➥ CASE SUMMARY OF:
Dr A.O. Falomo V. Lagos State Public Service Commission (SC.457/75 • 13 May 1977)
by Branham Chima (LL.B.)
➥ SUBJECT MATTER(S)
Dismissal from service.
➥ CASE FACT/HISTORY
The appellant was at all time material to the proceedings in the lower court employed in the Public Service of the Lagos State and was posted to the Island Maternity Hospital Lagos as an “unconfirmed” Medical Officer Grade II (i.e. he was employed in that capacity on a month to month basis). Prior to the incident on account of which he (the appellant) was dismissed by the Public Service Commission, the respondents herein, there had been series of complaints by his immediate superior officers some of which had been brought to his notice and in respect of which he made representations to the immediate Head of his Department the Permanent Secretary in the Lagos State Ministry of Health. Some of these complaints concern allegations of gross acts of professional misconduct and others relate to alleged criminal offences. However, the material complaint leading to his dismissal from service was that he was absent from duty without permission (i.e. without leave or any cause) between the 15th and the 22nd day of April, 1974. While still absent from duty the appellant on the 23rd day of April, 1974, sent to his Department a medical certificate purporting to “excuse him from duty” for a period of seven days beginning from the 23rd day of April, 1974. During the period between 15th and 22nd April, 1974, the appellant was seen at a meeting and public seminar held at Enugu in the then East Central State. There were some unsuccessful efforts made by his immediate “boss”, the medical consultant to whom he was immediately subordinated, to obtain from him some explanation for his conduct; in this connection, a note was addressed to him inviting his explanation for his absence from duty. At first, he refused to accept the note but later, when subsequent notes were sent to him inviting his explanation he could not be found to be served with these notes.The appellant, not being on duty, could not be found in the premises of the hospital and all efforts to find him in his normal place of abode failed. In the circumstances, the Head of the Department – the permanent secretary in the Lagos State Ministry sent a very detailed report supported with written complaints from other doctors who normally worked with the appellant in the Lagos Island Maternity – including a report from the Chief Consultant to whom the appellant was subordinated – to the respondents who, by their letter of 13th May, 1974, addressed to him, dismissed the appellant from the public service of the Lagos State.
This appeal is from the Judgement of the High Court of Lagos State holden in Lagos (Adefarasin AG. C.J. as he then was) dated the 13th day of November, 1974 by which he dismissed the appellant’s application for an order of certiorari to remove into the High Court of Lagos State for the purpose of being quashed the decision of the Lagos State Public Service Commission dismissing the applicant, the appellant herein (Dr Akinlade Ore Falomo), from the public service of the Lagos State.
The sum of the arguments and submissions on behalf of the appellant is this: The exercise of the powers of the Public Service Commission (hereinafter referred to as “the Commission”) under Regulation 52 of the Public Service Commission Edict is a quasi-judicial one and that the Commission was not only under a duty to observe the principle of audi alteram partem under the Rules of Natural Justice, it was, also bound, to observe the said principle before dismissing the appellant from the Public Service of the Lagos State; since it failed to do so, the order of certiorari must issue to quash the said order of dismissal of the appellant by the Commission.
➥ ISSUE(S)
I. Whether an order of certiorari must issue to quash the said order of dismissal of the appellant by the Commission?
➥ RESOLUTION(S) OF ISSUES
[APPEAL DISMISSED]
↪️ ISSUE 1: IN RESPONDENT’S FAVOUR.
[THE DISMISSAL OF THE APPELLANT AFFECTS HIS RIGHT AND THUS THE PROCEEDING IS JUDICIAL
‘Learned Principal State Counsel, Mr. G.A.A.T. Jinadu, on behalf of the respondents relies on the second proposition above in his submission that the respondents’ decision in these proceedings is not amenable to an order of certiorari because, as he contends, it was purely an administrative act which is still subject to review. We are, however, of the opinion that the exercise resulting in the order by the respondents in the dismissal of the appellant from the public service of the Lagos State is, indeed, a judicial one, and amenable, normally to an order of certiorari. The actual making of the order or promulgation thereof is an administrative act but the exercise leading to the decision to dismiss the Public Officer definitely effects the rights of the public officer and, consequently, it is a judicial act. In this connection we refer with approval to the statement of Lord O’Brien L. C.J. in the case of R (Wexford C. C.) (Supra); “…I have no hesitation in saying that I have always considered, and still consider, the principle of law to be as stated by the Chief Justice (i.e. May C.l. in the Queen v. Corporation of Dublin – 2 L.R. Ir.371) assuming that there is nothing in the statute constituting the particular tribunal or investing it with the particular power which indicates a contrary intention. I have always thought that to erect a tribunal into a “court” or “jurisdiction”, so as to make its determinations judicial, the essential element is that it should have power, by its determination within jurisdiction, to impose liability or effect rights. By this I mean that the liability is imposed or the right is affected by the determination only, and not by the fact determined, and so that liability will exist, or the right will be affected, although the determination be wrong in law or in fact. It is otherwise of a ministerial power. If the existence of such a power depend upon a contingency, . . . his determination does not bind. The happening of a contingency may be questioned in an action brought to try the legality of the act done under the alleged exercise of the power. But where the determination binds, although it is based on an erroneous view of facts or law, then the power authorising it is judicial (provided it is within the limits of its jurisdiction)”. [see Irish Law Reports (1902) L.R. at 373-374]’
THE APPELLANT MUST BE GIVEN A HEARING
‘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 this 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 aforesiad 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 provisions in the Regulations for, and the special treatment of, “misconduct by absence without cause from duty”. Hence, the existance 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 MATTER IS STILL UNDER CONTROL OF THE DISCIPLINARY AUTHORITY
‘The evidence in these proceedings establish that the appellant has already exercised his right under the proviso to the said Regulation (i.e. Regulation 52 of the public Service Commission’s Edict) and the matter is still under the control of the disciplinary authority (i.e. the Commission), which is yet to give a decision.’]
.
.
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✓ DECISION:
‘For the foregoing reasons we find no merit in this appeal which must fail. Accordingly, this appeal fails and it is hereby dismissed with costs payable by the appellant to the respondent fixed at N213.00.’
➥ FURTHER DICTA:
➥ LEAD JUDGEMENT DELIVERED BY:
C. Idigbe, J.S.C
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
Gani Fawehinmi.
⦿ FOR THE RESPONDENT(S)
Mr. G.A.A.T. Jinadu.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
⦿ DISMISSAL OF SERVANTS, THREE CATEGORIES ON FAIR HEARING
In Ridge v. Baldwin (1946) A. C. 40 detailed consideration was given to the dismissal of servants by masters, and in his speech on the subject in the House of Lords, (with which we, respectfully, agree and to which we draw attention) Lord Reid dealt with it under three categories. First, he considered that in “a pure case of master and servant” although a servant had not been given opportunity to be heard prior to the decision to dismiss him, the dismissal was legally effective subject always (if the facts support such a course) to the servant’s right to damages for breach of contract. Secondly, it was his view that where a servant or occupant of an office was removable at pleasure he had no right to a prior hearing before dismissal and no remedies therefore. Thirdly, (and this is important with regard to proceedings in hand it was his view that where a servant or occupant of an office was removable only for cause he had an implied right to prior notice and opportunity to be heard see 1946 A C 65 – 68 per Lord Reid.
➥ REFERENCED (OTHERS)
