IN THE SUPREME COURT OF NIGERIA
ON FRIDAY, THE 6TH DAY OF JULY 1984
STATE CIVIL SERVICE COMMISSION AND ANOR ................................... APPELLANTS
ALEXIUS IKECHUKWU BUZUGBE ........................................ RESPONDENTS
BEFORE: Bello, Obaseki, Eso, Aniagolu, Uwais, JJ.S.C.
The respondent, on 13th November 1979 had given three months notice in writing of his voluntary retirement from service. That would have brought the effective date to about 12th February 1980. But before that date, the Respondent wrote and circulated to the Governor of Bendel State and some others a letter undated in which he castigated in strong terms, the then recent appointment of permanent secretaries in the Civil Service of Bendel State. As a result, proceedings were taken against him resulting in his being reduced in rank.
A lengthy query was issued by the head of Service to the respondent to explain why he should not be disciplined. The Respondent replied the query whereupon the Head of Service, who was also said to be the departmental Head of the respondent, referred the matter to the Senior Staff Management Committee, which was headed by the same head of service, for investigation.
The Committee, under the Chairmanship of the Head of Service deliberated on the matter and returned a verdict of ‘guilty’ against the respondent. They passed a sentence of reduction in rank.
Be it noted that neither the initiation of the disciplinary proceedings, nor the return of the verdict nor the passing of the sentence was done by the state Civil Service Commission. They were brought about by the head of service the very person against whom the allegations in the offensive letter were mainly directed.
Pleadings were filed in the high Court and the Court held that the respondent had not made out his case and accordingly dismissed it. The respondent appealed to the Federal Court of Appeal which allowed the appeal.
On further appeal to the Supreme Court:
(1) The procedure adopted by the head of service was without doubt, in breach of Regulation 57 of the Bendel State Civil Service Commission Regulations 1978 and the reduction in rank of the Respondent arising therefore was clearly irregular, illegal, null and void and of no legal effect.
To secure downgrading of the appellant by a disobedience to the procedural provision for disciplining him amounts to a breach of faith with a civil servant of the employer which goes against the intendment of the pensions Act and the 1979 Constitutions.
(2) In determining the likelihood of bias the Court looks at the impressions which would be given to other people. In the instant appeal there was no positive evidence of the head of Service being biased. This, however is not necessary. The fact and circumstances of the instant case on appeal impel me to conclude that it will be super humanly impossible for the head of service to be free from bias. As I have said, positive evidence of bias is not necessary before a court should rule in favour of Respondent.
I am therefore satisfied that the Court of appeal was also right in its judgment that the head of Service was also in breach of one of the rules of natural justice that a man should not be a judge in his own cause, and that, accordingly, he ought not to have presided over the adjudications of the respondent’s matter by the disciplinary Committee, even if (which of course was not the case) that that committee was properly seized of the matter.
Accordingly this appeal must be dismissed and is hereby dismissed.
G.O.U. Okunbowa, Director of Civil Litigation Bendel State for the Appellant.
C.O.U. Ihensekhien with him C.A. Adoga for the Respondent.
Cases referred to:
(1) Adedeji v. Police Service Commission (1967) 1 All NLR 67.
(2) Calvin v. Cavor (1979) 2 WLR 755.
(3) Deduna & Ors v. Okorodudu & Ors. (1976) 9 & 10 Sc 329 at 346.
(4) Ex parte Kubeinje (1974) 11 SC 79.
(5) Grunmick Processing Laboratories Ltd v. Acas (1978) AC 655 at 691-692.
(6) Howard Bodington (1877) 2 PD 203 at 211.
(7) Kanda v. Government of Malaya (1962) AC 322.
(8) Metropolitan Properties v. Lannon 1969 Q.B.577 at 599.
(9) Obadena & Ors v. Commissioner of Police (1965) NMLR 35 at 44.
(10) Obadena & Ors v. Commissioner of Police (1965) NMR 39 at 44.
(11) Oguche v. Kano State Public Service Commission (1974) WMLR 128.
(12) Russell v. Duke of Norfolk & Ors (1949) All ER 109 at 118.
(13) Spicer v. Holt (1977) AC 987.
Statutes referred to:
(1) Bendel State Public Civil Service Commissions Regulations 1978.
(2) Constitutions of Federal Republic of Nigeria 1979.
(3) Pensions Act 1979.
Aniagolu, J.S.C. An incident occurring towards the end of a thirty years career of the respondent who was a Civil Servant under the Bendel State Government produced a chain reaction which has sparked off these proceedings in which the respondent, ALEXIUS IKECHUKWU BUZUGBE sued the Bendel State Civil Service Commission and the Bendel State Head Civil Service claiming:
“(a) A declaration that he has duly retired from the Public Service of Bendel State as Administrative Officer Grade I on annual salary of
(b) A declaration that the purported reduction in rank of the plaintiff from Administrative Officer Grade 1 to Administrative Officer Grade 11 was and is unlawful, null and void.
