SAMUEL IGBE V THE GOVERNOR OF BENDEL STATE


READ CASE SUMMARY


IN THE SUPREME COURT OF NIGERIA

ON FRIDAY, THE 11TH DAY OF FEBRUARY, 1983


APPEAL No: SC.8/1982

CITATION: SC (1983) 2 LLIR 1

Before Their Lordships

ATANDA FATAYI-WILLIAMS, J.S.C.

GEORGE SODEINDE SOWEMIMO, J.S.C.

MOHAMMED BELLO, J.S.C.

ANDREWS OTUTU OBASEKI, J.S.C.

KAYODE ESO, J.S.C.

ANTHONY NNAEMEZIE ANIAGOLU, J.S.C.

MUHAMMADU LAWAL UWAIS, J.S.C.

 


BETWEEN

SAMUEL O.V. IGBE

(Appellants)

AND

1. THE GOVERNOR OF BENDEL STATE

2. THE ATTORNEY-GENERAL OF BENDEL STATE

(Respondents)


 

RATIO/PRONOUNCEMENTS

A. CONSTITUTIONAL LAW

1. Rule of Law–On the duty of every government to comply with the provisions of the constitution

It is the duty of every government to comply with the provisions of the Constitution and to preserve, protect and defend it. To act contrary to the provisions of the Constitution will not, if properly brought to the notice of this Court, be condoned but such an act will invite the proper sanctions and reliefs. Per OBASEKI, J.S.C. READ IN CONTEXT

2. On the difference between the Public Service Commission and the Civil Service Commission in the 1963 and 1979 Constitutions

The difference in nomenclature between Public Service Commission under the 1963 Constitution (see S.146 thereof) and State Civil Service-Commission under S.178 of the 1979 Constitution makes no difference to the survival of the institution of the Public Service Commission on the coming into force of the 1979 Constitution, the essence of the difference in the two bodies lying in the reduction of the ambit of the duties which the Public Service Commission was performing under the 1963 Constitution as against the duties now being performed by the State Civil Service Commission, but barring that reduction they are the same. In any case the reduced function cannot defeat the intention of the Constitution that the State Public Service Commission in its new name of the State Civil Service Commission should survive the Constitutional transition. Per ANIAGOLU, J.S.C. READ IN CONTEXT

B. CONSTITUTIONAL INTERPRETATION

3. Effect of Section 180(1)(b) of the 1979 Constitution

Section 180(1)(b) has also ensured that a person who is a member of the Commission by virtue of his having previously held office, shall continue for the duration of his remaining term. He is not a new appointee but is deemed to be duly appointed. He can however be removed before his term expires if section 182(1)is complied with. Per Fatayi-Williams, C.J.N. READ IN CONTEXT

4. Interpretation of Section 275(1) of the 1979 Constitution

Sub-section (1) of section 275 of the 1979 Constitution deals with the function of an office which was in existence by virtue of the 1964 Constitution of Bendel State. It then went on to say that such office shall be deemed to have been duly established. The same subsection (1) further provides that the office shall continue to be charged with such function “until other provisions are made, as if the office………………………… was established and charged with the said function” by virtue of the 1979 Constitution or in accordance with any law made thereunder by the Bendel State legislature. It is, therefore, clear from this breakdown that the subsection deals with the function of the office and NOT with the holder of that office. Per Fatayi-Williams, J.S.C READ IN CONTEXT

C. WORDS AND PHRASES

5. Meaning of “Statutory Corporation

A “Statutory Corporation” is defined in the Order as “any Corporation, Board, Council, Tribunal, Commission or Committee” specified in the Schedule to the Order. Among the “Statutory Corporations” specified in the said Schedule is the “Public Service Commission.” Per Fatayi-Williams, C.J.N. READ IN CONTEXT

 


LEAD JUDGEMENT DELIVERED BY FATAI-WILLIAMS, C.J.N.


The plaintiff (now appellant) was appointed a full-time member of the Public Service Commission of Bendel State on the first day of August, 1979, by the then Military Administrator of Bendel State. The appointment was for five years. The letter of appointment dated 17th August, 1979 (Ex.A) reads –

“Appointment as full time Member of the Public Service Commission.

I have great pleasure in informing you that the Military Administrator of Bendel State, Brigadier Abubakar Waziri, has graciously approved your appointment as a full-time member of this State’s Public Service Commission.

2. The appointment which takes effect from 1st August, 1979, is subject to the relevant provisions of the Constitution of the Bendel State of Nigeria, as modified by subsequent Decrees, as well as the existing conditions of service applicable to members of the Public Service Commission as per the attached schedule.

3. I should be grateful if you would indicate in writing whether you accept the appointment.

4. Copies of this letter are being sent to the Secretary, Public Service Commission, the Accountant-General and the Auditor-General for their information and necessary action.

(sgd.) D. P. Lawani, OON, KSG, Secretary to the Military Government and Head of Service.”

