IN THE SUPREME COURT OF NIGERIA HOLDEN AT LAGOS
CITATION: (1980) 5-7 S.C.
ATANDA FATAYI- WILLIAMS, CHIEF JUSTICE OF NIGERIA
AYO G. IRIKEFE, JUSTICE, SUPREME COURT
MOHAMMED BELLO, JUSTICE, SUPREME COURT
CHUKWUNWEIKE IDIGBE, JUSTICE, SUPREME COURT
ANDREWS O. OBASEKI, JUSTICE, SUPREME COURT
KAYODE ESO, JUSTICE, SUPREME COURT
ANTHONY N. ANIAGOLU, JUSTICE, SUPREME COURT
DR. O.G. SOFEKUN APPELLANT
1. CHIEF N.O.A. AKINYEMI RESPONDENTS
2. CANON E.O. ALAYANDE
3. J. E. ONI
4. PRINCE G.A. ADEMILUYI
(Constituting the Public Service Commission)
JUDGMENT OF THE COURT
(Delivered by FATAYI-WILLIAMS, CJN.)
By the provisions of Section 2 of the Nigeria (Constitution) Order-in- Council, 1960, the Constitution of the Federation of Nigeria and those of Northern, Western and Eastern Nigeria set out in the Third, Fourth and Fifth Schedules to the Order came into effect in Nigeria on 1st October, 1960.
Section 62 of the Constitution of Western Nigeria (hereinafter referred to as the Constitution provided that there shall be a Public Service Commission for the Region which shall consist of a Chairman and not less than two or more than four other members, and that all the members of the Commission shall be appointed by the Governor acting in accordance with the advice of the Premier. Section 63 gave the Commission power to appoint persons to hold or act in offices in the public service of the Region (including power to make appointments or promotion and transfer and to confirm appointments) and to dismiss and exercise disciplinary control over persons holding or acting in such offices. Certain offices with which we are not concerned in this appeal were, however, excepted from these provisions.
Section 72 subsection (1) further provided that any Commission, including of course the Public Service Commission of Western Nigeria, established by the Constitution aforesaid might, with the consent of the Premier or such other Minister of the Government of the Region as may be authorised in that behalf by the Premier, by regulation or otherwise, regulate its own procedure or confer powers and impose duties on any officer or authority of the Region for the purpose of discharging its functions.
Pursuant to the provisions of Section 72 subsection (1) referred to above, the Public Service Commission of Western Nigeria made the Public Service Commission Regulations, 1963 (published WNLN 99 of 1963 and hereinafter referred to as the Regulations). The Regulations came into force on 2nd May, 1963. It is, I think, pertinent to point out at this juncture, that in regulation 3, the words criminal offence were defined, for the purpose of the Regulations, to mean -
any offence involving fraud, dishonesty, or other moral turpitude, or any other offence or class of offences as the Commission may generally or in particular cases prescribe.
Furthermore, provisions were made in Regulations 41, 44, 45 and 46 as follows:-
41. 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 a public officer, the Commission may, subject to the provisions of regulation 44 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.
xxx xxx xxx xxx xxx xxx xxx xxx xxx
44. If it appears, while the institution of disciplinary proceedings is being contemplated, or in the course of an inquiry or investigation, that an offence against any enactment (being a criminal offence as defined for the purpose of these Regulations) may have been committed by a public officer, the institution or continuation of disciplinary proceedings shall be postponed and the disciplinary authority shall, unless the police have taken or are about to take action, ask the Director of Public Prosecutions whether he considers it desirable to institute criminal proceedings against the officer, and if the Director does not consider it desirable to institute such criminal proceedings the disciplinary authority shall refer the matter to the Solicitor-General for an opinion as to whether or not disciplinary proceedings can properly be instituted or continued under the appropriate regulation. If the Solicitor-Generals opinion is in the affirmative the charges framed against the officer shall be approved by the Solicitor-General before the officer is required to answer them or before the proceedings continue.