(c) A declaration that the plaintiff is entitled to be paid all his dues on voluntary retirement as Administrative Officer Grade 1 on salary grade level 15 and that is to say
N11,328 per annum.
(d) An order for the payment of all his correct dues.
N29,932 Gratuity and N566.40 monthly pension worked out as follows:
Annual leave entitlement
Payment in lieu of Pre-retirement
Normal pension per month
Reduced pension per month
Loss of pension per month
Dated at Benin City this 22nd day of April, 1980.”
The respondent, on 13th November 1979, had given three months notice in writing. (See exhibit B5) of his voluntary retirement from service, to the government, through the Head of Service. That would have brought the effective date to about 12th February 1980. But before that date, the respondent wrote and circulated to the Governor of Bendel State and some others a letter undated (Exhibit B8, hereinafter sometimes referred to as “the offensive letter”) in which he castigated, in strong terms, the then recent appointments of Permanent Secretaries in the Civil Service of Bendel State. As a result, proceedings were taken against him resulting in his being reduced in rank, (see exhibit B3) on 11th February 1980, from Administrative Officer Grade I (Grade Level 15), to Administrative Officer Grade II (Grade Level 14), one day before his voluntary retirement would have taken effect. These constituted the “incident” about which I had earlier referred.
A few excerpts from the eleven-paged offensive letter will show how virulent the Respondent was in his condemnation. The target of his attack was mainly the Head of Service of the Bendel state Government. In paragraph 3 of the letter the Respondent wrote:
“3. I, for one, have decided to retire Voluntarily from the Bendel State Civil Service. I have put in a notice of retirement which takes effect from 13th February 1980 and characteristic of me I had wanted to take my exit without a murmur. But as a true Bendelite and experienced career civil servant, patriotism demands that I should reach the Governor through this medium for record purposes in order to tell him that the Bendel Civil Service as it is now constituted is terribly sick and riddled with injustices, contradictions and anomalies which, if not quickly attended to, may do irreparable damage to the body politic of the state and the welfare of our peoples.”
The respondent continued and drew the Governor’s attention to the “traumatic inherent defects” in the Bendel Civil Service which, he wrote, were caused:
“by men of “little minds” who through various gimmicks and artful devices bothering (sic) on pure sycophancy, blackmailing, bare-faced “lying masqueraded under pretentious religiosity entrenched them-selves into positions of authority to steer the destiny of the Bendel Civil Service.”
Continuing, the respondent opined:
“If it were possible for His Excellency to call for the confidential files of these fake “Saints” and “Advisers” since they started their career in the Civil Service of the old Western Region till date, His Excellency would have realised the terrible error of judgment he was led into by appointing the present men who now make recommendations to him as to who should be appointed or not to be appointed as Permanent Secretaries in the Bendel State Civil Service.”
At paragraph 4, the respondent made reference to an adage and stated:
“4. There used to be an old saying that when the source of a stream is muddy the whole water of the entire stream will be unfit for drinking. Your Excellency, the men you have appointed to lead your civil service have carefully and cleverly hand-picked their minions for your ratification as Permanent Secretaries, satisfied in the belief that only these “boys” could minister to their dastardly requirements. The import of this is obvious.”
It was in this vein that the respondent continued, to the end, his 11-paged-letter, highly critical of the Head of Service of Bendel State. It goes without saying that, naturally, the Head of Service would not have taken kindly to the contents of the offensive letter.
A lengthy query CPE.52/223 dated 29th January 1980 (exhibit B6) was issued by the Head of Service to the respondent to explain why he should not be disciplined. It was signed “for the Head of Service” by one J. Ifidon-Ola.
The respondent replied the query whereupon the Head of Service, who was also said to be the departmental Head of the Respondent, referred the matter to the Senior Staff Management Committee, which was headed by the same Head of Service, for investigation. This Committee, under the Chairmanship of the Head of Service, deliberated on the matter and returned a verdict of “guilty” against the respondent. They passed a sentence of ‘Reduction in Rank’ against him for which a letter CPE.52/T/2 dated 11th February 1980 (exhibit B4) was promptly issued to him. Again, the letter was signed by “E. O. Aimufua for Head of Service.”
Be it noted that neither the initiation of the disciplinary proceedings nor the return of the verdict nor the passing of the sentence was done by the State Civil Service Commission. They were brought about by the Head of Service–the very person against whom the allegations in the offensive letter were mainly directed.
Pleadings were filed as ordered by Court. At the end of his statement of claim the respondent alleged that:
“1. At all material times at Benin City within the Benin Judicial Division until the 11th of February, 1980, the plaintiff was an Administrative officer Grade 1 in the Public Service of Bendel State.
2. On the 13th day of November, 1979, the plaintiff, as he was entitled to do, at Benin City, delivered to the defendants a three month notice of his intention to retire from the said office by reason whereof he ceased to be a member from 13th day of February, 1980.