The conditions of service (Ex.A1) referred to in letter (Ex.A) dealt with the terms of service, remuneration, travelling allowance outside Nigeria, and accommodation.

It is provided in the terms of service that the appointment shall be for five years except as otherwise determined by the provisions of the Constitution of Bendel State of Nigeria.

The plaintiff accepted the offer of appointment in writing by letter dated 20th August, 1979 (Ex.B).

The Constitution of Bendel State referred to in the letter (Ex.A) was, however, replaced by the Constitution of the Federal Republic of Nigeria, 1979 (hereinafter referred to as the 1979 Constitution). At the coming into force of the new Constitution on 1st October, 1979, the Military Administrator was replaced by the first defendant as Governor of Bendel State with effect from that date.

By paragraph 3 of the Statutory Corporations (Revocation of Appointments of Chairmen and Members) Order, 1979 (B.S.L.N.328 of 1979) which came into force on 29th October, 1979,

”The appointments of the Chairmen and members of all Statutory Corporations in the State including those specified in the Schedule to this Order are hereby revoked with effect from the date of commencement of this Order.”

A “Statutory Corporation” is defined in the Order as “any Corporation, Board, Council, Tribunal, Commission or Committee” specified in the Schedule to the Order. Among the “Statutory Corporations” specified in the said Schedule is the “Public Service Commission.” (back to top?)

By letter dated 1st November, 1979, (Ex.D), Mr. Lawani, the then Head of Service of Bendel State, wrote to Dr. M. E. Mowoe, the Chairman of the State Public Service Commission, as follows:-

“Dear Sir,

Revocation of Appointment

With reference to your letter No. S.15/Vol.111/133 of today’s date addressed to His Excellency the Governor of Bendel State, I am directed to say that at the moment there is no Civil Service Commission in this State and that the Public Service Commission of which you were Chairman is affected by the Revocation Order. A new body – the Civil Service Commission – will be set up in accordance with the Constitution of the Federal Republic of Nigeria, to take the place of the dissolved body shortly.

Yours sincerely,

(sgd) D. P. Lawani, OON, KSG,

Head of Service.”

Later, the Bendel State House of Assembly passed the Civil Service Commission Law (No.7 of 1980) which came into force on 19th November, 1979, although it was not assented to until 18th April, 1980. Section 4 of the said Law provides that the provisions of sections 179 to 185 of the 1979 Constitution shall apply in relation to the Commission while section 5 thereof provides that-

“For the avoidance of doubt it is hereby declared that the Public Service Commission of the Bendel State of Nigeria shall cease to exist from the date of commencement of this Law.”

Meanwhile, by letter dated 16th November, 1979 (Ex.F), the plaintiff’s solicitors wrote to the Governor of Bendel State pointing out that up till the date of that letter, their client (the plaintiff) had not been officially informed that his appointment had been revoked or terminated. The solicitors then asked for the clarification of the following points –

a. whether their client was affected by the unorthodox termination of his appointment by radio; television, and newspaper publication;

b. if (a) above is in the affirmative, they would submit that the Governor exceeded his powers; and

c. if (a) is in the negative, then the Governor should direct that their client be informed accordingly.

There was no reply to this letter from the plaintiff’s solicitors. Instead, on the 14th day of December, 1979, there was an announcement in the media (radio and television) that certain persons, which did not include the plaintiff or any of the former Commissioners, had been sworn-in as members of the Bendel State Civil Service Commission. The Nigerian Observer, a newspaper published in Bendel State, carried the same announcement in its issue of Saturday, 15th December, 1979.

Being dissatisfied with this action of the Governor, the plaintiff brought these proceedings in the High Court of Bendel State in which he claimed as follows:-

“i. A declaration that the press statement by one D. P. Lawani (Head of Service on or about the 31st of October, 1979, on behalf of the 1st defendant dissolving by proclamation, Boards, Commissions, Committees and Tribunals in Bendel State, in so far as it purports to revoke the appointment of the plaintiff as a full-time member of the Public (Civil) Service Commission of Bendel State is unconstitutional ultra vires the powers of the 1st defendant as the Executive Governor of Bendel State and therefore void;

ii. a declaration that under the Constitution of the Federal Republic of Nigeria 1979, the 1st defendant can remove the plaintiff from office as a full-time member of the State Public (Civil) Service Commission only on an address supported by two-thirds majority of the Bendel State House of Assembly praying that the plaintiff be so removed for inability to discharge the functions of his office (whether arising from infirmity of mind or body or any other cause) or for misconduct and by no other method;

iii. damages for breach of contract of service between the plaintiff and the Government of Bendel State, whereby the Government appointed plaintiff as a full-time member of the Public (Civil) Service Commission of Bendel State for a period of five years with effect from 1st of August, 1979.

iv. claims N61,426.50 Special Damages;

v. claims N50,000.00 General Damages.”

