code of Conduct Bureau.

(ii) the appellant is entitled to protection under and (sic) 36 of the Constitution of the Federal Republic of Nigeria, 1979 from victimization for his convictions.

4. the learned Justices of the Court of Appeal erred in law and on facts when they rejected the appellant’s contention that the learned trial Judge was wrong to have permitted the respondents to amend their pleadings after the close of the appellant’s case.

Particulars of error

(i) the amendment was granted in respect of facts that were material to the case and were available before the trial begun (sic) and which therefore, ought to have been pleaded.

(ii) the appellant in his evidence at the trial court was not cross-examined on those facts relating to the amendment which the respondent knew or ought to have known were essential to their case.

(iii) amendment was granted at a late stage of trial i.e. after the plaintiff had closed his case,”

On the appeal being entered in this court and pursuant to the Rules of the Court the parties filed and exchanged their written briefs of argument.

In the Appellant’s brief the following issues are set out as calling for determination, to wit:

“(a) Whether Rule 04502 of the Lagos State Civil Service Rules and Regulation 51 of the Lagos State Civil Service Commission Regulations, in so far as they provide for the dismissal of an officer without prior hearing, are in violation of the appellant’s constitutional right to a fair hearing, and are therefore to that extent null and void

(b) Whether on the pleadings and the evidence before the trial court, the said Rule 04502 and Regulation 51 were applicable to the appellant’s case

(c) Whether on the pleadings and the evidence before the trial court, the respondents had waived their right to dismiss the appellant under Rule 04502 and Regulation 51

(d) Whether the appellant was entitled to protection from the court in so far as the events which led to his purported dismissal arose from his crusade to expose fraud within his department

(e) Whether the trial court was right to have permitted the respondents to amend their pleadings after the close of the appellant’s case

(f) Whether the case of Falomo v. Lagos State Public Service Commission was correctly decided and if not, whether it should be expressly overruled by the Supreme Court”

The Respondents in their own brief accepted the questions posed in a, b, c, e and f above but contended that the question raised in (d) did not arise as that issue was not raised in the Court below; this Court is urged to strike out issue (d).

Before going further with this judgment, it is pertinent at this stage to state the facts how-be-it briefly: The Plaintiff was appointed by the 1st Defendant in 1973 into the civil service of Lagos State as a Senior Education Officer. He was promoted in 1978 to the post of Assistant Chief Inspector of Education in the Ministry of Education. In April, 1980, he was deployed to the 2nd Defendant as Assistant Chief Inspector of Education and to serve “as the head of the services and Maintenance Department of the 2nd Defendant. It would appear from the pleadings and the evidence that the plaintiff did not have a pleasant time in the services of the 2nd Defendant as, shortly after his resumption of duty with the 2nd Defendant, he fell foul of members of the Supply and Maintenance Committee of the 2nd Defendant over allegations by him of irregularities in the award of contracts by the said Committee.

He wrote petitions in respect of these alleged irregularities not only to the Executive Secretary of the 2nd Defendant but also to the Governor of Lagos State and subsequently, the Code of Conduct Bureau. By letter Reference No. LED/SMB/PS/T/108 of 17th December, 1980, the Plaintiff was deployed to Muslim College Egbe in Lagos State as Principal of that school. The plaintiff denied receiving that letter but the learned trial Judge found, on the evidence before him that he did. The Plaintiff failed or refused the posting and did not resume at the Muslim College Egbe. In February, 1982, on being satisfied that the plaintiff had not been working for either defendant, the 1st Defendant stopped payment of his salaries. Before this time, however, the Permanent Secretary in the Ministry of Health, by letter forwarded to the Plaintiff through the Executive Secretary of the 2nd Defendant, the original of which was delivered to the Plaintiff at his residence, he (the Plaintiff) was requested to appear before a Medical Board for examination pursuant to the Civil Service Rules of Lagos State. The plaintiff failed to appear before the Board on the appointed date or any date thereafter. Rather the Plaintiff engaged the services of the Chambers of Chief F.R.A. Williams, SAN to take up the issue of the stoppage of his salaries with the 2nd Defendant. The Chambers wrote a letter to the 2nd Defendant on 1st June. 1982 when the salary had been in arrears for 4 months, that is, February to May 1982, (both months inclusive) complaining about stoppage of Plaintiff’s salary. The 2nd Defendant sent a reply to the Plaintiffs solicitors. It is the contents of this reply that led the plaintiff to claim for damages for libel. In August 1983 a query was sent by registered post to the residential address of the plaintiff but the plaintiff failed to reply to the said query. Rather he issued the writ leading to the present proceedings in October, 1983. I may mention that the plaintiff was at all times relevant to this case a category 2 officer as defined in Regulation 2(2) and Rule 01003.

I shall begin by selling out the sections of the 1963 and 1979 Constitutions. Rule and Regulation that are relevant to this appeal:

(1) Section 33(1) and (2) of the Constitution of the Federal Republic of Nigeria 1979

(1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.

(2) Without prejudice to the foregoing provisions of this section, a law shall not be invalidated by reason only that it confers on any government or authority power to determine questions arising in the administration of a law that affects or may affect the civil rights and obligations of any person if such law –

(a) provides for an opportunity for the person whose rights and obligations may be affected to make representations to the administering authority before that authority makes the decision affecting that person;

(b) contains no provision making the determination of the administering authority final and conclusive.”

(2) Regulation 51 of the Lagos State Civil Service Commission Regulations 1980

(1) Without prejudice to the power to institute disciplinary proceedings in respect of any absence from duty without leave or reasonable cause, the disciplinary authority may dismiss him without following the procedure prescribed in Regulation 54 or 58. (Italics is mine)

(2) A civil servant shall be considered and treated for all purposes as having been dismissed from the State Civil Service by the very date of his having committed any of the following acts or omissions;

(a) absenting himself from duty without leave or reasonable cause and in circumstances evincing an intention on his part no longer to continue in the State Civil Service; or

(b) resigning or purporting to resign his appointment without having first given due notice and serving for the period of the notice of such resignation or else paying one month salary in lieu thereof in accordance with the provisions applicable in the civil service in that behalf Provided that if the civil servant concerned can later satisfy the disciplinary authority and the circumstances of having committed any of the acts or omissions aforesaid do not justify his dismissal from the State Civil Service the disciplinary authority may, without prejudice to the power to institute disciplinary proceedings in respect of such acts or omissions and with a view to a lesser punishment than dismissal being imposed revoke the dismissal.”

