⦿ CASE SUMMARY OF:
Federal Civil Service Commission & Ors v. J.O. Laoye (1989) – SC
– Civil Service Commission;
– Natural Justice;
– Audi Alterem Partem;
– Criminal Offence;
Federal Civil Service Commission & Ors.
(1989) 2 NWLR (Pt.106) 652;
(1989) All N.L.R 350;
(1989) 4 S.C. (Pt 11) 1;
⦿ LEAD JUDGEMENT DELIVERED BY:
⦿ LAWYERS WHO ADVOCATED
* FOR THE APPELLANT
– Prince Bola Ajibola, S.A.N. Attorney General of the Federation;
– Mr. Harris-Eze.
* FOR THE RESPONDENT
– Professor M. I. Jegede
⦿ FACT (as relating to the issues)
The plaintiff, now respondent, Mr. J. O. Laoye, a Senior Executive Officer in the Ministry of External Affairs, was formerly on posting to the Consulate-General of Nigeria in New York. It was suspected that while in that office he had committed certain improprieties. As a result, he was issued with queries by means of two “Preliminary Letters” Exhs. “B” and “B1” dated 17th May, 1978, and 28th September, 1978. The respondent replied to these letters alleging his innocence, and requested a further probe of the issue. However, what the respondent received next was a dismissal letter from the Federal Civil Service Commission.
After the dismissal, the plaintiff, J. O. Laoye, claimed in the High Court:
(a) A declaration that his purported dismissal from the employment of the Federal Civil Service Commission by a letter dated July 21, 1981 is null, void and of no effect;
(b) A declaration that he is still in the employment of the Federal Ministry of External Affairs;
(c) An order directing the 1st Defendant to reinstate the plaintiff to his status as a Civil Servant without prejudice to entitlements and promotions which might have accrued to him during the period of his dismissal.
(d) An injunction restraining the 1st Defendant from further interfering with the plaintiff’s performance of his duties as a Civil Servant.
The Defendant, now Appellant, appealed to the Court of Appeal, but the appeal was dismissed. The Court of Appeal held, “It is a fact, as shown from the record, that the Respondent had been queried by the Ministry of External Affairs on the allegations made against him and that he answered the queries. However the Ministry of External Affairs is not the body responsible to discipline the officer.
It is the duty of the Civil Service Commission, the 1st appellant, to do so. The Civil Service Rules, 1974, provide for the submission of serious allegation of misconduct concerning senior public officers to the 1st appellant. Preliminary investigations made by the Ministries shall be forwarded to the Civil Service Commission which shall conduct disciplinary proceedings in the manner of a mini trial of the allegation made against an individual public officer. In the case in hand the 1st appellant abdicated its responsibility by failing to investigate the allegations made by the Federal Ministry of External Affairs against the Respondent. Instead, the 1st appellant only relied on the accuser’s report and without calling upon the Respondent to explain his defence, it wrote the letter reproduced above and summarily dismissed him from the service. The procedure followed by the Civil Service Commission is a clear violation of the principle of natural justice.” The Appellant has herein appealed to the Supreme Court.
1. Whether or not the principle of Natural Justice was observed before the dismissal of the respondent from the service of the Federal Civil Service Commission?
2. Whether or not the Federal Civil Service Commission Rule made in 1974 is an extant valid law having bearing on the present case?