3. Nevertheless, on the 11th day of February, 1980, the defendants through letter No. CPE.52/7/2 wrongfully purported to reduce the plaintiff in rank from Administrative Officer Grade I, grade level 15 on annual salary of N 11,328 on the ground that he wrote and published a paper titled ‘Ridiculous Appointments in the Recent Posts of Permanent Secretaries in the Bendel State Civil Service’ and they have wrongfully refuse to pay to him his lawful and proper entitlements.”
The case went for hearing in the Benin High Court before Uwaifo, J., who, at the end of trial, held that the respondent had not made out his case and, accordingly, dismissed it with
The respondent appealed to the Federal Court of Appeal which, on 28th April 1983, allowed the appeal (Abai Ikwechegh, J.C.A.), set aside the judgment of the Benin High Court, and entered judgment for the respondent in the sums claimed with
N300.00 costs for the High Court proceedings and N200.00 costs for those of the Federal Court of Appeal. From this judgment of the Federal Court of Appeal the State Civil Service Commission and the Head of Service have now appealed to the Supreme Court.
Appellants filed five grounds of appeal all of which complained that the Federal Court of Appeal “erred in Law” in some passages of their judgment which were set out, with particulars. For easy reference these grounds of appeal read:
GROUNDS OF APPEAL:
1. The Learned Justices of the Federal Court of Appeal erred in law when they held:–I therefore hold that the final pay in the instant case of the appellant would be the Salary that the appellant earned at the date he completed the 30th year of service that is on 1st January, 1980.
PARTICULARS OF ERROR
(i) The respondent was still in the service of the Bendel State of Nigeria up till 12th day of February 1980.
(ii) The final pay of the respondent is the Salary he earned as at 12th day of February 1980.
The learned Justices of the Federal Court of Appeal erred in law when they held:
‘If the appellant had got a rise in Salary during this period of 1 month 12 days extra time after 30 years in my view, this would not have come in for notice or in his favour under B Schedule 1 of the 1979 Act’.
PARTICULARS OF ERROR
(i) The ‘final pay’ of the respondent which is the salary he earned on his last day at work seems to be confused with computation of his pensions and gratuity.
(ii) The Pensions Act 1979 defines ‘Final Pay’ as the salary at last day at work.
(iii) There is uncontradicted (sic) evidence before the court that an increase in salary on promotion to a Higher grade or decrease in salary due to reduction in rank of the respondent between 1st of January 1980 and 12th February 1980 would have been taken into consideration in the computation of the respondent pensions and gratuity (sic).
The Learned Justices of the Federal Court of Appeal erred in Law when they held:
‘He then held the substantive rank of Administrative Officer Grade 1 on grade Level 15 Salary. This may not be altered to his disadvantage except to such extent as is permissible under andy (sic) law... as section 190(2) of the constitution of Nigeria 1979 guarantees this. It was in my view therefore wrong for the trial Judge to have held that the last substantive rank held by appellant was administrative Officer Grade II and his salary on retirement was grade Level 14 step 1’.
The Learned Justices of the Federal Court of Appeal erred in Law when they held:
‘If the wrong body had carried out any investigation and if the investigations had not been directed by the Civil Service Commission under regulation 57(b)(ii) there could not be any proper report made to the commission under Regulation 57(c)’.
PARTICULARS OF ERROR
(i) Regulation 57 of the Public Service Regulation 1978 does not provide that the investigation should be directed by Civil Service Commission in a situation such as this.
(ii) Regulation 40 of the Public Service Regulations 1978 which the Justices held was inapplicable is the one which provides that the proceedings for disciplinary action should commence with the Civil Service Commission.
The Learned Justices of the Federal Court of Appeal erred in law when they held:
‘for in my view the Head of Service did not comply with Regulation 57 of the Bendel State Public Service Commission Regulations 1978 and he could well be said to have been a judge in his own cause by sitting over the brief he had sent to the committee to inquire into, and had done things that he should not have done under Regulation 57 and failed to do properly those he set out to do.’
PARTICULARS OF ERROR
“(i) The Head of Service was bound by law i.e. the Bendel State Public Service Regulation 57 of 1978 to do what he did.
(ii) The Senior Staff Management Committee was an advisory committee and was not set up to inquire (sic) into the misconduct of the respondent.
(iii) The Head of Service did not by law have the final say in the disciplinary action against the respondent. The Public Service Commission had the last say in the disciplinary action and so the Head of Service could not have been a judge in his own cause.”
Mr. Okungbowa, Director of Civil Litigation, who appeared for the Appellants, argued grounds 1, 2 and 3 together. He also argued grounds 4 and 5 together. Mr. Ihensekhien, for the Respondent, followed the same pattern in presenting his arguments. Broadly speaking grounds 4 and 5 of the grounds of appeal deal with the applicability, to the facts in issue, of Regulations 40 and 57 of the Bendel State Civil Service Regulations, 1978 which mainly concern procedure for disciplinary proceedings; while grounds 1, 2, and 3 deal with the proper construction of what was the last pay of the Respondent for the computation of his gratuity, pensions and other retiring benefits, having regard to the provisions of the 1979 Constitution and the Pensions Act of 1979. Implicit in grounds 4 and 5 is the argument as to the propriety of the procedure under which the respondent was carpeted and the personal involvement of the Head of Service in the disciplinary proceedings against the respondent when, indeed, the Head of Service was the subject of the attack, by the respondent, in the offensive letter complained of. Summarized, the issues may be grouped in three compartments:
(1) Was the procedure adopted in disciplining the respondent the proper Procedure under the Bendel State Civil Service Commission Regulations?