(3) Rule 04502 of the Lagos Slate Civil Service Rules, 1982

“(a) Without prejudice to the power to institute disciplinary proceedings in respect of any absence from duty without leave or reasonable cause, where an officer is absent from duty without leave or reasonable cause, the disciplinary authority may dismiss him without following the procedure prescribed in Rule 04508 or 04511. (Italics is mine)

(b) An officer shall be considered and treated for all purposes as having been dismissed from State Civil Service by the very fact, and from the very date of his having committed any of the following sets of omissions:

(i) absenting himself from duty without leave or reasonable cause and in circumstances evincing an intention on his part no longer to continue in the State Civil Service; or

(ii) resigning or purporting to resign his appointment without having first given due notice, and serving for the period of the notice, of such resignation or else paying in lieu thereof in accordance with the provisions applicable in the State Civil Service in that behalf Provided that if the officer concerned can later satisfy the disciplinary authority that the circumstances of his having committed any of the acts or omissions aforementioned do not justify his dismissal from the State Civil Service, the disciplinary authority may without prejudice to the power to institute disciplinary proceedings in respect of such acts or omissions and with a view to a lesser punishment than dismissal being imposed revoke the dismissal.”

(4) Section 22(1) of the Constitution of the Federation, 1963

In the determination of his civil rights and obligations a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality:

Provided that nothing in this subsection shall invalidate any law by reason only that it confers on any person or authority power to determine –

(a) questions arising in the administration of any law that affect or may affect the civil rights and obligations of any person: or

(b) chieftaincy questions.”

Questions (a) and (f):

Mr. Oyewole, learned counsel for the Appellant, in his written brief, urges that this Court, when considering the fundamental rights provisions of the Constitution, should apply a broad interpretation. He observes that both Regulation 51 and Rule 04502, empower a disciplinary authority to dismiss an affected officer on ground of misconduct mentioned therein without following the proper procedure.

Learned counsel also observes rather erroneously though, that Regulation 51, in particular, does not contain the proviso which allows an affected officer to make representations to the disciplinary authority after his dismissal and upon which representations the disciplinary authority may decide to rescind the dismissal. Learned counsel then submits that, under section 33(2) of the 1979 Constitution, an officer must be allowed to make representations before a decision is taken to dismiss him and as Regulation 51 and Rule 04502 provide otherwise, they are both null and void. He submits further that both the Regulation and the Rule provide for automatic dismissal of an officer without any hearing and without any positive decision or action on the part of any person or authority. He submits that the provisions are void, firstly for uncertainty and secondly, as being in clear violation of section 33(1) of the Constitution. Concluding his arguments on this question, learned counsel submits in his brief as follows:

“4.09 With regard to the issue of uncertainty, it is provided that the officer shall be treated as having been dismissed from the very date of his having committed one of certain acts or omissions. The question is who determines whether, as a question of fact, the offending acts have been committed Is it the disciplinary authority or is it any individual officer with an axe to grind against a fellow worker, or is it (as in this case) a court of trial after the purported dismissal has been challenged” If, as would seem to be the most obvious answer, it is the disciplinary authority that would immediately raise the issue of whether that authority must afford the accused officer a right to make representations before it makes a finding whether he was indeed absent from duty or not. In that case, surely the dismissal cannot be said to be automatic.

4.10 Flowing from the last paragraph, it is abundantly clear that before the disciplinary authority can validly reach a decision that an officer has violated Regulation 51(2) or Rule 04502(b). e.g. by being absent from duty without official leave, it must first afford him the opportunity 10 make representations in reply to the allegation. Accordingly, Regulation 51(2) and Rule 04502 are in clear violation of sections 33(1) and (2) of the Constitution and are accordingly null and void.

In the premises, it is submitted that the first issue for determination must be answered in the affirmative and on that ground alone, this appeal should be allowed.”

Mr. Oyewole urges us to overrule our decision in Falomo L Lagos Stare Public Service Commission (1977) 11 NSCC 230 (1977) 5 SC. 51.

Mrs. Okuwobi for the Respondent. in her own written brief which she adopted at the hearing of this appeal, submits that Regulation 51 and Rule 04502 confirm with the decision of this Court in Falomo v. Lagos Stare Public Service Commission (supra) and as such she urges us to hold that the Regulation and the Rule are valid and in conformity with the rule of natural justice JSC to fair hearing and section 33(2) of the 1979 Constitution. She urges us to abide by our decision in Falomo v. Lagos State Public Service Commission.

Section 33(1) of the Constitution is a restatement of the rule of natural justice that requires that in the resolution of any dispute the parties be accorded a fair hearing. It is a rule which every civilized jurisdiction accepts as a sine-qua-non to a proper and fair adjudication. This rule has as its twin pillars the legal maxims (a) audi alteram partem, and (b) nemo judex in causa sua. We are in this appeal concerned with the first of the two pillars. The necessity for the due observance of these two pillars of justice has been emphasised in numerous cases that their application for the validity of any adjudication can no longer be called in question.

I refer in this regard to such cases as Olaniyan v. University of Lagos (1985) 2 NWLR (PI. 9) 599; State Civil Service Commission & Anor. v. Buzughe (1984) 7 S.C.19: Federal Civil Service Commission & Ors. v. Laoye (1989) 2 NWLR (Pt.106) 652; Olalllnbosnn v. NISER Council (1988) 3 NWLR (Pt.80) 25, (1988) 1 NSCC 1025; Shitta-Bey v. Federal Public Service Can/mission (1981) 1 S.C. 40 and Falomo v. Lagos Stale Public Service Commission (supra), to mention a few.