45. If criminal proceedings are instituted against a public officer in any court of law, disciplinary proceedings upon any grounds involved in the criminal charge may be taken only after the conclusion of the criminal proceedings and the determination of any appeal therefrom and then only if, having regard to the provisions of regulation 50, the case is one in which disciplinary proceedings may properly be taken.
46. If disciplinary proceedings for a public officers dismissal (including any disciplinary proceedings with a view to dismissal instituted or continued in pursuance of regulation 50) are instituted or are about to be instituted against a public officer, and if the disciplinary authority considers that the interests of the public service require that such public officer should cease forthwith to exercise the powers and functions of his office, the disciplinary authority may -
(a) If the officer holds an appointment, other than a temporary appointment, in category 1, 2 or 3, interdict him; or
(b) If the officer holds an appointment in category 4, or a temporary appointment in any other category, terminate his appointment by payment of the appropriate remuneration in lieu of notice, but if such criminal proceedings result in his acquittal or if such disciplinary proceedings (including any disciplinary proceedings with a view to dismissal instituted or continued in pursuance of regulation 50) result otherwise than in his dismissal he shall be re-engaged with effect from the date of such result or from the day following the expiration of the period for which he was paid remuneration in lieu of notice whichever is the earlier.
(The underlining is mine.)
When the Federation of Nigeria was proclaimed a Republic on 1st October, 1963, the 1960 Constitution of Western Nigeria was replaced by another Constitution of Western Nigeria (published as WN Law No.26 of 1963). The provisions of Sections 62, 63 and 72 of the 1960 Constitution referred to earlier were re-enacted verbatim in the 1963 Constitution. Moreover, it was provided in Section 77 subsection (1) of the said Constitution as follows:-
77 (1) Subject to the provisions of Sections 78 and 79 of this Constitution, any court of law, authority or office which was established, any appointment, election or other selection which was made or held, and any other thing whatsoever which was done in pursuance of any provision repealed by Section 76 of this Constitution or which was deemed by virtue of any such provision to be so established, made, held or done, shall be deemed -
(a) to have been duly established, made, held or done in pursuance of the corresponding provision of this Constitution, whether or not the corresponding provision differs from the provision to which it corresponds; and
(b) so far as relevant in the case of an appointment, election, selection or other thing, to have been so made, held or done in pursuance of the corresponding provision on the date or for the period on or for which it was actually made, held or done.
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It should also be pointed out that when any legislation repeals a former legislation and repeats some of the provisions of the legislation which have been repealed, those repeated provisions may be regarded as retrospective. (See Ex parte Todd (1887) 19 QBD 186 as per Lord Esher, M.R. at page 195.) I would also like to add that, according to the provisions of Section 20 of the Interpretation Act (Cap. 89), applicable then by virtue of the provisions of Section 80(4) of said Constitution -
When an Act or Law or part of an Act or Law is repealed, all orders, regulations, rules of court, proclamations and notices issued or made in virtue thereof shall remain in force, so far as they are not inconsistent with the repealing Act or Law, and, unless the contrary intention appear, until they shall have been repealed or have been replaced by orders, regulations, rules of court, proclamations or notices, as the case may be, issued or made under the provisions of the repealing Act or Law.
On 25th May, 1972, the Public Service Commission of Western Nigeria amended the provisions of the 1963 Regulations, (see Public Service Commission (Amendment) Regulations 1972 - published as WSLN 68 of 1972), to which I have referred earlier, in the following manner:-
(a) by the deletion of the words subject to the provision of regulation 44 but in the third and fourth lines thereof;
(b) by the substitution of the following for regulations 44 and 45 -
44. If it appears while the institution of disciplinary proceedings is being contemplated, or in the course of an inquiry or investigation, that an offence against any enactment (being a criminal offence as defined for the purpose of these Regulations) may have been committed by a Public Officer, the institution or continuation of disciplinary proceedings shall not be postponed and the Head of Department shall, unless the Police have taken or are about to take action, report the matter to the Police for such action as they may consider necessary and endorse the report to the Director of Public Prosecutions for his information. Any charge which may have to be preferred against the public officer for the purposes of disciplinary proceedings in accordance with the appropriate provisions of these Regulations shall be prepared by the Solicitor-General at the request of the Head of Department.