⦿ HOLDING & RATIO DECIDENDI
A. FOR ISSUE 1, the Supreme Court held in favour of the respondent:
i. It has to be remembered that all the communication in this matter was between the Ministry of External Affairs, which in the circumstances of this case was the accuser, and the Respondent. Before the first appellant wrote Exhibit A to the Respondent, it did not deem it necessary to inform the Respondent of the possibility of dismissal and so call for his explanations as clearly required by sub-rule 1. It did not establish any inquiry to go into the matter. If it took evidence from any witnesses, the Respondent did not know and was not informed. The 1st appellant merely acted on the queries sent to the Respondent to which the Respondent had replied. This failure to comply with the sub-rules of rule 04107 really takes this matter into the question of natural justice. Most of the sub-rules were drafted no doubt to ensure compliance with those rules. Section 33(1) of the 1979 Constitution provides for fair hearing, a principle of fairness which is the basis of all the rules of natural justice. [per Eso, JSC]
ii. Did the appellants observe the principles of natural justice? In my judgment the answer is in the negative. The Respondent was surely heard by the Ministry of External Affairs, but the Ministry turned not only accuser but Judge too as can be seen from the exhibits. But it is in the manner the 1st appellant dealt with the issues before the purported dismissal of the Respondent, that violation of natural justice definitely occurred. The first appellant cannot be said to have given the Respondent a hearing. It never conveyed to the Respondent the grounds on which it proposed to dismiss him so as to afford him an opportunity of making representations. Having got the exhibits which it claimed to have considered, it is not clear what other materials it took into account before deciding to dismiss the Respondent. If indeed there were such materials, they were never brought to the attention of the Respondent. If the Ministry of External Affairs made further enquiries into the replies of the Respondent to its queries, such inquiry was not brought to the attention of the Respondent. More disturbing in the context of this case, is the fact that in Exhibits B1 and C1 (the replies to the queries), the Respondent mentioned the names of several persons Mr. and Mrs. Akwara, officials from the Flying School etc. who he thought were in a position to throw more light on this matter. There is nothing to indicate that such persons were contacted. If they were, the Respondent was entitled to be present during their testimony and to cross-examine them if he chose. This was not done. The Respondent even made reference to financial procedures both in the Nigerian Consulate in New York and in the Chemical Bank which he thought could show his innocence. There was nothing to show that these matters were examined. These would be sufficient to dispose of this appeal. [per Nnamani, JSC]
iii. As I have shown earlier on in this judgment, the plaintiff was not given any opportunity to make any representation to the Federal Civil Service Commission. All the representations he made in Exhs.C and C1 were made to the Ministry of External Affairs. It was the Commission that took the decision to dismiss the plaintiff/Respondent see Exh.A. That decision was taken without any representation to the Commission. One then wonders on what the “administering authority” the Commission made the decision to dismiss the plaintiff? On representations not made to it as required by S. 33(2) above but to an entirely different body here the Ministry of External Affairs? There was thus an undiluted and flagrant breach of S. 33(2) of the 1979 Constitution. The action of the Commission cannot therefore be justified under S. 33(2) above. [Per Oputa, JSC]
B. FOR ISSUE 2, the Supreme Court held in favour of the respondent:
i. One cannot have continuity in the office of the Public Service Commission from the 1963 Constitution into the 1979 Constitution and close one’s eyes to the Civil Service Rules which the former Commission operated in the absence of any new post 1979 Rules. It is here that Section 274(4)(b) comes in to preserve the existing Rules. I therefore hold that the Civil Service Rules made under the 1963 Constitution will now be deemed to have been made under the 1979 Constitution and will continue to be constitutional and valid until set aside and replaced by new Rules. The dismissal of the plaintiff/Respondent will therefore have to be justified under the then and now existing Civil Service Rules.
Section 140(1) of the 1979 Constitution established the Federal Civil Service Commission;
By section 147 of the 1979 Constitution, the Commission may, with the approval of the President, make rules to regulate its’ own procedure.
⦿ SOME PROVISIONS
S. 274(1) of the 1979 Constitution “Subject to the provisions of this Constitution, an existing law shall have effect with such modifications as may be necessary to bring it into conformity with the provisions of this Constitution and shall be deemed to be (a) An Act of the National Assembly to the extent that it is a law with respect to any matter on which the National Assembly is empowered by this Constitution to make laws. (b) A Law made by a House of Assembly to the extent that it is a law with respect to any matter on which a House of Assembly is empowered by this Constitution to make laws.”
No. (iii) of 04107 of the Federal Civil Service Rules 1974: “If any witnesses are called to give evidence, the officer shall be entitled to be present and to put questions to the witnesses.”
“Section 33(2) of the CFRN 1979: 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 law that affects or may affect the civil rights and obligation 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 administering authority makes the decision affecting that person; (b) contains no provision making the determination of the administering authority final and conclusive”.
⦿ RELEVANT CASES
In EPEROKUN v. UNILAG (1986) 4 N.W.L.R. (Pt.34) 162 the strong words of Irikefe, C.J.N., are very apt – “Constitutionally entrenched provisions, particularly those safeguarding individual rights, should not, save in a fascist system, be lightly trampled upon. An appointee should not have the specter of misconduct hanging over his head without being given an opportunity of clearing his name.”
