SIKIRU ADEWUNMI BAKARE
v.
1. LAGOS STATE CIVIL SERVICE COMMISSION
2. LAGOS STATE SCHOOLS MANAGEMENT BOARD
1992-LD-SC-419
Supreme Court
16th October, 1992.
Justices:
Adolphus Godwin Karibi-Whyte, J.S.C.
Saidu Kawu, J.S.C.
Philip Nnaemeka-Agu, J.S.C.
Olajide Olatawura, J.S.C.
Emmanuel Obioma Ogwuegbu, J.S.C.
Shehu Usman Mohammed, J.S.C.
Michael Ekundayo Ogundare, J.S.C. (Read The Leading Judgment)
Subject Matter(s):
1.Right to Fair Hearing
2.Supremacy of the Constitution
Final Order:
Appeal Allowed in Part.
RATIO DECIDENDI
RIGHT TO FAIR HEARING – Whether the provision of Section 33(1) of the 1979 Constitution deals with judicial bodies or it extends to all bodies not judicial
“Section 33(1) of the 1979 Constitution from its very words deals with determination of the civil rights and obligations of a person by its provisions by a court or a tribunal established by law is in the area of constitutional law. That is, strictly what can be described as being unconstitutional. On the other hand, all administrative bodies are bound to observe the rules of natural justice and of fairness in their numerous decisions which affect the rights and obligations of citizen, including employees of governments. But they are not courts : Baba v. N.C.A.T.C. 5 N.W.L.R (Pt.192) 388.The courts in exercise of their power of judicial review are constantly called upon to scrutinize the validity of instruments, laws, acts, decisions, and transactions. In the exercise of the jurisdiction, the courts can declare them invalid or ultra vires and void not because they are unconstitutional in terms of section 33 of the Constitution but because they offend against the rules of natural justice of audi alteram pertem, or nemo judex in causa, or offends against the rules of fairness, or otherwise offends the rule of natural justice. All these are in the realm of administrative, and not constitutional law. The court can by its power of judicial review set them aside. The great divide is that section 33 deals with judicial bodies and does not necessarily extend to all bodies not judicial but all the same deciding on right and obligations. The great divide is that Section 33 deals with judicial bodies and does not necessarily extend to all bodies not judicial but all the same deciding on right and obligations.”
RULE 04502 OF THE LAGOS STATE CIVIL SERVICE RULES – Interpretation of Rule 04502 of the Lagos State Civil Service Rules as regards whether it falls within Section 33(2)(b) of Constitution of the Federal Republic of Nigeria
“Rule 04502 of the Lagos State Civil Service Rules, reads; “(a) Without prejudice to the power to institute disciplinary proceedings in respect of any absence from duty without leave or reasonable cause, where an officer is absent from duty without leave or reasonable cause, the disciplinary authority may dismiss him without following the procedure prescribed in Rule 04502 or 04511. (b) An officer shall be considered and treated for all purposes as having been dismissed from the State Civil Service by the very fact and from the very date of his having committed any of the following acts or omissions; (i) absenting himself from duty without leave or reasonable cause and in circumstances evincing an intention on his part no longer to continue in the state civil service; or (ii) resigning…………….. provided that if the officer can later satisfy the disciplinary authority that the circumstances of his having committed any of the acts or omissions afore-mentioned do not justify his dismissal from the State Civil Service, the disciplinary authority may without prejudice to the power to institute disciplinary proceedings in respect of such acts or omissions and with a view to a lesser punishment than dismissal being imposed revoke the dismissal.”The 1st respondent is the Disciplinary Authority within the meaning of Regulation 51 of the Lagos State Civil Service Regulations. The aforesaid regulations have given the Disciplinary Authority where an officer is absent from duty without leave or without reasonable cause, the choice either to summarily dismiss such officer without hearing or to institute disciplinary proceedings following the procedure prescribed in Regulation 57 or 58. Thus where the Disciplinary Authority exercises its power to dismiss an officer summarily under Regulation 51 without following the procedure in Regulation 57 or 58, or under Rule 04502 without following the procedure prescribed in Rule 04508 or 04511, the dismissal so effected is still not final and conclusive. This construction follows from the proviso to Rule 04502 (b) whereby if the officer dismissed subsequently satisfies the Disciplinary Authority that under the circumstances in which he committed the act or made the omission he ought not have been dismissed; the Disciplinary Authority may revoke the dismissal and institute disciplinary proceedings with a view to imposing lesser punishment than dismissal. It seems to me that the rationale for the proviso is to preserve, protect, and maintain the principle of audi alteram partem, which is one of the cardinal principles of our administration of justice and an entrenched fundamental right of the individual in our Constitution. The decision to dismiss an officer summarily under Regulation 51 or Rule 04502 without a hearing is therefore not final and conclusive. It therefore falls within Section 33(2)(b) of Constitution of the Federal Republic of Nigeria 1979. Thus, the Disciplinary Authority, dismissing an officer for absence from duty without leave or without reasonable cause, is not final and conclusive.”