45. If criminal proceedings are instituted or about to be instituted against a public officer in any court of law, disciplinary proceedings upon any grounds involved in the criminal charge may be taken against him before the conclusion of the criminal proceedings and the determination of any appeal therefrom. The Head of Department shall keep the Director of Public Prosecutions informed at every stage as to any action or decision taken up to the termination of disciplinary proceedings and the imposition of punishment on the officer pursuant to the foregoing provisions of this regulation.
(The underlining is mine.)
The above is a summary of the state of the law in the Western State of Nigeria in December, 1973, when the plaintiff, a registered medical practitioner and Senior Consultant in Opthalmology in the states public service, was accused of certain criminal offences. In January, 1974, the plaintiff was tried for these offences, consisting of four counts, by an Investigating Panel set up by the Commission. The four counts read -
That you, Olusanya Gregg Sofekun, Senior Consultant (Opthalmology), Ministry of Health in the Public Service of the Western State of Nigeria, have committed misconduct rendering you liable to have disciplinary proceedings instituted against you under regulation 41 of the Public Service Commission Regulations, 1963, WNLN 99 of 1963, with a view to your being punished as provided by regulation 55 of the said Regulations in that -
(i) You, on the 7th day of November, 1973, in the consulting room of the Department of Opthalmology, Adeoyo State Hospital, Ibadan attempted to have carnal knowledge of one Miss Catherine Barlow, aged 18 years, without her consent under the pretext of conducting a clinical examination of the said Miss Catherine Barlow for purposes of treatment for which she had been referred to you by one Dr. Adigun of the Out-patients Department of the said Hospital.
(ii) You, on the same day and in the same place, unlawfully and indecently assaulted the said Miss Catherine Barlow.
(iii) You, on the same day and in the same place, under the pretext of the aforesaid treatment, carried out a vaginal examination of the said Miss Catherine Barlow and in an unorthodox and improper manner.
(iv) You, on the same day and in the same place, improperly carried out a vaginal examination of the said Miss Catherine Barlow by reason of you not securing the attendance of a nurse or some third party at such examination.
The panel found him guilty of the offences stated in the 2nd, 3rd and 4th counts but gave him the benefit of the doubt on the 1st count as shown in the following portion of their report at page 178 of the file (Exhibit A) :-
48. Our findings on the charges in the document containing the charges preferred against Dr. Sofekun are, therefore, as follows:-
Paragraph (i): This charge has not been proved. There is some doubt which has been resolved in favour of Dr. Sofekun.
Paragraph (ii): This charge has been proved.
Paragraph (iii): This charge has been proved but we are of the opinion that it is not a matter which is a misconduct per se in respect of which the Government as an employer may discipline Dr. Sofekun.
The Commission accepted the findings of the panel. Consequently, the Acting Permanent Secretary of the Ministry of Health, Western State of Nigeria, wrote the letter No. C.2233/209 dated 28th March, 1974, (Exhibit D?), to the plaintiff. The letter reads:-
Senior Consultant (Opthalmology)
u.f.s The Chief Consultant, Adeoye Hospital,
Discipline: Dr. O.G. Sofekun Senior Consultant (Opthalmology)
Further to my letter No.C.2233/172 of 20th March, 1974, I am directed by the Public Service Commission to inform you that they have found you guilty of the allegations of misconduct made against you and that they have no doubt in their mind that you can no longer be retained in the Service without bringing odium to any Government hospital where you may be asked to serve. They have, therefore, dismissed you from the Service with immediate effect.
2. Please acknowledge the receipt of this letter. (Sgd.) ????????
Ag. Permanent Secretary
On receiving this letter, the plaintiff, on 27th June, 1974, commenced proceedings in the Ibadan High Court in which he claimed against the defendants jointly and severally -
a declaration that the purported dismissal of the plaintiff as Senior Consultant (Opthalmology) invalid, illegal, ultra vires, null and void, and of no effect.
He further averred in paragraphs 17 and 18 of his Statement of Claim as follows:-
17. The Commissions decision was made on the recommendations of the said Committee which were based on an investigation conducted in breach of the said Regulations and made without or in excess of jurisdiction and also in contravention of the rules of natural justice.