Any adjudication that does not accord with the audi alleram partem rule is but a sham. The issue. before us, is not whether in the dismissal of a civil servant for misconduct there must be observance of the rule of natural justice as to fair hearing as enjoined by section 33( I) of the 1979 Constitution, but whether Regulation 51 of the Lagos State Civil Service Commission Regulations 1980 and Rule 04502 of the Lagos State Civil Service Rules, 1982 (both of which govern the terms of contract of employment of the plaintiff with the 1st defendant) are in conflict with section 33(1).

Learned counsel for the Appellant has called on us to rule that in so far as Regulation 51 and Rule 04502 provide for dismissal before hearing they violate section 33(1) of the 1979 Constitution and are consequently void. Both the Regulation and Rule give the disciplinary authority power to dismiss an affected officer without first complying with the procedure as to a hearing laid down in Regulation 54(2) and Rule 04508. One may be tempted for this reason to hold that the Regulation and Rule conflict with section 33(1), of the 1979 Constitution. But each of them. by its further provisions, allows for a review of the decision to dismiss at the instance of the affected officer and after a hearing has been given to him. Thus, the dismissal without a hearing is not final; the affected officer’s case can still be reopened and a hearing given to him. At the reopening of his case, his dismissal may be revoked if the evidence available at the hearing so justifies.

Regulation 51 is in pari materia with Regulation 52 of the Lagos State Public Service Commission Regulations. 1968 which came for consideration by this Court in Falomo v. Lagos State Public Service Commission (supra). In that case, plaintiff had been dismissed, without a hearing for absenting himself from duty without leave or any cause. He challenged his dismissal in the High Court but failed. On appeal to this Court, Idigbe, J.S.C., delivering the Judgment of the Court observed at pages 235 – 236 of the Report:

“In the realm of administrative law it is settled by a long line of cases that two cardinal principles – namely, that two person shall be condemned unheard and that none shall be a Judge in his own case – are implicit in the concept of fair adjudication by any authority which has any duty to act judicially. In recent times, however, the courts exercising supervisory authority have taken the view that it is no longer necessary, in order to establish that a duty to act judicially applies to performance of a particular exercise by an administrative body, person or tribunal, to show that the exercise is essentially or analytically of a judicial character. See Lord Reid in Ridge v. Baldwin (1964) A.C.40 at 75 – 76. or that it involves the determination of a lis inter partes. It is enough if it (i.e. the administrative body) is exercising judicial functions in the sense that it has to decide on the materials before it between an allegation and defence ….. The modern concept is that the duty placed on such a body is to act fairly in all such cases. No labels such as ‘judicially’ or ‘quasi-judicially’ are (any longer) necessary as they tend to confuse See Athanasius Kalada Hart v. The Military Governor Rivers State and Ors. (1976) 11 S.C. 211 at 238. But such a duty on the part of an administrative body to act judicially or fairly – in the sense of applying the principle of audi alteram – may be excluded, expressly or by necessary implication, by statute.

Where, however, statutory provisions exclude the need for prior hearing of the party whose rights are to be affected by the decision of an administrative body, the courts have in such cases held that if, in addition, the statute contains provisions for an administrative appeal from, or judicial review on the merits of the decision of that body these are sufficient to negative the existence of any implied duty on the part of such a body (i.e. administrative body) to apply the audi alteram partem rule before the original decision is made.”

The learned Judge, after referring to a number of authorities went on to say at pages 240 – 241;

“As already indicated, it is clear from a close examination of Regulation 52 aforesaid that the statute invests the “disciplinary authority’ (i.e. the Commission) with the discretionary powers to either initiate proceedings under Regulations 55 and 58 of the said Edict in cases where it receives a complaint relating to a public officer who absents himself or herself from duty without leave or reasonable cause OR ignore the provisions of the said Regulations i.e. 55 or 58. and dismiss the officer forthwith if satisfied that the complaint is valid. There is, of course, need for investing the Commission with discretion. The raison d’etre for this provision is not far to seek. If, of course, an officer who absents himself from duty without leave or reasonable cause can be found, or does not obstruct efforts by his superiors to get him. to explain or justify his behaviour and his explanations are considered unsatisfactory by his superior officers then, upon a report made to the Commission, that body may (and quite often should). pursue the course provided by Regulations 55 and 58 aforesaid before taking a decision on the issue. If, however, the officer absenting himself from duty without leave either (as in the instant case) cannot be found to be queried or invited for his explanation (if any) by his superior officer or again, as in the instant case), refuse to sign for documents either querying or inviting explanation for his behaviour, it will, of course, be absurd to expect the disciplinary authority, in those circumstances, to embark upon a futile exercise under the provisions of Regulations 55 and 58 aforesaid. The above. it seems to us., together constitute the raison d’etre for the specific provision in the Regulations for and the special treatment of misconduct by absence without cause from duty. Hence, the existence of the ‘peculiar’ course to be adopted by the Commission with respect of public officers who absent themselves from duty without leave or reasonable cause. Under the Regulation aforesaid (i.e. 52) the Legislature has invested in the Commission the discretion either to apply the audi alteram rule of the principle of natural justice prior to its decision (and it is expected that the membership of the Commission being reasonable will always pursue this course wherever and whenever possible) or, in appropriate cases (such as the case in hand, where the offending public servant is not only unreasonable in his behaviour but also cannot be found), to take a decision, on a complaint before it – provided the grounds for taking such a course abound in the said complaint from the appropriate quarter, without first giving the officer concerned a hearing. The need for the application of the audi alteram rule is amply taken care of in the said Regulation for it affords the public officer concerned the chance, of a hearing subsequent to the decision of the disciplinary authority if the public officer affected eventually seeks one. A review, of the order by the body making it, such as is provided for under proviso to the said Regulation is a “judicial one’ As was stated by Lucas. J.:

‘I can see nothing in the procedure laid down by the Act which departs from the principles of natural justice. In deciding to issue a Prohibitory Order that the Board may be acting in quasi-judicial or in a ministerial capacity: in whichever of the two capacity it is acting, the actual making and promulgation or the order is an Administrative act. Thus the prescribed course of procedure provides for an administrative act followed by a judicial hearing if an applicant seeks one. Such a procedure constitutes in my opinion a sufficient compliance with the principles of natural justice…..’

[See Lucas J. In Erparre H.M.H. Publishing Company Inc. (1964 Queensland Reports) 261 at 289.