In paragraph 12 of his amended statement of claim, which the defendants denied in its entirety, the plaintiff states that –

“(12) It will be contended at the trial that the press statement issued by the said D. P. Lawani (Head of Service, Bendel State of Nigeria) on or about the 31st day of October, 1979, on behalf of the 1st defendant dissolving by proclamation, Boards, Commissions, Committees and Tribunals in Bendel State, in so far as it purports to revoke the appointment of the plaintiff as a full-time member of the Public (Civil) Service Commission of Bendel State is unconstitutional ultra vires the powers of the 1st defendant as the Executive Governor of Bendel State of Nigeria.”

All the facts stated above are not in dispute. After hearing the arguments put forward by both learned counsel for the plaintiff and the learned Solicitor-General of Bendel State who appeared for the defendants, the learned trial Judge, in a reserved judgment, reviewed in detail all the relevant provisions of the 1979 Constitution including those of sections 178, 179, 180 and 275. He also considered the cases cited before him. He thereupon observed as follows:

”Therefore it is my view that the Public Service Commission passed through to the 1st of October, 1979 together with its members as if it was duly established and its members duly appointed under the 1979 Constitution subject to the provisions of section 180(1)(b). Steps could then be taken to formally establish the State Civil Service Commission by order as I suggested earlier or by due process of law passed by the House of Assembly. But this is not done by purporting to abolish the Public Service Commission and to clear the desks of its members, as it were, before taking due time to formally establish the new Commission. There should be no such gap. The provisions of section 275(1) and (2) have already ensured that that did not happen. The existence of a Commission to take charge of civil service matters is a constitutional requirement and the change of name from Public Service Commission to Civil Service Commission would from the coming into effect of the 1979 Constitution take on some of the formers functions as they relate to certain categories of officials of the Judicial Department. Since it was obviously impractical for the Governor or the House of Assembly to settle down on 1st October, 1979 to be able to effect necessary changes conformably to the 1979 Constitution that same day, section 275(1) and (2) became imperative.

Section 180(1)(b) has also ensured that a person who is a member of the Commission by virtue of his having previously held office, shall continue for the duration of his remaining term. He is not a new appointee but is deemed to be duly appointed. He can however be removed before his term expires if section 182(1)is complied with. This is also implicit in section 275(4). Section 182(1) reads:

‘Any person holding any of the offices to which this section applies shall only be removed from that office by the Governor of that State acting on an address supported by two- thirds majority of the House of Assembly of the State praying that he be so removed for inability to discharge the functions of the office (whether arising from infirmity of mind or body or any other cause) or for misconduct.’

The section applies to the offices of the Chairman and members of the State Civil Service Commission and of two other Commissions. (back to top?)

The defence argued that among the new qualifications for membership of the Commission is that, in the opinion of the Governor a person must be of unquestionable integrity and sound political judgment. That may be so; but it is for the purpose of appointment in which case the Governor is to use his deliberate judgment to determine that. The 1979 Constitution did not give that opportunity to the Governor to decide the fate of the plaintiff who is deemed to have been duly appointed by virtue of section 275(2), he not being a new appointee as I said before. If the Governor feels that a member whose continued appointment has been guaranteed by the Constitution lacks the quality which the defence referred to he will have to convince two-thirds majority of the House of Assembly about that in order to secure his removal. The position therefore is that such a person must be removed by proper authority and for just cause.

A somewhat similar situation arose in the case of Kanda v. Government of the Federation of Malasia (1962) A.C.322 cited by learned counsel for the plaintiff. In that case, the Commissioner of Police instead of the proper authority, the Police Service Commission, dismissed the appellant, an Inspector of Police, from the Police Service of Malaya in July 1958. The Constitution of Malaya which came into force on 31st August, 1957 gave the powers to dismiss to the Police Service Commission, although Article 144(1) of the Constitution made the functions of that Commission, ‘subject to the provisions of any existing law.’ The Privy Council held that Article 144(1) must be read to mean only such provisions as were consistent with the Commission carrying out the duty entrusted to it under the Constitution; and further that where there was a conflict between the existing law and the Constitution, the former would have to be modified so as to accord with the latter. This was to ensure the supremacy of the Constitution, as always, and at the same time that the Commission was duly seized of its duty. The purported dismissal of the Inspector by the Commissioner of Police was accordingly declared void. This case, I think, represents the watershed of the argument presented on behalf of the plaintiff in this action before me.”

With respect to the Statutory Corporations (Revocation of Appointment of Chairmen and Members) Order, 1979. to which I have referred earlier, the learned trial Judge then observed:-

“To the extent that the order was meant to revoke the appointment of the plaintiff as it was done, it is unconstitutional and of no effect. The said Commission is a Constitutional Agency for the administration of Civil Service Affairs and cannot be undermined directly or indirectly, temporarily or permanently.”