18. The plaintiff contends that by reason of the many lapses and the unusual haste culminating in failure to follow the procedure as laid down in the said Regulations particularly in regulation 56, the Commission dealt with the plaintiffs case with bias.
In their Statement of Defence, the defendants denied the averments referred to above and contended in paragraph 6(iii) thereof that -
The Public Service Commission acted within its Constitutional right in dismissing the plaintiff from the Public Service of Western State of Nigeria. (The underlining is mine.)
In effect, issues were joined on the constitutionality of the actions taken by the Western State Public Service. Commission which culminated in the dismissal of the plaintiff from the states public service.
Evidence from the witnesses called by the plaintiff was taken by the learned trial Judge. The defendants elected not to give evidence and rested their defence on the case put forward by the plaintiff. The learned trial Judge, in a considered judgment, granted the declaration sought after finding as follows:-
In this case as I had held that Section 81 is ultra vires the Commission and that it could not enure for its benefit the objection as to the justiciability in paragraph 6 of the Statement of Defence becomes untenable; plaintiff having submitted his claim to court, it was incumbent on the defendants to prove in this proceeding that the alleged crime was committed beyond reasonable doubt. They failed so to do and this court has no alternative but to hold that the plaintiff as at today is not guilty of any criminal offence. It could be argued that the investigating tribunal had found the plaintiff guilty on only one count amounting to a criminal offence, the Commissions imposition of discipline was intra vires.
Under Section 3 of the Public Service Regulations criminal offence? means for the purpose of these Regulations any offence involving fraud, dishonesty or other moral turpitude. The other two offences for which the Plaintiff was found guilty by investigating tribunal are:
(a) carrying out a vaginal examination of a patient in an unorthodox and improper manner; and
(b) failure to secure the attendance of a nurse or some third party at such examination.
In his high-spirited letter to the Permanent Secretary at page 203 of Exhibit A, the secretary to the Commission made a scholarly analysis of the report of the tribunal and the views of the defendants. He admitted that Defendants did not agree that the charge of failing to secure the attendance of a nurse or a third party at the examination of a patient was a misconduct; but if the Commissioners did not concede to plaintiff in the 2nd charge the right to examine the vagina of the patient in the circumstances of the case, the plaintiff would have committed an act amounting to indecent assault on the patient and to this end, the two counts for which plaintiff was disciplined are criminal offences within the definition of Section 3 of the Public Service Regulations, and since defendants have failed to prove these criminal charges beyond reasonable doubt in this proceeding, there is nothing on record to displace the presumption of innocence in favour of plaintiff.
For some inexplicable reason, the learned trial Judge went out of his way to make the following order which was not asked for by the defendants and in respect of which no finding was made by the Investigating Panel :-
The truth however is that if Plaintiff is an erotomaniac, the risk is nation-wide and not confined to government hospitals. It is however my view that the interest of the nation ought to be protected until the contrary is proved and for that purpose, it is hereby ordered that plaintiff while conducting clinical examination of a female patient does so at his own peril if a senior female nurse is not in attendance and upon a certificate from the controller of medical services to that effect plaintiff will be liable to summary committal for violating this order.
Being dissatisfied with the decision of the High Court, the defendants appealed to the Western State Court of Appeal. The appeal was still pending when the Federal Court of Appeal was established by Decree in 1976.
Because of the obviously irrelevant order made by the learned trial Judge and to which I have referred above, the plaintiff gave notice of intention to contend that the decision of the Ibadan High Court be varied as well as that the same should be affirmed on other grounds. The Federal Court of Appeal granted the two applications.
After considering the argument put forward by both parties, the Federal Court of Appeal, in a reserved judgment, allowed the appeal of the defendants and dismissed the plaintiffs claim. The present appeal by the plaintiff/appellant is from that decision of the Federal Court of Appeal.