On a close examination of the proviso to Regulation 52 it is clear that upon the exercise of his right thereunder by the public officer affected the Commission must give him a hearing and depending on the quality of his explanations it may go further and institute proceedings (even at that late stage) under the provisions of Regulalion55 and 58 and even REVOKE the order of dismissal and not merely impose lesser penalty or punishment. This is because even at that late stage the Commission, in the words or the Regulation, may without prejudice to the power to institute disciplinary proceedings in respect of the absence with a view to a lesser punishment than dismissal. REVOKE the dismissal. At such subsequent inquiry the officer affected, by virtue of the provisions of Regulations 55 and 58, will be at liberty to all witnesses, examine documents which were placed at the disposal of the Commission and cross-examine witnesses, if any, who testified and may still testify against him.”

The validity of Regulation 52 was upheld as not infringing the rule of natural justice that a man be not condemned unheard.

Mr. Oyewole calls on us to overrule Falomo v. Lagos State Public Service Commission. In paragraph 4.04 of his brief, he has Stated thus:

“4.04 We would respectfully draw the court’s attention to the following points:

(a) The present rules differ from those considered by the Court in Falomo’s case. The old Regulation 52 is now Regulation 51 (1), while Regulation 51 (2) is new.

(b) The new Regulation 51 does not contain the proviso to the old Regulation 52, but Rule 04502 contains the proviso.

(c) In Falomo’s case, the constitutionality of the old Regulation 52 was not challenged and the action was based on the common law rules of natural justice.

(d) In Falomo’s case, the LSPSC expressly dismissed Dr. Falomo; in this case, the appellant was never expressly dismissed.

(e) Dr. Falomo’s case was decided when the provisions of the 1963 Constitution were in force; there are significant difference between 22(1) of the 1963 Constitution (which was the relevant section) and sections 33(1) & (2) of the J 979 Constitution,”

But in paragraphs 4.22 10 4.26 of the brief he argues:

“4.22 The Court of Appeal relied heavily on the decision of this Court in Falomo v. Lagos State Public Service Commission (1977) 11 NSCC 230, (1977) 5 S.C. 51, in holding that Regulation 51 and Rule 04502 were not unconstitutional. We have sought earlier in this brief to distinguish Falomo’s case from this case and to argue that Falomo’s case is not a binding authority on the validity or the said Rules under the 1979 Constitution. However, in addition to and as an alterl1ative, we shall also ask the Court to expressly overrule Falomo’s case for the following reasons:

(a) the constitutionality of the former Regulation 52 under section 22 of the 1963 Constitution which was then in force was neither canvassed before, nor considered by, the Court, but rather, was based on the common law principles of natural justice;

(b) even on the basis of common law, the decision was wrong as the common law principles were incorrectly stated or applied; in particular, the decision of Lord Denning MR In Edwards v. Sogat (1970) 3 All ER 689 was not cited to, or considered by the Court.

(c) even if the common law principles were correctly stated by the Court in Falomo’s case, they were inapplicable in Nigeria in so far as the exceptions to the rules of natural justice which were applied by the Court were based on the English doctrine of the Supremacy of Parliament, which conflicts with the Nigerian Constitutional structure.

4.23 The difference between s.22(1) of the 1963 Constitution and S.33(1) & (2) of the 1979 Constitution have already been noted and need not be repeated. It is, however, our submission that even under the 1963 Constitution, the words ‘fair hearing’ are broad enough (to) render the old Regulation 52 (now 51) void. Fair hearing implies that there must be a hearing before one can consider whether it is fair. The proviso only states that a law shall not be invalidated merely by reason that it confers on any person or authority the power to determine question arising in the administration of a law. It is submitted that the proviso was directed towards the issue of the Constitution of a “Tribunal.” It does not in any way abridge the requirements of fair hearing and in particular does not authorise an administrative tribunal to reach a decision without granting a hearing to the party to be affected. Accordingly, it is submitted that the old Regulation 52 was void under the 1963 Constitution.

4.24 The Court in Falomo’s case also relied heavily on two English cases:

(a) Cooper v. Wandsworth District Board of Works (1863) 14 CB (NS) 180:

(b) Vestry if St. James v. Feary (1890) 24 Q.B.D. 703;

Which laid down the principle that where the express words of a statute or law show clearly that it was intended that a tribunal could take a decision without hearing a party, then the rule ‘audi alteram partem would be excluded, Apart from the fact that this exception to the rules of natural justice flows directly from the doctrine of the Supremacy of Parliament, this conflicts with the case of Edwards v. Sogat (1970) 3 All ER 689, 696 which was neither cited to nor considered by the Court. In that case, the rules of a trade union provided that a member would automatically lose his membership if he was in arrears of membership dues for six weeks. The rules further provided that a member who lost his membership as a result of the automatic forfeiture provisions could reapply for membership, The English Court of Appeal held that the rule was ultra vires, null and void, It is submitted that this case was on all fours with Falomo’s case and ought to have been followed, in preference to the cases cited and relied on by the Court.

4.25 When considering the English cases on constitutional and administrative law. it is necessary to bear in mind the English doctrine of the Supremacy (or Sovereignty) of Parliament which states that Ole courts cannot challenge the validity of an Act of Parliament and their sole function is to apply the Acts. See Lee v. Bude and Torrington Junction Rly (1871) LR 6 CP at P.582. This doctrine arose out of the political and constitutional arrangements of the UK and is one of the reasons it does not have a written constitulion.1t may be noted that this doctrine was not always applicable in England and that up to the seventeenth century, i.e. before Cromwell’s revolution, the English courts had the power to strike down statutes which they held to be contrary to equity or the common law,

(b) Day v. Savage (1614) Hob 87

In the latter case, it was held that;

An Act of Parliament made against natural equity, as to make a man Judge in his own case, is void in itself’

In Nigeria, we operate under written constitution, and any statute which conflicts with any of the provisions of the constitution is void. Accordingly, while a statute in the UK may validly exclude the application of the rules of natural justice, no statute can be validly passed in Nigeria which violates those rules. (For this purpose we may ignore the aberration of military rule).