The learned trial Judge finally ordered as follows:-

“In the present case before me, seeing that other persons have been appointed to perform the duties of the plaintiff and his colleagues, I do not think it will be proper to make any order which will disrupt that arrangement. Once the rights of the plaintiff are ascertained and these could be quantified in money, it is my view that it will be more convenient as a constitutional remedy to award the amount involved to the plaintiff……… I think the plaintiff is entitled to the reliefs sought, subject to the remarks I have already made as to some of them.

I therefore grant the said reliefs and they in substance come to this:

a. The removal of the plaintiff by the Governor as a full- time member of the Public/Civil Service Commission without complying with the proper procedure and without just cause is unconstitutional, ultra vires, null and void.

b. An award of salary and allowances for the unexpired term of his office, that is, four years and nine months as follows:

Basic salary at N11,328.00 per annum N53,808.00

Housing subsidy at 600.00 per annum 2,850.00

Telephone subsidy at 120.00 per annum 570.00

N57,228.00”

This decision was, however, set aside on appeal by the Federal Court of Appeal. The reason for this decision was given in the lead judgment of the Court, part of which reads –

“I will now go back to the consideration of the extent to which section 275(1) of the 1979 Constitution preserves the existence of the Public Service Commission, a body created under the 1964 Constitution of Bendel State. From what I have said earlier on in this judgment I am inclined to the view that the true and proper construction of section 275 of the present Constitution is that the existence of the Public Service Commission under the former Constitution is preserved until the body created under the new Constitution, that is, the State Civil Service Commission starts functioning. It appears to be no dispute that the State Civil Service Commission established by the 1979 Constitution started functioning as from 14th December, 1979, when its Chairman and members were duly appointed. To my mind, as from that date the Public Service Commission under the former Constitution would cease to exist as a body.

What happens then to members of the Public Service Commission? I am of the view that subsections (1) and (2) of section 275 of the 1979 Constitution must be read together. In my view, it cannot be said that section 275(2) is operating independently of section 275(1) of the new Constitution. It is in this regard that I find the case of Reilly v. Regem (supra) cited to us by counsel for the defendants very instructive. I have set out above what the case decided. I need not repeat them. In the case in hand the plaintiff was a member of a constitutional body. His terms of employment were expressly made subject to the prevailing constitutional provisions. The body of which he was a member has, in my judgment, ceased to exist by virtue of a Constitutional provision. It follows, therefore, in my judgment, that the plaintiff’s appointment as a member of the defunct body must cease too as from the date the constitutional body ceases to exist that is to say as from 14th December, 1979. The appointment of the plaintiff which is protected by section 275(2) of the Constitution was dependent on the continued existence of the body of which he was a member, the existence of which body was protected by section 275(1) of the Constitution.

So if the pivot of the protection which the plaintiff claims under section 275(2) of the Constitution disappears, there is nothing on which the protection can rest.

So it will cease to be of any avail to the plaintiff. The Australian case of Bank of New South Wales v. The Commonwealth (1948) 76 C.L.R.1 referred to by learned trial Judge in his judgment appears to me to support the course I have now taken in construing section 275(1) and (2) of the Constitution as operating not independently of each other. The passage I find instructive in the Australian case is as follows:-

‘Each provision of the constitution should be regarded, not as operating independently but as intended to be construed and applied in the light of other provisions of the constitution.

In the light of what I have said above I am inclined to the view, that by virtue of the transitional provision in section 275(1) of the present Constitution the Public Service Commission of which the plaintiff was a member ceased to exist as from 14th December, 1979. And with the cessation of the existence of that body the appointment of the plaintiff as a member thereof automatically ceased.

I must however point out that I arrived at this conclusion because of the construction I put on section 275(1) of the Constitution. I have no doubt however that the learned trial Judge was right in holding that the Bendel State Law No.7 of 1980 could not bring to an end the existence of the Public Service Commission as it purported to do by section 5 of the Law in question. This is so in my view because the continued existence of the Public Service Commission was guaranteed by a Constitutional provision and there is nothing in the Constitution which provides that the Bendel State House of Assembly could by a legislative act bring to an end the existence of the Public Service Commission. It must also be appreciated that the State Civil Service Commission is established by section 178 of the new Constitution and it does not owe its existence to any legislative act of Bendel State.

What I have been saying above is enough to decide this case in favour of the defendants.” (Italics mine)

From the foregoing the short point which calls for determination in this appeal, bearing in mind the arguments put forward by learned counsel for the parties in their respective Briefs of Argument, is this. Should the provisions of sections 275(1) and 275(2) of the 1979 Constitution be read together in order to come to the right conclusion in this case?

If so, do the words “until other provisions are made” used in subsection (1) of section 275 relate to the ”function” of the office or to the office holder whose position is dealt with under subsection (2) thereof?

In my view, the phrase “until other provisions are made” used in section 275(1) relates to the function of the office and not to the office holder. To that extent, the subsection is, therefore, not relevant to the determination of the issues in this case.