(2) Had natural justice been transgressed?
(3) What was the last pay of the respondent for the purpose of computing his gratuity and other retiring benefits?
There is no dispute, and this is conceded on all sides, that had the respondent retired, pursuant to his three months notice of voluntary retirement of 13th November 1979, without the disciplinary proceedings against him resulting in his reduction in rank the subject–matter of this appeal, he would have been entitled to the gratuity and other financial rewards as contained in his writ of summons and which I have set out at the beginning of this judgment.
The questions now pose themselves: Can the disciplinary proceedings pass the legal test as enunciated in relevant legal principles? Was the Federal Court of Appeal right in setting aside the judgment of the trial Court and finding for the respondent?
Section 190(1) and (2) of the 1979 Constitution have entrenched the confidence and the good faith which a serving officer, in the public service of a State, expects from the State on the determination of his service, after years of labour and toil and faithful service. The provisions read:
(1) Subject to the provisions of subsection (2) of this section, the right of a person in the public service of a State to receive pension or gratuity shall be regulated by law.
(2) Any benefit to which a person is entitled in accordance with or under such law as is referred to in subsection (1) of this section shall not be withheld or altered to his disadvantage except to such extent as is permissible under any law, including the Code of Conduct.” (Italics mine).
The Pensions Act, 1979, No.102 of 1979, has made provisions for the computation of pensions and gratuity due to retiring officers of the public service of the Federation. Section 1 (1) thereof provides that:
(1) Subject to this Decree, any pension or gratuity granted hereunder to any person on his retirement from the public service of the Federation shall be computed on the final pay of the person entitled thereto and in accordance with the provisions of Schedule 1 to this Decree.”
The term “final pay” is defined in S.24 of the Act as follows:
“Final pay” in respect of an officer whose appointment has terminated means the amount payable to him for a month (or if he was on a daily rate of pay for thirty-one days) multiplied by 12 in respect of the last substantive rank held by him immediately before the end of his service;”
Emphasis must be laid upon those words in S.190(2) of the Constitution, namely:
“... shall not be withheld or altered to his disadvantage except to such extent as is permissible under any law....”
Having carefully gone through the record of proceedings I think that, on the evidence, there is ample justification for the statement of Ikwechegh, J.C.A., in his judgment, that:
“It seems to me that the purpose of the disciplinary action was to victimize the appellant by reducing him in rank and salary just as he was quitting the public service and with the settled aim of penalising him for life by paying him diminished pension.”
This conclusion becomes obvious when one reviews the set–up of the disciplinary proceedings instituted against the Respondent against the background of the provisions of the Bendel State Civil Service Commission Regulations 1978 which bind all civil servants of Bendel State including the Respondent. Regulations 40 and 57 are the two regulations to which attention has been focused, it being said that they were not observed. Regulation 40 reads:
“40. In any case which comes to the attention of the Commission, if the Commission is of the opinion that disciplinary proceedings should be instituted against an officer, the Commission may, subject to the provisions of regulation 43 but notwithstanding any other provisions of these Regulations, direct the Head of Department to initiate such proceedings in accordance with these Regulations or itself initiate proceedings in that behalf in such manner as it thinks fit.”
Under this regulation, the Civil Service Commission directs a Head of Department to initiate proceedings upon certain matters concerning a public officer coming to its attention. It is all agreed in this appeal that it was not the Bendel State Civil Service Commission (hereinafter referred to simply as “the Commission”) which directed the Head of Service to initiate the disciplinary proceedings the subject–matter of this appeal. It is to Regulation 57 that the appellants could have turned to for any possible succour. Regulation 57 is set out as follows:
“57. Whenever a Head of Department considers it necessary to institute disciplinary proceedings against an officer confirmed in pensionable post and he is of the opinion that the misconduct alleged against the officer is not such as would, if proved, justify the officer’s dismissal from the public service, the following shall apply.
(a) The Head of Department shall report the case together with a statement of his opinion and the reasons for it to the Commission.
(b) If the Commission agrees with the opinion of the Head of Department the Commission may:
(i) decide the issue;
(ii) direct the Head of Department to cause an investigation to be made into the matter by an officer holding powers of inquiry in such manner as it shall think fit; or:
(iii) if it considers the circumstances to have been sufficiently established by other proceedings under these Regulations or otherwise, direct the Head of Department to call upon the officer to submit representation as to why he should not be punished. Provided that in such case the accused officer shall be entitled to know the whole case against him and shall have an adequate opportunity of making his defence.