4.26 In the circumstances, it is submitted that Falomo’s case was wrongly decided and should he expressly overruled,”

First, let me say this that having sought to distinguish Falomo v. Lagos Stare Public Service Commission from the present case, it is not open to learned counsel al the same time to urge on us to overrule the case – See: Federal Civil Service Commission v. Laoye (1989) 2 NWLR (Pt.I06) 652.

Secondly, paragraph 4,04 with respect to learned counsel, contains some vital inaccuracies, The old Regulation 52 considered in Falomo and cited in the judgment of this Court was in no way different to the new Regulation 51 under consideration in this appeal; they are indeed, word for word, the same. Falomo was decided on the need for fair hearing in dealing with a case of misconduct involving a civil servant: no reference was made to any constitutional provision. True enough. section 33(2) of the 1979 Constitution seems wider in scope than the proviso to section 22(1) or the 1963 Constitution, but the essential thing is that both section 33(1) and section 22(1) provide for fair hearing. Again, it is observed in paragraph 4.04(d) that in FALOMO, the appellant was dismissed but in the present appeal, the appellant was not dismissed. Assuming this to be so, whether or not the appellant in the appeal on hand was dismissed is irrelevant to the question whether Regulation 51 and Rule 04502 do not provide for fair hearing and are thus in conflict with section 33(1) of the 1979 Constitution which requires fair hearing.

The question revolves on the interpretation of the Regulation and Rule vis-‘E0-vis section 33(1) I therefore conclude that I can see nothing in the present appeal to distinguish it from FALOMO on the issues under consideration.

Having disposed of paragraph 4.04, I now turn attention to paragraphs 4,22 to 4.26 of the appellant’s brief in which learned counsel has argued against the correctness of the decision in FALOMO. The circumstances under which this Court will overrule its own earlier decision are clearly stated in such cases as Eperokun v. University of Lagos (1986) 4 NWLR (Pt.34) 162: Federal Civil Service Commission & Laoye (1989) 2 NWLR (PI. 106) 652 and Asanya v. The State (1991) 3 NWLR (Pt.140) 422. In the last case Obaseki J.S.C. at page 454 of the report slates the principles clearly in these words:

“Previous decisions of this Court are binding on this Court until overruled or departed from. Departing from previous decisions is not a matter to be lightly embarked upon. The court can only be persuaded to depart from previous decisions if the previous decisions were proved wrong. given per incuriam and perpetuating injustice. See Odi v. Osafile (1985) 1 NWLR (Pt.1) 17: Bucknor-Maclean and Anor v. Inlaks Ltd. (1980) 8-11 S.C. 1.This is because the court has a twin duty to see that (1) justice is founded on the correct view of the law and (2) justice is not slaughtered on incorrect interpretation and application of the law and equity. The pursuit of these ideals are to go hand-in-hand with the pursuit of the ideal of certainty in the law.”

Olatawura J.S.C., In his own contribution, has this to say at pages 475 to 476 of the report:

“Judicial precedent is an insurance against inconsistent judgments. In matters affecting the administration of justice, liberty of the subject, interests of justice. There cannot be a posture of indifference in the name of stare decisis so as to enthrone injustice. That in itself will amount to a negation of justice. Where there is cause to depart from previous decision this court will not hesitate to do so: James Orubu v. National Electoral Commission & 13 Ors. (1988) 5 NWLR (Pt.94) 323: Buckuor-Maclean & Anor v. Inlaks Limited (1980) 8-11 S.C.1: Oduola v. Coker (1981) 5 S.C. 187 to mention a few. However, it must be appreciated and clearly understood that this court will not depart from previous decisions on flimsy grounds.”

Nnaemeka-Agu, JSC in his lead judgment at pages 448 to 449 said:

“He urged the court to overrule the line of cases which treat an accused person who testifies in his own defence as just a witness, because it leads to injustice. This court has declared that it will not perpetuate injustice in the name of State decisis, he submitted. He relied on – Bucknor-Maclean & Anor v. Inlak Ltd. (1980) 8-11 S.C. 1 Page 25: James G. Orubu v. N.E.C. & 13 Ors (1988) 5 NWLR (Pt.94) 323 P.356: UBA v. Stahlbau G.M.B.H (1989) 3 NWLR (Pt.110) 374 P.406: Adegoke Motors v. Adesanya (1989) 3 NWLR (Pt.109) 250 pp.274-275.

I wish to begin my consideration of this aspect of the appeal by restating the attitude of this court to the lime-honoured principle of State decisis. This court respects precedent, even though it is not a court bound by precedent. It is, as here as in many other parts of the Commonwealth, essential for the certainty of the law that it should generally follow its previous decisions. But, as a court of ultimate resort, it need not do so when the interest of jus tic edict ales otherwise. So it will not hold itself hamstrung by precedent when it has been shown that an established principle is beset with a substantial error such that to follow it will amount to furthering injustice. Nnamani, J.S.C. of blessed memory encapsulated the principle in James Orubu v. National Electoral Commission & 13 Ors. (1988) 5 NWLR (Pt.94) 323 (also in (1988) 12 SCNJ. 254 at page 276) where he stated:

‘I am afraid that this has not been the only considerations of this court in relation to its decisions. The question of the overruling of its decision have been dealt with in numerous decisions which were referred to by counsel they include: Bucknor-Maclean and Anor v. Inlaks Ltd (1980) 8-11 S.C. 1; Surakatu v. Nigerian Housing Development Society Ltd. (1981) 4 S.C. 26: Odi & Anor. v. Osafile & Anor (1985) 1 S.C.1;(1985) I NWLR(Pt.1) 17; Oduola v. Coker (1981) 5 SC.187, 230-231: Bronik Motors v. Wema Bank Ltd. (1983) 1 SCNLR 296; Akinsal/ya v. U.BA Ltd. (1986) 1

NWLR (Pt.35) 273, 323; Prince Yaya Adigun v. Attorney-General of Oyo State (1987) 4 S.C. 272, 342-344; (1987) 2 NWLR (Pt.56) 197. As I said, I am afraid that I do not agree with Mr. Jemide that what he stated have been the only considerations by this court. This court has always upheld the principle of stare decisis, and as was stated in Jones v. Secretary of State for Social Services, wishes to uphold the certainty of the law. In that connection, it does not make a habit of overruling its decisions without due consideration and haphazardly. But the court has, nevertheless, stated over and over again that where in a subsequent proceeding, an error is pointed out to it, it would not perpetuate such error. Idigbe J.S.C. in Bucknor-Maclean’s case stated it thus at page 24.