The relevant sections are section 275 subsections (2), (3) and (4) which deal with the case of a public office holder who holds office by virtue of the 1964 Constitution of Bendel State. Since the appellant is one such person, I will now proceed to examine how his position is affected by virtue of the provisions of those subsections. For ease of reference, the provisions are reproduced hereunder:-

“275 (1) Any office, court of law or authority which immediately before the date when this section comes into force was established and charged with any function by virtue of any other Constitution or law shall be deemed to have-been duly established and shall continue to be charged with such function until other provisions are made, as if the office, court of law or authority was established and charged with the function by virtue of this Constitution or in accordance with the provisions of a law made thereunder.

(2) Any person who immediately before the date when this section comes into force holds office by virtue of any other Constitution or law in force immediately before the date when this section comes into force shall be deemed to be duly appointed to that office by virtue of this Constitution or by any authority by whom appointments to that office fall to be made in pursuance of this Constitution.

(3) Notwithstanding subsection (2) of this section, any person holding such office, a member of a court of law or authority, who would have been required to vacate such office, or where his membership of such court of law or authority would have ceased, but for the provision of the said subsection (2) of this section, shall at the expiration of the period prescribed therefor after the date when this section comes into force vacate such office or, as the case may be, his membership of such court of law or authority shall cease accordingly.

(4) The foregoing provisions of this section are without prejudice to the exercise of such powers as may be conferred by virtue of this Constitution or a law upon any authority or person to make provision with respect to such matters as may be prescribed or authorised by this Constitution or such law, including the establishment and abolition of offices, courts of law or authorities, and with respect to the appointment of persons to hold offices or to be members of courts of law or authorities and their removal from such offices, courts of law or authorities.” (Italics mine)

However, before dealing with the implication of the above section which I consider crucial for the determination of the issues raised in this appeal, I would like to indicate my support for the views put forward by Chief Williams that the provisions of section 274 of the Constitution not only make adequate provisions for legislative action required to effect a smooth transition from the old constitutional order to the new order, they also enable continuity of public offices existing before 1st October, 1979, in those cases where the appointments to those offices were made by “any enactment or instrument whatsoever. Therefore, Chief Williams further pointed out, and I agree with him, that since the appointment of the plaintiff/appellant was not made by any enactment but by an offer in writing and by an acceptance, also in writing by him, it is the provisions of section 275 of the Constitution and not those of section 274 which would apply.

As I have pointed out earlier, sub-section (1) of section 275 of the 1979 Constitution deals with the function of an office which was in existence by virtue of the 1964 Constitution of Bendel State. It then went on to say that such office shall be deemed to have been duly established. The same subsection (1) further provides that the office shall continue to be charged with such function “until other provisions are made, as if the office………………………… was established and charged with the said function” by virtue of the 1979 Constitution or in accordance with any law made thereunder by the Bendel State legislature. It is, therefore, clear from this breakdown that the subsection deals with the function of the office and NOT with the holder of that office. (back to top?) I must, at this juncture, point out that the word “office” is defined in section 186 as “an office in the public service of a State.” With respect, the Federal Court of Appeal was, therefore, in error when it held, as it did, that –

‘the expression ‘until other provisions are made’ in section 275(1) of the Constitution must be construed to mean, as regards the case in hand, until the State Civil Service Commission established by section 178(1)(a) of the new Constitution is activated. And the latter will come about by the appointments of the Chairman and members of the State Civil Service Commission in accordance with the provisions of section 180(1), setting down the qualifications for membership of the Commission and section 179 of the Constitution which defines the mode of the appointment.” (Italics mine)

As for the decision in Reilly v. Regem (1933) All E.R. p.179 (P.C.) which was relied upon in the lead judgment of the Court of Appeal in coming to its decision.

All that need be said is that the provision of the Canadian Pensions Act, 1930, on which the decision in that case was based (Pages 180-181 of the judgment of Lord Atkin refer), is completely different from those of sections 275(2) and (3) of the 1979 Constitution. In short, that case is completely irrelevant in coming to a decision, one way or another, in the case in hand.

Subsection (2) of section 275, on the other hand, provides that any person who holds office by virtue of the 1964 Constitution of Bendel State, such as the plaintiff/appellant, immediately before 1st October, 1979, when the 1979 Constitution came into force, shall be deemed to be duly appointed to that office by virtue of the 1979 Constitution or by the Governor of Bendel State in pursuance of that Constitution.

Subsection (3) of the same section 275 then made provisions for the term of office of the office holder whose office was saved by subsection (2) thereof. The subsection states that such office holder who would have been required to vacate such office but for the saving provision of subsection (2) shall vacate such office at the expiration of the period prescribed for the office.

The tenure of office of members of the Bendel State Public Service Commission (now deemed to be the State Civil Service Commission established by section 178 subsection (1) of the 1979 Constitution) is prescribed in section 180 subsection (1) thereof as follows:-

“180 (1) A person who is a member of any of the bodies established as aforesaid shall, subject to the provisions of this Part, remain a member thereof……

a. in the case of an ex officio member, while he holds the office by virtue of which he is a member of that body;

b. in the case of a person who is a member by virtue of his having previously held an office, for the duration of his life; and

c. in the case of a person who is a member otherwise than by an ex officio member or otherwise than by virtue of his having previously held an office, for a period of five years from the date of his appointment.” (Italics mine.)