(c) The Head of Department shall forward to the Commission the report of any such investigation, and any representations submitted by the accused officer, together with the Head of Department’s recommendations as to the punishment, if any, other than dismissal, which he considers should be inflicted upon the accused officer.
(d) The Commission’s decision on each allegation made against the accused officer (but not the reasons for the decision) shall be communicated to him.”
From the above it can be seen that the Head of Department, having satisfied himself that disciplinary proceedings should be taken, reports the matter, with comments as to his opinion, to the Commission which, on getting the report,
(i) could decide the issue by itself, or
(ii) direct the Head of Department to appoint an officer holding powers of inquiry to investigate, or
(iii) direct, in appropriate circumstances, the Head of Department to call upon the officer to submit representation as to why he should not be punished.
Where the officer has been asked to submit his representation, the Head of Department must forward, to the Commission, that representation, together with his own comments as to the punishment he recommends should be meted to the officer. The proviso to the said regulation makes it clear (consonant with natural justice) that the officer must be made aware of the “whole case against him” and offered opportunity to make his defence.
Against the above provisions of Regulation 47 what did the Head of Service (who is also accepted to be the Head of Department of the respondent) in this appeal, do?
Without reporting to the Commission as required by the regulation,
(i) he empanelled a body of senior officers called “Senior Staff Management Committee” which committee did not qualify as “an officer holding powers of inquiry” under regulation 57;
(ii) he chairmanned the said Committee and deliberated on the matter;
(iii) the Committee, contrary to the requirement of the proviso to the regulation 57, did not invite the Respondent to defend himself before them;
(iv) contrary to Regulation 57, the Committee after deliberations, did not forward their report to the Commission for the Commission to decide but proceeded to reduce the Respondent in Rank.
It is not difficult to see why the Head of Service felt he had to take the short–cut in dealing with the Respondent. Time was against him. The respondent was to retire on 13th February 1980–a few days more. It was necessary for him that action be completed before that day–before his gratuity and retiring benefits vested. And so, in an eagerness to beat the deadline, the Head of Service rushed aside all restraint, all procedure and all natural justice and bulldozed his way, carrying with him the nodding acquiescence of the Members of the Senior Staff Management Committee, to 11th February 1980–a day before the due date–when he thrust into the hands of the Respondent the deadly warrant of his reduction in rank, namely, exhibit B16.
Instances may exist where short–cuts may prove invaluable and achieve their objectives. It is, however, generally to be recognised that in legal matters and particularly in matters of natural justice, short–cuts many times prove counter–productive, by short–circuiting legal norms and norms of natural justice, and rendering the whole exercise a futility. In that case the short–cut becomes the ineffective longer route.
The procedure adopted by the Head of Service was, without doubt, in breach of Regulation 57 of the Bendel State Civil Service Commission Regulations 1978 and the “Reduction in Rank” of the Respondent arising therefrom was clearly irregular, illegal, null and void and of no legal effect. It appears to me that this is an instance in which obedience to procedural provision in an enactment is mandatory, having regard to the general object intended to be secured by the enactment. To secure the downgrading of the appellant by a disobedience to the procedural provision for disciplining him amounts to a breach of faith with a civil servant by the employer which goes against the intendment of the Pensions Act and the 1979 Constitution. (See: The principles laid down in Howard v. Bodington (1877) 2 PD.203 at 211; Spicer v. Holt (1977) A.C. 987; Grunwick Processing Laboratories Ltd. v. ACAS (1978) A.C. 655 at 691–692).
It has been recognised by this Court, which in S. O. ADEDEJI v. POLICE SERVICE COMMISSION (1967) 1 ALL N.L.R. 67 followed the decision of Tucker L. J. in Russell v. Duke Of Norfolk And Others (1949) 1 All E. R. 109 at 118, that the requirement of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the Tribunal is acting, the subject–matter that is being dealt with and, if I may add, on a whole host of other facts and circumstances.
In the instant appeal, the complainant in respect of the conduct of the Respondent was, indeed, the Head of Service against whom mainly the Respondent had written his offensive letter. If the matter had come before a court of law in its civil jurisdiction, the Head of Service would properly be described as the plaintiff while the respondent would be defendant. The court would then be the third party acting as adjudicator.
Instead, the Head of Service, in the disciplinary proceedings, assumed the chairmanship to try the respondent. I think the lead judgment of the Court of Appeal (Abai Ikwechegh, J.C.A.) properly pinpointed the issue in that part of its judgment where it said:
“Let it not be forgotten even for a while that the ‘unsavoury things’ said to have been contained in the document issued by the appellant were directed, in part, against the Head of Service. In my view the risk of bias or the likelihood of prejudice was very real;...”
The Head of Service was clearly a judge in his cause. He had breached the rule of natural justice that a person may not be a judge in his own cause (nemo judex in causa sua). And being a judge in his own cause, there was, in this case, a real likelihood of bias. The laws of all civilized countries accept this to be true. In OBADARA and others v. COMMISSIONER OF POLICE (1965) N.M.L.R. 39 at 44 Brett, Ag. C.J.N., delivering the judgment of the Supreme Court, stated that:
“The principle that a judge must be impartial is accepted in the jurisprudence of any civilised country and there are no grounds for holding that in this respect the law of Nigeria differs from the law of England or for hesitating to follow English decisions.”