So in spite of the fact that the principle in Golder’s case (supra) has been ruling the waves in this country since 1961 and has been applied in numerous cases and that this court is more reluctant to jettison its previous decision which has been followed so often and for so long, this court would not hesitate to overrule it if it was satisfied that it was manifestly wrong, or given per incuriam some relevant constitutional or statutory provision or had led to injustice. See Johnson v. Lawanson (1971) 1 NMLR 380.”

With the principles enunciated in the above dicta (which are in line with other decided cases on the point) in mind. I now consider the request by learned counsel for the appellant that we do depart from our decision in FALOMO. The first reason given for the request is that the constitutionality of the former Regulation 52 was neither canvassed before nor considered by this Court but rather that FALOMO was based on the common law principle of natural justice. In expatiating on this learned counsel points out that no reference was made to s.22(1) of the 1963 Constitution then in force and goes on to argue that even under that section the old Regulation 52 (now Regulation 51) would be void. He submits that fair rearing implies that there must be a hearing before one can consider whether it is fair. He argues that the proviso to section 22(1) did not abridge the requirement of fair hearing nor did it authorise an administrative tribunal to reach a decision without granting a hearing to the party to be affected.

He then submits that the old Regulation 52, considered and declared valid in Falomo. was void under the 1963 Constitution. I agree with learned counsel that s.22(1) of the 1963 Constitution provided for fair hearing. In my view both sections 22(1) of the 1963 Constitution and s.33(1) of the 1979 Constitution are are-statement of the age long legal maxim that a man be not condemned unheard by an unbiased arbiter. This legal maxim either under the English common law or under our Constitution means one and the same thing. A careful examination of the judgment of this Court, per Idigbe J.S.C., in FALOMO will inform one that this Court in that case clearly understood what it was deciding. A judgment of any court deciding the common law rule on fair hearing will be relevant in the determination of the same question of fair hearing under our constitutional provisions. It has not been suggested that our constitutional provisions either abridge or extend the application of the audi alreram rule under the common law. That being the case, therefore, the non reference to s.22(1) of the 1963 Constitution in Falomo will not derogate from the quality of this Court’s judgment in that case nor its relevance in another case where the provisions of the 1963 or 1979 Constitution are being considered.

The second reason given by learned counsel for the appellant for asking us to overrule Faloma is that the English authorities cited with approval by this Court in that case are in conflict with the Court of Appeal (England) decision in Edward v. Society of Graphical and Allied Trades (1970) 2 All ER 689, 696 which was neither cited nor considered by the Court in Falomo. Learned counsel argues that Falomo was on all fours with Edwards and ought to have followed the latter in preference to the cases cited and relied on by this court in Falomo. With respect to learned counsel, I do not agree with him that Falomo was on all fours with Edwards. In Edwards the rule of the trade union therein considered provided for automatic termination of membership where a member was in arrears for over six weeks in the payment of his dues. The rule moreover gave a branch committee unfettered discretion to terminate membership of a member without a hearing and went on to deprive such member of a right of appeal from the decision of the branch committee to the executive council of the union. The old Regulation 52 and the new Regulation 51 as well as Rule 04502 are clearly not on all fours with the trade union rule considered in Edwards. As Lord Denning, MR. put it at page 696 of the report:

“Thus if the union should make a rule purporting to give itself uncontrolled discretion to expel a member without hearing him, that rule would be bad. No union can stipulate for a power to expel a man unheard, See Faramus v. Film Artistes’ Association per Lord Pearce. And the union cannot get round it by calling him a ‘temporary member’. A temporary member is just as much a member of the union as a full member. He pays his dues just the same; and he is entitled to equal protection by the law. The union has no right to expel a temporary member arbitrarily any more than it has a right so to expel a full member. To call him a ‘temporary member’ is only a covert way of claiming to exclude him at its discretion; and, as such, it cannot be allowed.” I cannot see how Edwards could be said to be different to the English authorities cited and relied on by this court in Falomo. All these cases frowned on any law that negates the rules of natural justice. Had Edwards been cited to this court in Falomo this Court would have relied on it as yet confirming the supremacy of the rules of natural justice in proper adjudication under administrative law. It may be that under the British constitutional law the supremacy of Parliament is recognized but here in Nigeria it is the supremacy of the Constitution that prevails. Our attention has however, not been drawn to any Act of Parliament that has excluded the common law rules of natural justice in its application and I shudder to think that there is such an Act.

In conclusion, I am not persuaded that Falomo was wrongly decided by this court. The reasoning of this court, Per Idigbe J.S.C. in coming to the conclusion that the old Regulation 52 (which is pari materia with the Regulation and Rule under consideration in this appeal) did not breach the rule of natural justice is very illuminating and I adopt it in arriving at the conclusion that Regulation 51 and Rule 04502 are not in breach of section 33(1) of the 1979 Constitution.

The court below per Babalakin JCA (as he then was) applied Falomo in holding that the provisions of rule 04502 are neither in violation of section 33(1) of the 1979 Constitution nor are they null and void. I am in full agreement with the court below on this and I too would hold that both Regulation 51 of the Lagos State Civil Service Commission Regulations 1980 and Rule 04502 of the Lagos State Civil Service Rules 1982 are not in conflict with section 33(1) of the 1979 Constitution and are valid. Both the Rule and the Regulation give an officer an opportunity, at his instance, if he so wishes, of being heard by the disciplinary authority.

Question (b):

I have already stated the facts of this case. The defence is to the effect that the Plaintiff did not turn up at his duty post nor was he seen to work anywhere-else for the Defendants. That is the sum total of the case for the defence both on the pleadings and evidence. Such a conduct on the part of the Plaintiff would c9me within the provisions of Regulation 51 and Rule 04502 necessitating the disciplinary authority, had it so wished, to exercise its discretion to dismiss him without a hearing. I would, therefore, answer question (b) in the affirmative.