The grounds of appeal which were argued before us are as follows:- 3. The court below misdirected itself by holding that:
As no issues were joined on the pleadings that the Disciplinary Committee was not competent to inquire into allegations involving a criminal offence, it is unnecessary for us to consider in this appeal the competence of Sections 3 and 45 of the Public Service Regulations. We wish to say however that having regard to the state of the pleadings, we find no justification for the comment of the learned judge complained of in ground 4. This ground succeeds? in that issue was joined on it and further any issue relating to lack of jurisdiction can be taken up at any stage of the proceedings and even on appeal by the parties or the court on its own motion can do so and the lower court should therefore have followed the Supreme Court decision in Denloye v. Medical & Dental Practitioners Disciplinary Committee (1968) 1 NLR 306.
4. The court below erred in law and on the fact in that the effect of regulations 44 and 45 of the 1963 Public Service Regulations as amended by WSLN 68 of 1972 is to usurp the functions of the courts of law and to deprive the public officer including the plaintiff the protection afforded by Section 22(4) to 22(9) of the Federal Constitution.
5. The court below was wrong in stating that the constitutional issue was abandoned when in fact it was extensively argued on behalf of the plaintiff before the court below but when the latter gave indications that it appeared satisfied on upholding the judgment on sufficient cause having been shown and that there did not appear any need to flog the matter further, further arguments were no longer advanced.
6. The court below erred in law and on the facts by not reversing the order made on the plaintiff conducting clinical examination of a female patient and the observation that the Commission had legitimate fear regarding the plaintiff working in Government hospitals in that the trial court had no jurisdiction to make the said order because no such claim was asked for in the suit while the issue of any alleged fear was absolutely irrelevant to the issues raised in the case before the court.
The argument of Mr. Kehinde Sofola, SAN, who appeared for the plaintiff/appellant, in support of the grounds of appeal was based on the crucial question -
Are the amendments to the Regulations by Western State Legal Notice No. 68 of 1972 valid and constitutional?
In this connection, learned counsel pointed out that the effect of the purported amendment to regulations 41, 44, 45 and 50 of the Regulations is to provide that even where a criminal offence is disclosed, the Commission can proceed to investigate the alleged offence committed by one of the States public officers without waiting for the courts decision on the issue of criminal culpability and may even still proceed to disciplinary action in spite of an acquittal by the court. The purported effect of the amendment, learned counsel contended, is to usurp the function of the court as laid down in Section 22(2) of the Constitution of the Federal Republic of Nigeria, 1963 (then applicable), and to deny any public officer accused of a crime of the protection offered by Section 22 subsections (4) to (9). Moreover, there is nothing in the Constitution of Western Nigeria at the material time that empowered the Commission to make Regulations inconsistent with Section 22 of the Constitution of the Federal Republic of Nigeria 1963, which was in force at the relevant time. Learned counsel then submitted that the 1972 amendment to the original Regulations of 1963 was ultra vires the powers of the Commission, unconstitutional and, therefore, invalid.
With regard to the charges which culminated in the dismissal of the plaintiff/appellant, Mr. Sofola submitted further as follows: The charges disclosed criminal offences, that is, attempted rape and indecent assault. These charges ought to have been tried and adjudicated upon by a court of law and not by an Investigating Panel unless the State Director of Public Prosecutions saw good reason not to want to prosecute. Not having left the decision to the court before acting renders the Commissions decision null and void. In the result, the original Regulation 44 is still in force and since there has been non-compliance with its mandatory provisions, the whole exercise embarked upon by the Commission is void.
Finally, Mr. Sofola referred to the further order made by the trial court that -
the plaintiff while conducting clinical examination of a female patient does so at his own peril if a senior female nurse is not in attendance, and upon a certificate from the Controller of Medical Services to that effect plaintiff will be liable to summary committal for violating this order.
He also called our attention to the observation of the Federal Court of Appeal that this further order was irrelevant. He then submitted finally that this observation impliedly regarded the order complained of as unnecessary and irrelevant, that it was made without jurisdiction and that no such order was asked for in the plaintiff/appellants claim.
For all these reasons, Mr. Sofola asked that the appeal be allowed, the order of the Federal Court of Appeal reversed, and the judgment of the trial court restored.