The plaintiff/appellant’s term of office would appear to come within the provisions of section 180(1)(c) above. This subsection, to my mind, preserves the remainder of his five-year term.

Moreover, since the plaintiff/ appellant held the office of member of the Bendel State Public Service Commission by virtue of the 1964 Constitution of Bendel State, he would be deemed to have held the office, notwithstanding the change of the name of the Commission to “Civil Service Commission”, under the 1979 Constitution.

To hold otherwise, as the Federal Court of Appeal had done, would mean that what a State Chief Executive could not do to public office holders after he has been sworn-in as Governor following subsequent elections, he can do after the first gubernatorial election of 1979. To my mind, it is precisely to avoid this sort of chaotic situation and in order to preserve continuity that the provisions of section 275 subsections (2) and (3) of the 1979 Constitution were enacted and they must be construed accordingly.

This construction, of course, implies that, if the plaintiff/appellant is to be removed from office as a member of the Bendel State Civil Service Commission, he can only be lawfully removed by following the procedure laid down in section 182 of the said Constitution, a procedure which will necessarily and rightly involve the State House of Assembly. The section reads:

“182 (1) Any person holding any of the offices to which this section applies shall only be removed from that office by the Governor of that State acting on an address supported by two- thirds majority of the House of Assembly of the State praying that he be so removed for inability to discharge the functions of the office (whether arising from infirmity of mind or body or any other cause) or for misconducts.

(2) This section applies to the offices of the Chairman and members of the State Civil Service Commission, the State Electoral Commission and the State Judicial Service Commission.” (Italics mine.)

Consequently, the plaintiff’s appointment could not, and did not, cease when the new body (the State Civil Service Commission) already established by section 178 subsection (1) of the 1979 Constitution started functioning on 14th December, 1979. His purported removal from office is, therefore, void and of no effect.

Since the post held by him has been filled, the only remedy open to him, as has been rightly found by the trial judge, is in the award of damages for the breach of his contract of service as a member of the Commission.

For all the reasons which I have given above, I support the findings and conclusions of the learned trial judge that the removal of the plaintiff from office by the Governor of Bendel State constitutes a breach of his five-year contract as a member of the State’s Civil Service Commission. The Federal Court of Appeal was clearly in error when it reversed the judgment of the High Court of Bendel State.

I, therefore, allow this appeal and set aside the judgment of the Federal Court of Appeal, including the order made by the Court as to costs. I, accordingly, restore and affirm the judgment of the Benin High Court and all the consequential orders therein, including those as to costs, made by that Court.

The plaintiff/appellant is awarded costs in the Federal Court of Appeal assessed at N550.00 and in this Court at N500.00k.

SOWEMIMO, J.S.C.: I am in entire agreement with the judgment of my learned brother, Fatai-Williams, Chief Justice of Nigeria, a preview of which I have had in draft. In the lead judgment, the Chief Justice of Nigeria had carefully analysed and construed section 275 sub-sections (1) and (2) of the 1979 Constitution and pointed out the different situations under which they become applicable.

The trial Judge had construed the above two sub-sections in his judgment, and correctly interpreted them independently. He also referred to relevant sections of the Constitution. He did not, however, express himself explicitly and concisely as had been done in the lead judgment just delivered. For some reasons which did not appear in the judgments of the Federal Court of Appeal, Agbaje, J.C.A., in his judgment, with which all the other Justices agreed, concluded that section 275 subsections (1) and (2) should not be construed independently and therefore wrongly interpreted the two sub-sections, thus deciding that only section 275(1) applies to both the functions of the Commission as well as its membership. It is this erroneous view that led him to the conclusion that the Public Service Commission of Bendel State as well as members of that Commission which were protected and preserved after 1st October, 1979 by virtue of the provisions of sections 275(1) and (2) of the Constitution, ceased to function on the 14th December, 1979. The judgment inter alia reads:-

“In the case in hand the plaintiff was a member of a constitutional body. His terms of employment were expressly made subject to the prevailing constitutional provisions. The body of which he was a member has, in my judgment, ceased to exist by virtue of a constitutional provision. It follows, therefore, in my judgment, that the plaintiff’s appointment as a member of the defunct body must cease too as from the date the constitutional body ceases to exist that is to say as from 14th December, 1979. The appointment of the plaintiff which is protected by S.275(2) of the Constitution was dependent on the continued existence of the body of which he was a member, the existence of which body was protected by S. 275(1) of the Constitution. So if the pivot of the protection which the plaintiff claims under S.275(2) of the Constitution disappears, there is nothing on which the protection can rest. So it will cease to be of any avail to the plaintiff.”