Question (c):

Both Regulation 51 and Rule 04502 give the disciplinary authority a discretion to either dismiss the. plaintiff after following the procedure prescribed in Regulation 54 and Rule 04508 (which procedure ensures fair hearing) or to dismiss him without following the said procedure, that is, without affording him a hearing. There is nothing in the amended statement of defence nor in the evidence led for the defence that points to the defendants exercising their discretion to dismiss the plaintiff without a hearing. On the contrary in 1983 the Plaintiff was given a query in which a number of allegations were levied against him and he was required to give an answer thereto within a given period – (see exhibit 00). From this fact alone it would appear that the Defendant resorted to the procedure prescribed under Regulation 54 and Rule 04508. Having opted to deal with the Plaintiff in the manner provided in the Rules and Regulations for taking disciplinary proceedings, the Defendants must be taken to have waived their right to dismiss the plaintiff summarily without a hearing. It is noted that the learned trial Judge found that the Plaintiff, by his conduct, was automatically dismissed from the Defendant’s service under Rule 04502 and Regulation 51. He said: “In the case in hand I have found dismissal of the plaintiff valid and in the circumstance the question of reinstatement does not arise. I have already reached the conclusion that the plaintiff in the case in hand repudiated his contract of service with the defendants for being absent from duty without permission or any reasonable cause, that his punishment under sections 19 and 21 of the Standard Conditions of Service for Lagos State Parastatals exhibit BB, Rule 04502 of the Civil Service Rules exhibit AA and Regulation 51 of the Lagos State Civil Service Commission Regulations 1980 is automatic dismissal from the very date 17th December, 1980 he was absent from duty without leave or reasonable cause….” (Italics are mine).

The Court of Appeal also adopted the finding that under Regulation 51 and Rule 04502, the Plaintiff by his act of not reporting for duty, was automatically dismissed from the service. With profound respect to both the learned trial Judge and the Justices of the Court below, I do not accept their finding. This was not the Defendants’ case on the pleadings. In paragraph 14 of the amended statement of defence the defendant avers as follows:

“14. Further to paragraph 13 of this Statement of Defence the 1st and 2nd Defendants aver that the Plaintiff failed to assume his new duty post neither did he report for duty regularly at the office of the 2nd Defendant. The 1st and 2nd Defendants will contend that by his action the plaintiff was liable to summary dismissal under the Civil Service Rules and the Standard Conditions of service for Lagos State Parastatals. The 1st and 2nd Defendants will at the trial of this suit rely on the Civil Service Rules and Standard Condition of Service for Lagos State Parastatals. The defendant shall also rely on letter dated 3rd June, 1982 at the trial of this suit.”(italics are mine)

What they pleaded in that paragraph was that the plaintiff was liable to summary dismissal and not that he was summarily dismissed. In his evidence DW1 deposed inter-alia thus:

“The Plaintiff’s employment was not terminated”. This pleading coupled with the evidence of DW1 above would appear not to be in consonance with the finding of both the learned trial Judge and the learned Justices of the Court of Appeal to the effect that the Plaintiff was automatically dismissed from service.

This Court has warned on a number of occasions of the undesirability of a court formulating a case for the parties different to the case put up by them in their pleadings. See: Olatunbosun v. NISER Council (supra); Idika v. Esiri (1988) 2 NWLR (Pt.78) 563; Adeniji v. Adeniji (1972) 4 S.C. 10; Yakassai v. Incar Motors (1975) 5 S.C. 107. Had the trial court and the Court of Appeal restricted themselves to the case put forward by the parties, particularly the defendants, they would not have found, as they did, that the plaintiff was “automatically dismissed” from the service. The two courts below must have been led into this finding by their interpretation of Regulation 51 (2) and Rule 04502(b) which both provide that an affected officer shall be considered and treated for all purposes as having been dismissed from the State Civil Service by the very fact and from the date of his having committed any of the acts or omissions contained therein. A decision to dismiss normally takes effect from the date of the decision or a later date. What, in my respectful view, Regulation 51(2) and Rule 04502(b), seek to do is to make a decision by the disciplinary authority to dismiss an affected officer to take effect from a date earlier than the date of the decision, that is, retrospectively from the date the misconduct mentioned therein was committed. This in my view, is the only reasonable interpretation to put on Regulation 51(2), and Rule 04502(b).I do not think that the law giver would in Regulation 51(I) and Rule 04502(a) give a discretion to the disciplinary authority to dismiss either with or without a hearing only to turn round later to make the dismissal automatic without the will of the disciplinary authority. Such an interpretation, with respect. would be absurd. The finding of automatic dismissal does not find favour with me and I reject it. As this is the crucial finding that led to the dismissal of plaintiff’s case by the courts below, it follows that his appeal to this Court will be allowed.

Question (d)

Learned counsel for the Respondent rightly in my view, pointed out that this question does not arise from the judgment of the court below. The issue was raised in the Grounds of Appeal from the High Court to the Court of Appeal but in Appellant’s brief, it was abandoned in that no issue touching on it was formulated. I do not consider it an issue arising from the judgment of the court below and consequently I discountenance it.

Question (e):

It is contended on behalf of the Appellant that the learned trial Judge was wrong in granting leave to the defendants to amend their statement of defence after the close of the case for the Plaintiff. Babalakin J.C.A. in his lead judgment observed:

“‘The application to amend the statement of defence was brought under Order 25 Rule I of the High Court of Lagos Civil Procedure Rules which provides –

‘The court or a Judge in Chambers may, at any time of the proceedings, allow either party to alter or amend his endorsements or pleadings in such manner and on such terms as may be just and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.’

The parties had joined issues in their pleadings on the matter on which this further amendment was sought to be made. The amendment did therefore not take the Appellant by surprise nor did it introduced a new element to the case.

The main purpose of allowing an amendment as indicated under order 25 rule 1 above is to enable the court to determine the real questions in controversy between the parties. The order and rule under which application was brought give the learned trial Judge discretion to allow such amendment at any time of the proceedings. The only conventional restriction in granting such request is consideration of the fact that it must not be prejudicial to the other party. At the trial where this objection was taken the learned trial Judge wrote a considered ruling of 7 pages in which he considered relevant authorities.