In determining the likelihood of bias the Court looks at the impression which would be given to other people. In the instant appeal there was no positive evidence of the Head of Service being biased. This, however, is not necessary. The facts and circumstances of the instant case on appeal impel me to conclude that it would be super–humanly impossible for the Head of Service to be free from bias. As I have said, positive evidence of bias is not necessary before a court should rule in favour of the respondent. The decisions of Lord Denning in METROPOLITAN PROPERTIES v. LANNON (1969) 1 Q.B. 577 at 599 and, earlier in 1962, in KANDA v. GOVERNMENT OF MALAYA (1962) A.C.322 at page 337 make this clear. The principle has been accepted by this Court in DEDUWA And Others v. OKORODUDU And Others (1976) 9 and 10 S.C.329 at 346 to 349, a case in which METROPOLITAN PROPERTIES v. LANNON (supra) was cited with approval.
Said Lord Denning in Metropolitan Properties v. Lannon at 599
“In considering, whether there was a real likelihood of bias, the court does not look at the mind of the justice himself or at the mind of the chairman of the tribunal, or whoever it may be, who sits in a judicial capacity. It does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other. The court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless, if right–minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then, he should not sit. And if he does sit, his decision cannot stand...Nevertheless, there must appear to be a real likelihood of bias.
Surmise or conjecture is not enough...There must be circumstances from which a reasonable man would think it likely or probable that the justice, or chairman, as the case may be, would, or did, favour one side unfairly at the expense of the other. The court will not enquire whether he did, in fact, favour one side unfairly. Suffice it that reasonable people might think he did. The reason is plain enough. Justice must be rooted in confidence; and confidence is destroyed when right–minded people go away thinking: ‘That judge was biased.’“
In the earlier KANDA case, at p.337 Lord Denning had this to say:
“The court will not inquire whether the evidence or representations did work to his prejudice. Sufficient that they might do so. This court will not go into the likelihood of prejudice. The risk of it is enough.”
I am therefore satisfied that the Court of Appeal was also right in its judgment that the Head of Service was also in breach of one of the rules of natural justice that a man may not be a judge in his own cause and that, accordingly, he ought not to have presided over the adjudication of the respondent’s matter by the disciplinary committee, even if (which, of course, was not the case) that committee was properly seized of the matter.
I now turn to the question of the respondent’s final pay and what he was entitled to, as his gratuity and other retiring benefits, based on his final pay in accordance with S.(1) of the Pensions Act, 1979.
Sub–section 2(b) of the said S.1 prescribes that in computing the pensionable service and qualifying service for the purpose of the Act,
“any period of service (other than war service) over six months and not included in a completed year shall, for the purposes of Schedule 1 to this Decree as relates to officers entitled to a pension, count as one year.”
The reduction in rank of the respondent having been held null and void, it is deemed not to have occurred and, therefore, the status of the respondent as at 13th February 1980 was still Administrative Officer Grade 1. By sub–section (2) (b) above, a period of service of over six months is counted as one year. A period of six months or under must be ignored. Calculations are made on completed years and not fractions thereof, and these calculations are made in accordance with Table A or Table B of Schedule 1 of the Act according as the officer retired between 1974 and 31st March 1977 (Table A–see S.3(3) (b) of the Act) or after 31st March 1977 (Table B–see S.3(5) ibid.).
The respondent completed 30 years in the service, on 1st January 1980. The actual date he left the service was on 13th February 1980. Between 1st January 1980 and 13th February 1980 is only one month and 13 days–a period which under sub–section 2(b) of the Act, must be ignored as not being “over six months.”
The respondent’s entitlements were, I am satisfied, correctly calculated by the Court of Appeal which rightly, in my view, granted all the declarations sought by him. I must, however, point out that the total amount claimed by the respondent under “GRATUITY” was
N29,932.00 and not N29,930.00 as put down in the Court of Appeal judgment. That is only a difference of N2.00 (two naira) but the respondent is entitled to that N2.00.
Accordingly, this appeal must be dismissed and is hereby dismissed, the judgment of the Court of Appeal is hereby upheld and all the declarations and financial awards under gratuity and pension, granted by that Court to the Respondent, are hereby confirmed.
The respondent must have the costs of this appeal which I assess at
Bello, J.S.C. I had a preview of the judgment of my learned brother, Aniagolu J.S.C. with which I entirely agree. The reduction in rank of the respondent was done in contravention of the Public Service Commission Regulations and the principle of natural justice. The appeal is dismissed and I affirm the judgment of the Court of Appeal. The respondent is entitled to
Obaseki J.S.C. I have had the advantage of reading in draft the judgment just delivered by my learned brother, Aniagolu, J.S.C. and find myself in complete agreement with his opinions on all the issues raised in this appeal. Two matters however deserve my supporting comments, if for nothing else, for emphasis. They are:
(1) The obvious breach of the rules of natural justice and Regulation 57 of Bendel State Public Service Commission Regulation by the Head of the Civil Service; and
(2) The failure of the State Civil Service Commission to correct the breach.