In Olatunbosun v. Niser (1988) 3 N.W.L.R. (Pt.80) 25, the issue was the status conferred by section 9 of the University of lbadan Act. Oputa, J.S.C., delivering the lead judgment of the Court held that as it was in the Olaniyan case, the appointee acquired special status over and above the ordinary contractual relationship of master and servant at common law.
⦿ NOTABLE DICTA
However, in his oral submission, his contention was that the Civil Service Rules have no force of law as they were not made post 1979, and as the Public Service Commission was not the same as the Civil Service Commission. With utmost respect, this is a clear misconception of the legal position. I have already set out S.274 of the 1979 Constitution which deals with existing law. Under that provision, the Federal Government Civil Service Commission Rules in question were, on the eve of 1st October, 1979, existing law and they, on the coming into force of the Constitution, started to have effect “with such modifications as may be necessary to bring it into conformity with the provisions of sections 140 and 147 of the Constitution.” – Eso, JSC. FCSC v. Laoye (1989)
It is not so difficult where the person so accused accepts his involvement in the acts complained of, and no proof of the criminal charges against him would be required. He has, in such a case, been confronted with the accusation and he has admitted it. He could face discipline thereafter. But in the real enactment of life drama, this is never the case. People very seldom, if at all, admit of their involvement in criminal acts. – Eso, JSC. FCSC v. Laoye (1989)
I think the reasoning of this Court on fair hearing, is also not only in accord with the law over the ages but agrees with common sense. Anyway, is there a reason the other side should not be heard before he is condemned? Why should he not enjoy the rights conferred upon him by law as regards his employment? Why should he not be protected by the Constitution and have criminal charges against him determined by the Courts or Tribunals set up by the Constitution itself? I think it is admitted in every reasonable culture, even apart from the decisions of this Court, that a Judge should hear both sides before determining the guilt or otherwise of a person. – Eso, JSC. FCSC v. Laoye (1989)
It has long been established that the legislator himself intends the interpreter of an enactment to construe an enactment in such a way as to implement, rather than defeat, the legislative intention. The maxim is ut res magis valeat quam pereat. – Eso, JSC. FCSC v. Laoye (1989)
I can only reiterate the decision of this Court in that case, as in other cases before (See Sofekun etc) that where the indiscipline complained of amounts to crimes under the Criminal or Penal Code, it is the Courts set up under the Constitution that must have jurisdiction. – Nnamani, JSC. FCSC v. Laoye (1989)
I have found it difficult to understand the distinction thereby drawn between observing the rules of natural justice and doing substantial justice. I think, and without apologies for not relying on any decided cases, I can say without fear of contradiction that the rule relating to hearing both sides in a dispute is fundamental to the administration of justice and decision making in all societies irrespective of their level of civilization or sophistication. Almost every indigenous ethnic group has a saying importing the concept. If what is being done has a semblance of justice, it is elementary that the two sides must be heard first before any determination could be made. – Karibe-Whyte, JSC. FCSC v. Laoye (1989)
The parties before the Civil Service Commission in this case are the 2nd appellant, Ministry of External Affairs, which has laid a complaint about charges of misconduct against the Respondent, and the Respondent. 1st appellant after hearing from the 2nd appellant including what 2nd appellant presented as the explanation of the Respondent, decided to determine the dispute between the parties without hearing what Respondent has to say about the allegations. 1st appellant, did not therefore try the dispute, having not heard the Respondent. There was no hearing. We cannot therefore talk about a hearing being fair. Both sides have not been heard. Only one side, the 2nd appellant was heard. This is without doubt a violation of section 33(1) of the Constitution, 1979. – Karibe-Whyte, JSC. FCSC v. Laoye (1989)
This case is important from many angles. That a lone and solitary civil servant can sue the Federal Civil Service Commission, the Ministry of External Affairs and the Attorney-General of the Federation and win is a healthy sign which shows that in our country the citizen has rights against the State and can successfully press those rights through the Courts. This is democracy in action. The case becomes more significant when we realise that this was under a military government. Ours is a military government with a human, humane and democratic face. Another significant aspect of the case is that the Federal Attorney-General appeared in person. He has always appeared in important cases. I wish the State Attorneys-General will imitate this splendid example. I know of many States where, for years, the Attorneys-General, the Chief Law Officer of the States, have not seen the inside of a law Court. They merely shuttle between the Ministry of Justice and the Cabinet Office. That is not good enough for the growth of the law in those States. Immemorial practice demands that in serious cases the Attorney-General should represent the State and make available to the Court the wealth of his experience all in an attempt to attain justice. – Oputa, JSC. FCSC v. Laoye (1989)