In his reply, Mr. Adeniyi, for the defendants/respondents, urged us to hold that, in spite of the submission on the constitutional issue, the appeal must fail because the Regulations as amended in 1972 do not infringe the provisions of Section 22(4) of the 1963 Constitution of the Federal Republic of Nigeria. Learned counsel, however, conceded that all the charges in the four counts which the panel investigated are criminal offences. He also agreed that the offences should have been stated in charges tried before a court. Learned counsel finally conceded, after a number of searching questions had been put to him by the court, that the amendments to regulations 41, 44, 45 and 50 affect the provisions of Section 22 subsections (2), (4) to (9) of the 1963 Federal Constitution. He also indicated that he would not oppose the expurgation of that part of the judgment dealing with the order not asked for.
To my mind, this appeal revolves round the interpretation of the provisions of Section 22 subsections (2), (4) to (10) of the Constitution of the Federal Republic of Nigeria 1963.
The Section is part of the Chapter in the Constitution dealing with Fundamental Rights. Section 22 subsection (2), in particular, reads -
(2) Whenever any person is charged with a criminal offence, he shall, unless the charge is withdrawn, be entitled to a fair hearing within a reasonable time by a court.
(The underlining is mine.)
Subsections (4) to (10) provide all the ingredients of a fair trial. Furthermore, the word court is defined in Section 33 of the same Chapter as -
any court of law in Nigeria, but, except in relation to a member of the armed forces of the Federation, does not include a court martial.
Bearing in mind that the words by a court is only used once and at the tail-end of subsection (2) of Section 22, the word charged in the first line thereof can only be synonymous with the word accused. No other construction is, in my view, possible. Moreover, because of the mandatory provisions of the subsection, it seems to me that once a person is accused of a criminal offence, he must be tried in a court of law where the complaints of his accusers can be ventilated in public and where he would be sure of getting a fair hearing as set out in subsections (4) to (10) of Section 22 of the Constitution of the Federal Republic of Nigeria. No other tribunal, investigating panel, or committee will do.
If Regulations such as those under attack in this appeal were valid, the judicial power could be wholly absorbed by the Commission (one of the organs of the Executive branch of the State Government) and taken out of the hands of the magistrates and judges. It is possible that the Commission had no such intention. In all probability, it was beset with what it regarded as unnecessary delays in criminal proceedings in the courts but it over-reacted in the measures it took to deal with such delays, thinking, one must presume, that it had the power to do so and was acting rightly. But that consideration, to my mind, is completely irrelevant, and gives no validity to, or justification for, acts which infringe the provisions of Section 22(2) of the Constitution of the Federal Republic of Nigeria.
What is done once, if it is allowed, may be done again and in less demanding circumstances. If the Commission is allowed to get away with it, judicial power will certainly be eroded. Such an erosion is, without doubt, contrary to the clear intention of Section 22(2) of the Constitution. The jurisdiction and authority of the courts of this country cannot be usurped by either the Executive or the Legislative branch of the Federal or State Government under any guise or pretext whatsoever.
That being the case, the amendment made to the Regulations in 1972, the effect of which is to make it unnecessary to take a public officer in the States public service who has been accused of a criminal offence to a court of law, and, in effect, to dispense with the due process of law, is clearly ultra vires the provisions of Section 22 subsection (2) of the Constitution and is, therefore, invalid . So also were the trial of the plaintiff/appellant held thereunder by the Investigating Panel and his consequential dismissal from the public service by the Commission.
In the course of his argument before us, Mr. Sofola referred to the decision of this court in Denloye v. Medical and Dental Practitioners Disciplinary Committee (1968) 1 All NLR 306. In my view, not only is that decision irrelevant to the matters in issue in the present appeal, the court which heard that appeal stated in clear terms at page 411 of the judgment that -
As we however intend to decide this matter on other grounds we see no useful purpose in considering further the effect of Section 22 of the Constitution.
In short, the constitutional issue which is the main plank of the present appeal was not considered in the Denloye case.