The respondent, an old seasoned civil servant who had put in 30 years service in the administrative sector of the civil service and had risen to the rank or status of Administrative Officer Grade 1, Grade Level 15 at an annual salary of
N11,328.00 received the rudest shock of his life when he was down graded to the status of Administrative officer Grade 11. Grade Level 14 shortly before the expiry of his notice of retirement, i.e. one day to the date of his retirement. This step was taken as a result of the objection by the Head of the State Civil Service to an offensive letter written by the respondent addressed to the Governor of Bendel State, exhibit B8 and circulated to others, in which he ventilated or aired his critical views of the error of judgment in the selection of candidates for the appointment of Permanent Secretaries made by the Executive Governor soon after taking office in 1979. His criticisms centred on the quality of advice given by the Head of the Civil Service. He portrayed the advice as biased, dishonest, misleading and disloyal. More particularly paragraphs 3 and 4 of the letter read:
“3. I, for one, have decided to retire voluntarily from the Bendel State Civil Service. I have put in a notice of retirement which takes effect on the 13th February, 1980 and characteristically of me I had wanted to take my exit without a murmur. But as a true Bendelite and experienced career civil servant, patriotism demands that I should reach the Governor through this medium for record purposes in order to tell him that the Bendel Civil Service as it is now constituted is terribly sick and riddled with injustices, contradictions, anomalies which, if not quickly attended to, may do irreparable damage to the body politic of the State and the welfare of our people...If it were possible for His Excellency to call for the confidential files of these fake ‘saints’ and ‘advisers’ since they started their career in the Civil Service of the old Western Region till date, His Excellency would have realised the terrible error of judgment he was led into by appointing the present men who now make recommendations to him as to who should be appointed or not to be appointed as Permanent Secretaries in the Bendel State Civil Service.
4. There used to be an old saying that when the source of a stream is muddy the whole water of the entire stream will be unfit for drinking. Your Excellency, the men you have appointed to lead your civil service have carefully and cleverly hand-picked their minions for your ratification as Permanent Secretaries, satisfied in the belief that only these ‘boys’ could minister to their dastardly requirements. The import of this is obvious.”
This was the tenor of the letter through and through.
Such a letter that calls the loyalty of the Head of the Civil Service and other advisers into question, of necessity, demanded investigation and the motive of the author be enquired into.
The facts of the case which have been fully set out by my learned brother, Aniagolu, JSC., disclosed that an inquiry was conducted and the penalty that gave rise to these proceedings imposed. The facts disclosed that the Head of the State Civil Service played a prominent role in the conduct of the inquiry and that the result of the enquiry disclosed that the respondent was adjudged guilty and punished with reduction in rank from Grade Level 15 to 14. The State Civil Service Commission, the first appellant herein failed to observe the serious breach of the rules of natural justice by the Head of the State’s Civil Service and regulation 57 in the matter before taking action to the prejudice of the respondent by reducing him in rank as aforesaid.
The test to be applied as a guide is whether after both stages, i.e. the inquiry before the Senior Staff Management Committee over which the Head of the State’s Civil Service presided and that before the State Civil Service Commission, the respondent had had a fair deal of the kind he bargained for in the Civil Service of Bendel State. It is obvious from regulation 57 that the action taken by the Civil Service Commission must be preceded by and influenced by the action taken by Head of the State’s Civil Service. Can one say that the hearing before the Civil Service Commission of the State constituted a hearing de novo untainted with the bias of the Senior Staff Management Committee over which the Head of the Civil Service presided? I think not. The impression conveyed by the proceedings is that the respondent had not had a fair deal of the kind he had bargained for and which the Rules and Regulations in the Civil Service are designed to ensure and make available. The Senior Staff Management Committee is a body that has no legal standing under the Public Service Commission Regulations. I agree with the opinion of Ikwechegh, J.C.A. in his judgment that it is clearly wrong for the Head of Service to have referred the misconduct issue to the Senior Staff Management Committee which is not “an officer holding powers of inquiry under these Regulations.”
In Calvin v. Carr (1979) 2 WLR. 755, the privy Council dealing with a similar complaint of breach of the rules of natural justice held that “although there was no general rule as to whether appellate proceedings could cure a defect due to a failure of natural justice in original proceedings, there was a broad spectrum of domestic proceedings between those where the inquiry stage could be said to have merged in the appellate stage and those where a complainant might be prejudiced unless he had a fair trial at both stages where a person who had joined an organisation or contract was to be taken to have agreed to accept a fair result reached after a consideration of the case on its merits; that the test was whether after both original and appellate stages the complainant had had a fair deal of the kind he had bargained for when joining the organisation or contract.”