He finally came to the conclusion that the amendment sought in the instance (sic) case will enable court to determine the main question in issue and it will not cause any injustice to the plaintiff’.

I must say that I too am in agreement with the reasoning and conclusion reached in the learned trial Judge’s considered ruling in the circumstances of this case.

The amendment sought was to elucidate further on a matter already pleaded, it will therefore not be prejudicial to the Appellant and I hold that the amendment was right (sic) allowed”. I agree entirely with him. The Plaintiff in his amended statement of claim pleaded thus:

“28. In the said 2nd Defendant’s letter of 11th June, 1982, the 2nd Defendant made several false allegations against the Plaintiff. The Plaintiff hereby denies each and every allegation contained in the said letter and will contend at the trial that the letters mentioned therein and dated 17th December, 1980 and 22nd September, 1981 and purportedly sent to the Plaintiff were never written and the Plaintiff never received the same.”

Thus, it was the Plaintiff himself who raised the issue of the non-receipt by him of the defendant’s alleged letter dated 17th December, 1980. He led evidence in support of his paragraph 28 by denying at the trial that he received such a letter. The Defendants in turn led evidence to show not only that the letter was written but that he received it. In the course of the trial, learned counsel for the Defendant thought it prudent to amend the statement of defence to plead that the letter was received by the Plaintiff. Learned counsel for the Plaintiff objected to the amendment sought and the learned trial Judge, in a considered ruling, overruled the objection and granted the amendment sought. I think he is right and I also think that the Court of Appeal is clearly right in affirming the decision to allow the amendment.

After the amendment had been made and defence had closed, Plaintiff was recalled at the instance of his counsel to give evidence in rebuttal. Thus apart from the decision to grant the amendment being right in law, the Plaintiff, by his conduct, cannot now question the correctness of the decision.

I therefore, answer Question (e) in the affirmative.

Having disposed of all the issues canvassed in this appeal and in view or my conclusion that both the trial Judge and the Court of Appeal were wrong to hold that the Plaintiff was automatically dismissed from the service, I now turn attention to his claims. This is so because in his Notice of Appeal the plaintiff seeks from this Court by way of relief the granting of all the claims contained in paragraphs 1, 2(1) and 3 of the amended writ of summons. In claims 1 (i) and (ii) Plaintiff claimed a declaration that the 1st Defendant unjustifiably repudiated his contract of service by wrongfully refusing to pay him his salaries from 1st February 1982 and N500,000.00 damages for wrongful dismissal, J cannot see how these claims can succeed. There is abundant evidence accepted by the learned trial Judge that for over two and half years, the Plaintiff absented himself from work. On the evidence, therefore, I do not see how I can grant the declaration sought. It would amount to a wrong exercise of discretion since the grant of a declaratory relief is discretionary.

Having also held that the Plaintiff was not automatically dismissed and there being no evidence that he was at any time dismissed from the service by the 1st defendant, I cannot see how his claim for damages for wrongful dismissal can succeed. It is also refused.

In alternative Claim 1(iii)(a) and (b) Plaintiff also claimed a declaration that the contract of service between him and the 1st Defendant entered into in or about 1973 still subsists and asked for an order of payment of arrears of salary and all other entitlements due to him from the Ist Defendant from 1st February, 1982 until the date of this judgment. I think he is on a firmer ground in respect of this altemative claim. As I have stated earlier in this judgment, it is not the Defendant’s case that he was ever dismissed. Indeed DW 1 was emphatic in his testimony when he said:

“plaintiff’s employment was not terminated”

and having held that the two lower courts were wrong to hold that he was automatically dismissed, the logical conclusion is that plaintiff’s contract of employment still subsists. The 1st Defendant had the discretion under Regulations 51 and 54 and Rules 04502 and 04508 to dismiss him for misconduct, but did not do so. A query was issued to the Plaintiff which he did not reply to. Strangely o enough the necessary procedure consequent on this query was not pursued as a result of which no decision up to date has been made to dismiss him. In the circumstance, I cannot but hold that his contract of employment subsists.

I do not know the authority the 1st Defendant has in stopping payment of salaries to the Plaintiff. DW1 in his testimony said:

“It is not the practice in the civil service to stop salary of an officer to make him comply with instruction. The last time the plaintiff received salary was January 1982. The non-payment of salary for two years is abnormal but we are dealing with abnormal situation.”

As not authority has been shown empowering the 1st Defendant to stop payment of salary to the plaintiff while still in service, I am compelled to order as in claim 1 (iii)(b) that his salaries and allowances from 1st February, 1982 to the date of this judgment be paid to him. I however, refuse his claim for N25,000.00 general and aggravated damages suffered “as a result of the 1st Defendant’s deliberate and malicious stoppage of the Plaintiff’s salary.” I am not satisfied that the 1st Defendant acted maliciously, having regard to the evidence accepted by the learned trial Judge.

As regards claim 2(i) there is no iota of evidence to support it. No evidence has been led to show that it was the 2nd Defendant that induced the 1st Defendant to do anything adverse to plaintiff’s interest. The claim is refused. Claim 2(ii) having been granted by the court below and against which there is no appeal to this Court, does not come up for consideration and I say nothing on it.

Claim 3 also, must fail. I am not satisfied on the evidence that Plaintiff has established any case against the Defendants to justify my granting that claim. The end result of all I have been saying is that this appeal succeeds as against the 1st Defendant and it is allowed. Plaintiff’s claims 1 (i), 1 (ii), 1(iv), 2(1) and 3 are however dismissed. His alternative claims I(iii)(a) and (b) are granted. I declare that the contract of service between the plaintiff and the 1st Defendant entered into in or about 1973 still subsists and I order that the 1st Defendant do pay to the plaintiff his salaries and other entitlements from 1st February, 1982 until the date of this judgment.

I award to the Plaintiff against the 1st Defendant costs of this appeal assessed at N1,000.00 and N300.00 and N500.00 as costs in the trial court and Court of Appeal respectively.

The appeal as against the 2nd Defendant is dismissed with N1,000.00 costs to the 2nd Defendant.

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Other Citation: (1992) LCN/2551(SC)