This Court does not show any antipathy towards any submission that its previous decision or decisions were wrong and should be over-ruled. In fact, the Court welcomes any opportunity to review any decisions given per incuriam. It is far better to admit an established mistake or and correct same rather than persevere in error. Justices of the Supreme Court are human-beings capable of erring. It will be short-sighted arrogance not to accept this obvious truth. – Oputa, JSC. FCSC v. Laoye (1989)
Yes, justice has never been a one way traffic. It has never been justice for government functionaries only. Justice has two scales and the case of either party is put in one or other of the scales and weighed. Justice is also depicted as blind. It neither sees nor recognises who is a government functionary and who is not. It is not a respecter of persons or institutions, no matter how highly placed these are. One aspect of our much vaunted equality before the law is that all litigants, be they private persons or government functionaries, approach the seat of justice openly and without any inhibitions or handicap. Each wins solely and wholly by, and because of, the strength of his case; its weight on the scale of justice. – Oputa, JSC. FCSC v. Laoye (1989)
When the Court is described as the last hope of the common man that implies that it is the duty of the judiciary (a duty which it owes to the course of justice) to ensure that any encroachment on the rights of the individual, any coercive action is justified by law. In the unequal combat between those who possess power and those on whom such power bears, the Court’s primary duty is protection from the abuse of power. – Oputa, JSC. FCSC v. Laoye (1989)
We operate a system which presumes a man innocent until he is proved guilty. Our system arrogates to the Court the burdensome duty of pronouncing this guilt, after proof of such guilt in open Court, where the facts are subjected to the acid test of effective cross-examination. To do otherwise will constitute an unwarranted attack on our system of criminal justice. – Oputa, JSC. FCSC v. Laoye (1989)
The government of any country is or should be a continuing process. Even when and where a new Constitution has been promulgated, special provisions are usually made to preserve continuity. A new Constitution does not create a tabula rasa. It normally makes a provision to cover, protect and preserve existing laws, offices and institutions. – Oputa, JSC. FCSC v. Laoye (1989)
Now, although generally it is for the legislator to change the law when it desires to do so, this Court can, and ought to, correct obvious slips in drafting. – Nnaemeka-Agu, JSC. FCSC v. Laoye (1989)
A person so accused is entitled to be confronted with his crimes, be told the nature and content of the case against him, be brought face to face with his accusers and their witnesses, be given the opportunity to test their veracity under the fire of cross-examination, to defend himself personally and with the assistance of a counsel of his choice, and to call such witnesses that he wishes to call to support his case – all these within a reasonable time and before a court or tribunal constituted in such a way as to ensure its fairness and impartiality. Those are the aspects of the rule of natural justice that concern us in this case. The Respondent was fully entitled to each and every ingredient of it. No one can rightly derogate from any part of it. Even God himself felt obliged to hear Adam before condemning him of his heinous transgression. It is no answer in any case in which a person is entitled to a hearing to say that his offence was so obvious that any hearing would have been a mere formality. For, quite often, when the rule of natural justice is observed and a trial is proceeded with, it turns out that the whole affair was a conspiratorial fabrication or at best based on mere suspicion. This is why once a breach of natural justice has been properly raised in any proceeding it is not a relevant consideration to inquire whether the court or tribunal in fact decided rightly. – Nnaemeka-Agu, JSC. FCSC v. Laoye (1989)
There can be no doubt that an administrative authority such as the 1st appellant vested with the quasi-judicial power to decide issues which involve the rights of citizens is bound to observe the rules of natural justice. Any decision which such a body reaches without due observance of the rules of natural justice is bound to be set aside. – Nnaemeka-Agu, JSC. FCSC v. Laoye (1989)
But whenever the charges against those persons amount to criminal offences under our criminal laws, such a body must take the view that it is not vested with the power to try criminal offences and cannot usurp the power intended by the Constitution to be exercisable by the courts or tribunals. – Nnaemeka-Agu, JSC. FCSC v. Laoye (1989)