If as exhibit B8 shows the Head of the Civil Service is the Principal target of the respondent’s complaint, by presiding as chairman over the committee of investigation he set up, he has breached the first of the two rules of natural justice, i.e. nemo judex causa sua.
If as the evidence shows, the Committee had no legal status and/or jurisdiction to conduct the enquiry and neither contacted nor heard from the respondent or heard him in defence of the charges they preferred against him, they breached the second rule of natural justice to wit: audi alteram partem. These two rules constitute the pillars on which the concept of justice in law depends. Of this, Lord Denning in Kanda v. Government of Malaya (1962) AC 322 (PC) said at P. 337:
“In the opinion of their Lordships, however, the proper approach is somewhat different. The rule against bias is one thing. The right to be heard is another. These two rules are the essential characteristics of what is often called natural justice. They are the twin pillars supporting it. The Romans put them in the two maxims: Nemo judex causa sua and audi alteram partem. They have recently been put in the two words Impartiality and Fairness. But they are separate concepts and are governed by separate considerations. In the present case, Inspector Kanda complained of a breach of the second. He said that his constitutional rights had been infringed. He had been dismissed without being given a reasonable opportunity of being heard.”
Elaborating on the right to be heard, Lord Denning said:
“If the right to be heard is to be a real right which is worth anything it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him, and then he must be given an opportunity to correct or contradict them. This appears in all the cases from the celebrated judgments of Lord Loreburn, LC. in The Board of Education v. Rice down to the decision of their Lordships’ Board in Ceylon University v. Fernando. It follows therefore that the judge or whoever has to adjudicate must not hear evidence or receive representation from one side behind the back of the other. The court will not inquire whether the evidence or the representation did work to his prejudice. The risk of it is enough. No one who has lost a case will believe he has been fairly treated if the other side has had access to the judge without his knowing.”
(1) Obadara 6 Ors. v. Commissioner of Police (1965) NMLR 35 at 44.
(2) Ex Parte Kubeinje (1974) 11 SC. 79.
(3) Oguche v. Kano State Public Service Commission (1967) NMLR. 128
(4) Adedeji v. Police Service Commission (1967) 1 All NLR. 67.
(5) Deduwa & Ors. v. Okorodudu & Others (1976) 9 & 1O SC. 329 at 346.
Applying these principles, I am of the opinion that the respondent, Alexius Ikechukwu Buzugbe was not given the reasonable opportunity of being heard. His reduction in rank was therefore not a result of an impartial inquiry or hearing devoid of any breach of the rules of natural justice and as therefore null and void and of no effect.
The Federal Court of Appeal was therefore perfectly justified in so holding and reversing the judgment of the High Court (Uwaifo, J.) dismissing the claims of the respondent.
In concurrence with my learned brother, Aniagolu, JSC. I too would dismiss the appeal and I hereby dismiss it with costs assessed at
Eso, J.S.C. The judgment which has just been delivered by my learned brother Aniagolu, J.S.C. was shown to me in draft.
I agree entirely with the reasoning of, and conclusion reached by my learned brother. I have no difficulty in dismissing the appeal and abiding by the order made by my learned brother.
The point I intend to comment upon is the issue of natural justice. The facts of the case are such that appeal must succeed or fail on whether the disciplinary proceeding against the respondent was valid or void. The facts, as well presented in the judgment of learned brother, are clear and glaring. The respondent addressed what, by any standard, could be regarded as a virulent attack on the Head of Service. The Head of Service was as would be expected, personally aggrieved. But what would the respondent lose? He had already given notice of voluntary retirement to expire by 13th February, 1980. Before he gave his notice of voluntary retirement on 13th November, 1979, he had administered that parting shot by an undated letter wherein he castigated the Head of Service.
The Head of Service, who would not be passive about the incident, ordered a lengthy query against the respondent requiring him to show cause why he should not be disciplined. Upon a reply to the query the Head of Service set up proceedings before the Senior Staff Management Committee under his chairmanship, and the body having deliberated upon the issue, found against the respondent. This was meant to hurt the respondent in so far as his retirement benefits are concerned. The Head of Service, by virtue of his being the complainant, the judge and the executor of the sentence shows at the least likelihood of bias. I say at least, for it would appear to me that the picture painted by his action is not only likelihood of but real bias against the respondent. He meant to punish the respondent and did punish him for his audacity to “beard the lion in his den.”
To avoid a proceeding of this nature there must be a real likelihood and to determine a real likelihood of bias it is sufficient if a reasonable person has cause to believe that upon the facts there is that likelihood of bias. Indeed the person against whom it is decided that there is a likelihood of bias may be the fairest mind alive. He may even in the circumstances have exhibited no bias at all. The test is what a reasonable person believes.
In this case it is patent that there is a likelihood of bias and the punishment of reduction meted to the respondent is void.
For all the reasons so well stated in the judgment of my learned brother I too will dismiss this appeal with costs as assessed in the aforementioned judgment of my learned brother.
Uwais, J.S.C. I have had the opportunity of reading in draft the judgment of my learned brother Aniagolu, J.S.C. I agree with the judgment and the order made therein.