There appears to me a sort of misconception in the reasonings of the learned Justices of the Court of Appeal. It is this state of misconception that the Court of Appeal concluded erroneously, that the plaintiff’s appointment had ceased to exist but not by the operation of the 1979 Constitution. This is contrary to the provisions of section 182 of the Constitution which deals with the removal of members of the Public Service Commission, now State Civil Service Commission. (See section 178 Sub-section (1)(a) of the Constitution.)

I therefore entirely agree with all what the Honorable Chief Justice of Nigeria had to say on the construction of all the relevant sections. I agree therefore that the appeal be allowed; that the judgment of the High Court of Benin be re-instated. I adopt all the consequential orders made by my learned brother, the Honorable Chief Justice of Nigeria, in the lead Judgment, as well as his award of costs.

BELLO, J.S.C.: I had a preview of the judgment delivered by my learned brother, the Chief Justice of Nigeria. For the reasons stated by him, I agree that the purported removal of the appellant from office by the Governor of Bendel State was unconstitutional and void.

I agree the appellant is entitled to compensation for the remaining term of his office. The appeal should be allowed, the judgment of the Federal Court of Appeal including the order as to costs be set aside and the judgment of the trial court be restored. I also agree with the orders as to costs.

OBASEKI, J.S.C.: I have had the advantage of reading in draft the judgment just delivered by my learned brother, Fatai-Williams, C.J.N. It fully expresses my opinions on the issues raised in this appeal and I adopt them as my own and find myself in complete agreement with my learned brother that this appeal be allowed.

A close study of our 1979 Constitution has led me to the conclusion that the text of the 1979 Constitution particularly the provisions of all the subsections of section 275 evinces the intention of the framers of the 1979 Constitution to ensure the take over of public officer serving under the old military administration and to discourage the abandonment (by each government in the Federation) of their contractual obligations to the public officers. It further shows their intention to ensure that each government in the Federation fulfils its obligations of ensuring the continuity of service of public officers it has taken over. The Constitution left no room for any government to infer that the change in administration from military to civilian administration afforded an opportunity for a purge of public officers for political reasons or for reasons other than those set out in their contract of service under the Constitution or law.

It may not be very easy to interprete section 275 of the Constitution. However, this Court does not find it difficult to understand its content and interprete its provisions and having taken time to study and to read it over and over again together with the sections immediately before and immediately after it, I find it one of the greatest charter for the security of tenure of office for public officers in the previous administration. It is to be observed that governance of this country is a continuing process and to ensure a smooth change over from the military administration to the civilian administration, the observance of contractual obligations by the new governments to public officers in the Federation were assured and their contractual rights given adequate protection by the provisions of section 275(2) and (3) of the 1979 Constitution.

The appellant’s guaranteed 5 year period of appointment was entitled to that protection since he, the appellant, comes within the definition in subsection (2) of section 275 of “Any person who immediately before the date when this section comes into force holds office by virtue of any other Constitution or law in force immediately before the date when this section comes into force” and I agree with the learned Chief Justice of Nigeria that this Court has a duty to ensure that he gets adequate compensation for the infraction of his contractual rights protected by the Constitution in keeping with the demands of justice. The Constitutional protection cannot be removed by an announcement of the revocation of the appellant’s appointment by the Secretary to the State Government over the air on the State Radio and by publication on the pages of the daily newspapers as was done in this case.

Even if the Secretary had purported to communicate the revocation directly to the appellant in writing, the delivery of such letter of revocation to the appellant, in the absence of compliance with the constitutional procedures laid down by sections 180(2) and 182(1) of the 1979 Constitution would have been of no effect. It is the duty of every government to comply with the provisions of the Constitution and to preserve, protect and defend it. To act contrary to the provisions of the Constitution will not, if properly brought to the notice of this Court, be condoned but such an act will invite the proper sanctions and reliefs. (back to top?)

For the reasons so ably set out by my learned brother, Fatai- Williams, C.J.N., in his judgment, I too would allow the appeal and I hereby allow the appeal, set aside the judgment of the Federal Court of Appeal including the order as to costs made by that Court, and restore and affirm the judgment of the Benin High Court (Uwaifo, J.) together with all the consequential orders therein including those as to costs, made by that court.

I also agree with the order as to costs in the Federal Court of Appeal and in this Court made by my learned brother, Fatai-Williams, the learned Chief Justice of Nigeria in this appeal.

ESO, J.S.C.: I have had the privilege of a preview in draft of the judgment just delivered by my learned brother Fatai-Williams, C.J.N. I agree with the reasons given by my learned brother for allowing the appeal, setting aside of the judgment of the Federal Court of Appeal and restoring the judgment of the Benin High Court.

I abide by all the orders made in the aforesaid judgment.

ANIAGOLU, J.S.C.: I am in complete and respectful agreement with my learned brother, Fatai-Williams, C.J.N., that this appeal should be allowed, the judgment of the Federal Court of Appeal set aside and the judgment of the High Court which found for the plaintiff/appellant, restored. I only add these few comments of my own by way of emphasis, because the appeal is an important one dealing with the interpretation of the Constitution in which the rights of a Nigerian citizen are involved.