There is one other point with which I would like to deal. Learned counsel for the defendants/respondents took the point that the constitutional issue now being raised by the plaintiff/appellant was not pleaded by him. This is not so. Not only did the plaintiff/appellant contend that the action of the Commission was ultra vires the defendants/respondents, for their part, pleaded the constitutionality of this same action in paragraph 6(iii) of their statement of defence. In any case, I take the view that, because it is so fundamental to the life, liberty and well-being of the individual, it should be possible for any person who complains about an alleged infringement of any of his Fundamental Rights as entrenched in our Constitution, to canvass the issue of such infringement at any stage of any court proceedings, whether in the trial court or on appeal.
For the reasons which I have given, this appeal succeeds and it is allowed. The judgment of the Federal Court of Appeal delivered on 5th May, 1978, including the order made as to costs, is accordingly set aside. Instead, I order that the judgment of the Ibadan High Court delivered on 15th September, 1975, which granted the plaintiff/appellant the declaration asked for by him, be restored together with the costs awarded to him in that court.
Finally, it seems to me that the order of the learned trial Judge that, upon a certificate from the Controller of Medical Services that Plaintiff/appellant has conducted a clinical examination of a female patient without a senior female nurse being in attendance, he (the plaintiff/appellant) would be liable to summary committal for violating this order was completely irrelevant to the claim before the trial court and was, therefore, made without jurisdiction. This order is accordingly set aside. Not only that, I also order that the whole of paragraph (15) of what the learned trial Judge described in his judgment as a summary of this decision should be expunged from the judgment of the Ibadan High Court on the ground that there is no evidence whatsoever in support of the observations and conclusion made therein.
The plaintiff/appellant is awarded costs assessed in the Court of Appeal at N60.00, and in this court at N387.00.
A. G. IRIKEFE, JSC.: I have had the advantage of reading in draft the lead judgment read in this matter by my Lord, Fatayi-Williams (Chief Justice of the Federation of Nigeria) and I am in entire agreement with the conclusions and orders made therein.
M. BELLO, JSC.: I have had the advantage of reading in draft the judgment just delivered by the Hon. Chief Justice of Nigeria and I entirely agree with the reasoning and conclusions therein. I agree that the judgment of the Court of Appeal, including the order as to costs, should be set aside. I also agree that the judgment of the Ibadan High Court which granted the appellant the declaration asked for by him together with the costs awarded to him by that court should be restored.
I also endorse all the other orders made by the Hon. Chief Justice.
C. IDIGBE, JSC.: My Lords, I have had the opportunity of reading in draft the judgment just read by my Lord, Chief Justice. For the reasons and conclusions therein I agree that this appeal should be allowed; I also agree the order for costs set out in the said judgment.
A. O. OBASEKI, JSC.: I entirely agree with the judgment just delivered by the Honorable Justice Fatayi-Williams, Chief Justice of Nigeria, the draft of which I had earlier had the privilege of reading.
It is in the interest of the Government and every individual in this country that the guilt of crime should not be tagged on to any individual without a proper trial in the courts of law known as such under the Constitution of the Federal Republic.
The appeal is hereby allowed and I agree with all the orders made by learned the Honourable Chief Justice of Nigeria in the matter.
K. ESO, JSC.: My Lords, I have had the advantage of reading in draft the judgment which has been read by the Lord Chief Justice of Nigeria. I am in entire agreement with the reasoning and conclusions reached by His Lordship. I will also allow the appeal and in this regard I associate myself with the orders contained in the aforesaid judgment of my Lord, the Chief Justice of Nigeria.
A. N. ANIAGOLU, JSC.: I have had the advantage of reading in draft the judgment just delivered by my Lord and learned brother, Fatayi-Williams, Chief Justice of Nigeria, and I entirely agree with his reasoning and resultant conclusion.
It is not my intention to detract from the well-reasoned argument as contained in his said judgment by any superfluous additions, but, if only for emphasis, having regard to the importance of the main issue involved in this appeal which affects one of the fundamental rights of a citizen as enshrined in the Constitution then in force, I would like to draw particular attention to the supremacy of the then unsuspended portion of the 1963 Constitution which bound our country at the time material to these proceedings, and to the inviolability of its provisions. The suspension, of course, to which I am referring began with The Constitution (Suspension and Modification) Decree, 1966 and was followed by later amending and modifying decrees the consideration of which is not necessary for our present purpose.
Section 1 of the said Constitution of the Federation No. 20 of 1963 provided that :-
1. This Constitution shall have the force of law throughout Nigeria and, subject to the provisions of Section 4 of this Constitution, if any other law (including the Constitution of a Region) is inconsistent with this Constitution, this Constitution shall prevail and the other law shall, to the extent of the inconsistency, be void.
This must be read in conjunction with Section 69 (5) (ibid) which also provides:
(5). Subject to the provisions of subsection (4) of this section, nothing in this section shall preclude the legislature of a Region from making laws with respect to any matter that is not included in the Exclusive Legislative List.
But, a matter of fundamental right of the citizen as contained in Section 22 of Chapter III of the Constitution was not one which a Regional Legislature could legislate out of existence, let alone the Executive arm of the Government, or any of its functionaries, by subsidiary legislation, doing the same. It is against this background that one looks at the complained Western Nigeria 1972 Regulations 44 and 45 which enjoined that the institution or continuation of disciplinary proceedings should not be postponed pending a determination by a court of law, as required by Section 22 of the Constitution, of criminal charges involved in the accusations against a public officer against whom the disciplinary proceedings had been brought.
The constitutional validity of a legislation depends upon its aim and purpose (see: The Canadian Indemnity Company Et Al v. Att.-Gen.of British Columbia (1977) 2 SCR 504 at 512, 514 and 519). The purpose of the amending 1972 Regulations 44 and 45 aforementioned was either to usurp or to oust, directly or indirectly, by overt artifice or subterranean device, the jurisdiction of the courts - an exercise which would be ultra vires and unconstitutional. Even if this was not the intention but was the unintended effect, the result would be the same.
It is essential in a constitutional democracy, such as we have in our country, that for the protection of the rights of citizens, for the guarantee of the Rule of Law which includes according fair trial to the citizen under procedural regularity, and, for checking arbitrary use of power by the Executive or its Agencies, the power and jurisdiction of the courts under the Constitution must not only be kept intact and unfettered but also must not be nibbled at. To permit any interference with, or a usurpation of, the authority of the courts, as aforestated, is to strike at that bulwark which the constitution gives and guarantees to the citizen, of fairness to him, against all arbitrariness and oppression. Indeed, so important is this preservation of, and non-interference with, the jurisdiction of the courts that our present Constitution (Decree No.25 of 1978) has specifically provided (see Section 4 (8)) that neither the National Assembly nor a House of Assembly shall enact any law that ousts or purports to oust the jurisdiction of a court of law or a judicial tribunal established by law.
Finally, Denloye v. Medical and Dental Practitioners Disciplinary Committee (1968) 1 All NLR 306 - a case much bandied about by the parties from the courts below to this court - is, in my view, wholly irrelevant in the present proceedings. The point in that case was whether the rules of natural justice were observed by a tribunal properly seised with an Inquiry under the Medical and Dental Practitioners (Disciplinary Tribunal and Assessors) Rules, 1966 made pursuant to the Medical and Dental Practitioners Act, No.9 of 1963, Section 13(5) of which gave a right of appeal to the Supreme Court, to any aggrieved medical practitioner against whom the tribunal has given a disciplinary direction. It was in pursuance of that right of appeal that Dr. E.O.A. Denloye went on appeal to the Supreme Court complaining of unfairness to him of the way the inquiry was conducted. As I said, the tribunal was in that case properly seised of the matter but conducted its proceedings unfairly or in infringement of rules of natural justice, unlike in the present proceedings in which I am satisfied the tribunal appointed was not properly seised of the matter, by reason of the provisions of Section 22(2) of the 1963 Constitution.
I would therefore allow, and hereby allow, this appeal and order costs against the respondents as contained in the aforementioned judgment of the Chief Justice
Mr. K. Sofola, SAN, for the Plaintiff/Appellant.
Mr. D.A. Adeniyi, Deputy Chief Legal Adviser, , Oyo State, for the Defendants/Respondents.