The issues in this appeal appear to me simple and straightforward. There is no doubt

i. that the appellant was appointed, on 1st August 1979, a member of the Public Service Commission of Bendel State, before the coming into force of the 1979 Constitution, and for five years;

ii. that the office of the Public Service Commission of Bendel State was, by virtue of the provisions of s.275(1} of the 1979 Constitution (No.25 of 1978). One of the offices preserved by the said 1979 Constitution and deemed to have been duly established and continued by that Constitution;

iii. that the appointment of a member of the Public Service Commission is deemed to have been made and continued under the 1979 Constitution by reason of the provisions of s.275(2) of the Constitution;

iv. that having been deemed to have been appointed a member of the Public Service Commission of Bendel State under the 1979 Constitution, such a member can only be removed in accordance with the provisions laid down by the said 1979 Constitution;

v. that where the 1979 Constitution has made provisions for the removal of such a member, those provisions must be followed and any law, rules or regulations made by any person or authority, contrary to those provisions, must be declared inconsistent and void by reason of section 1(3) of the Constitution which enacts that:

“If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and the other law shall to the extent of the inconsistency be void.”;

vi. that the purported removal of the appellant from the office of a member of the Public Service Commission was not in accordance with the provisions of the 1979 Constitution, S.182(1) and (2) of which provide that:

“182. (1) Any person holding any of the offices to which this section applies shall only be removed from that office by the Governor of that State acting on an address supported by two- thirds majority of the House of Assembly of the State praying that he be so removed for inability to discharge the functions of the office (whether arising from infirmity of mind or body or any other cause) or for misconduct.

(2) This section applies to the office of the Chairman and members of the State Civil Service Commission, the State Electoral Commission and the State Judicial Service Commission.” (Italics mine)

The difference in nomenclature between Public Service Commission under the 1963 Constitution (see S.146 thereof) and State Civil Service-Commission under S.178 of the 1979 Constitution makes no difference to the survival of the institution of the Public Service Commission on the coming into force of the 1979 Constitution, the essence of the difference in the two bodies lying in the reduction of the ambit of the duties which the Public Service Commission was performing under the 1963 Constitution as against the duties now being performed by the State Civil Service Commission, but barring that reduction they are the same. In any case the reduced function cannot defeat the intention of the Constitution that the State Public Service Commission in its new name of the State Civil Service Commission should survive the Constitutional transition. (back to top?)

The argument, as I understand it, of the Federal Court of Appeal, in part, that the Public Service Commission of which the appellant was a member was properly dissolved by the new provisions of the 1979 Constitution which created the State Civil Service Commission it being, as it held, a question of one statutory provision (No.3 of 1964) being abolished by another statutory provision (S.178 of the 1979 Constitution), appears to me, with all due respect to the Court, spacious having regard to the provision in the same 1979 Constitution, of S.275.1n any case if the Government of Bendel State genuinely thought that, in spite of the said S.275 of the 1979 Constitution, the membership of the Public Service Commission of Bendel State had been duly dissolved by the 1979 Constitution, there would appear to be no reason for the Government:

i. formally announcing the abolition of the Public Service Commission in their Statutory Corporations (Revocation of Appointments of Chairman and Members) Order, 1979; and

ii. getting the State House of Assembly to enact No.7 of 1980 when the appellant’s case, as both parties informed this Court, was already being heard in the High Court of Benin.

I agree that, on a proper reading of the section, the phrase “until other provisions are made” contained in sub-section 1 of section 275 of the 1979 Constitution was, with respect, wrongly interpreted by the Federal Court of Appeal and that the phrase clearly refers to the ”function” with which the Public Service Commission was charged and not to the “Office” of a member of the public Service Commission as was held by the said Court. Equally I am in complete agreement that the Privy Council case of Reilly v. Regem (1933) All E.R. 179 has no locus in the decision of this appeal, it being, as the learned Chief Justice has stated, irrelevant.

In the result, the appellant, having succeeded in his appeal, is entitled to be paid the total sum of N57,228.00 as basic salary, housing subsidy and telephone subsidy for the unexpired term of four years and nine months as set out in the lead judgment. I abide by the order for costs as decreed in the said lead judgment.

UWAIS, J.S.C.: I had the advantage of reading in draft the judgment read by my learned brother the Chief Justice of Nigeria. I am of the same opinion. I will therefore allow the appeal and award costs as contained in the judgment,

Appeal allowed.

Appearances

 

S.A Asemota with him J.A. Awolade For the Appelants

 

Chief F.R.A Williams, SAN. with him S.D. Osakwe, Director of Legal Drafting,

Bendel State, D.E. Hayble, Deputy S-G, Bendel State, Miss F.N. Obiago, State

Counsel, Bendel State, Ladi Williams and Miss O.K. Agusto For the Respondents