JUDICIAL PRECEDENT/ STARE DECISIS – Attitude of the Supreme court to the principle of stare decisis
“This court respects precedent, even though it is not a court bound by precedent. It is, as here as in many other parts of the Commonwealth, essential for the certainty of the law that it should generally follow its previous decisions. But, as a court of ultimate resort, it need not do so when the interest of justice dictates otherwise. So it will not hold itself hamstrung by precedent when it has been shown that an established principle is beset with a substantial error such that to follow it will amount to furthering injustice. Nnamani, J.S.C. of blessed memory encapsulated the principle in James Orubu v. National Electoral Commission & 13 Ors. (1988) 5 N.W.L.R (Pt.94) 323 (also in (1988) 12 S.C.N.J. 254 at page 276) where he stated: ‘I am afraid that this has not been the only considerations of this court in relation to its decisions. The question of the overruling of its decision have been dealt with in numerous decisions which were referred to by counsel they include: Bucknor-Maclean and Anor v. Inlaks Ltd (1980) 8-11 S.C. 1; Surakatu v. Nigerian Housing Development Society Ltd. (1981) 4 S.C. 26; Odi & Anor. v. Osafile & Anor (1985) 1 S.C.1; (1985) 1 N.W.L.R (Pt.1) 17; Oduola v. Coker (1981) 5 SC.187, 230-231; Bronik Motors v. Wema Bank Ltd. (1983) 1 S.C.N.L.R 296; Akinsanya v. U.B.A Ltd. (1986) 1 N.W.L.R (Pt.35) 273, 323; Prince Yaya Adigun v. Attorney-General of Oyo State (1987) 4 S.C. 272, 342-344; (1987) 2 N.W.L.R (Pt.56) 197. As I said, I am afraid that I do not agree with Mr. Jemide that what he stated have been the only considerations by this court. This court has always upheld the principle of stare decisis, and as was stated in Jones v. Secretary of State for Social Services, wishes to uphold the certainty of the law. In that connection, it does not make a habit of overruling its decisions without due consideration and haphazardly. But the court has, nevertheless, stated over and over again that where in a subsequent proceeding, an error is pointed out to it, it would not perpetuate such error. Idigbe J.S.C. in Bucknor-Maclean’s case stated it thus at page 24. So in spite of the fact that the principle in Golder’s case (supra) has been ruling the waves in this country since 1961 and has been applied in numerous cases and that this court is more reluctant to jettison its previous decision which has been followed so often and for so long, this court would not hesitate to overrule it if it was satisfied that it was manifestly wrong, or given per incuriam some relevant constitutional or statutory provision or had led to injustice. See Johnson v. Lawanson (1971) 1 N.M.L.R 380.”
SUPREMACY OF THE CONSTITUTION – Nature and effect of the supremacy of the Constitution
“The Constitution is the source of our laws. The rights, privileges and the protection of the citizen are derived from its provisions. The Regulations and Rules governing the tenure and rights of the public officer derive their authority and validity from the constitution. The public officer’s rights, duties, privileges etc, and indeed his protection can be found within the provisions of the governing Rules and Regulations.”
THE RULE OF NATURAL JUSTICE – Principles of natural justice
“Section 33(1) of the Constitution is a restatement of the rule of natural justice that requires that in the resolution of any dispute the parties be accorded a fair hearing. It is a rule which every civilized jurisdiction accepts as a sine-qua-non to a proper and fair adjudication. This rule has as its twin pillars the legal maxims (a) audi alteram partem, and (b) nemo judex in causa sua. The necessity for the due observance of these two pillars of justice has been emphasised in numerous cases that their application for the validity of any adjudication can no longer be called in question. I refer in this regard to such cases as Olaniyan v. University of Lagos (1985) 2 N.W.L.R (Pt. 9) 599; State Civil Service Commission & Anor. v. Buzugbe (1984) 7 S.C.19; Federal Civil Service Commission & Ors. v. Laoye (1989) 2 N.W.L.R (Pt.106) 652; Olatunbosun v. NISER Council (1988) 3 N.W.L.R (Pt.80) 25, (1988) 1 N.S.C.C 1025; Shitta-Bey v. Federal Public Service Commission (1981) 1 S.C. 40 and Falomo v. Lagos State Public Service Commission (supra), to mention a few. Any adjudication that does not accord with the audi alleram partem rule is but a sham.”
DISCIPLINARY TRIBUNAL – Whether the dismissal of an officer by a disciplinary authority without hearing will be deemed final
“Both the Regulation and Rule give the disciplinary authority power to dismiss an affected officer without first complying with the procedure as to a hearing laid down in Regulation 54(2) and Rule 04508. One may be tempted for this reason to hold that the Regulation and Rule conflict with Section 33(1) of the 1979 Constitution. But each of them. by its further provisions, allows for a review of the decision to dismiss at the instance of the affected officer and after a hearing has been given to him. Thus, the dismissal without a hearing is not final; the affected officer’s case can still be reopened and a hearing given to him. At the reopening of his case, his dismissal may be revoked if the evidence available at the hearing so justifies.”
DEPARTURE FROM PREVIOUS DECISIONS – Circumstances wherein Court can depart from or overrule its previous decisions
“The circumstances under which this Court will overrule its own earlier decision are clearly stated in such cases as Eperokun v. University of Lagos (1986) 4 N.W.L.R (Pt.34) 162; Federal Civil Service Commission & Laoye (1989) 2 N.W.L.R (PI. 106) 652 and Asanya v. The State (1991) 3 N.W.L.R (Pt.140) 422. In the last case Obaseki J.S.C. at page 454 of the report states the principles clearly in these words: “Previous decisions of this Court are binding on this Court until overruled or departed from. Departing from previous decisions is not a matter to be lightly embarked upon. The court can only be persuaded to depart from previous decisions if the previous decisions were proved wrong, given per incuriam and perpetuating injustice. See Odi v. Osafile (1985) 1 N.W.L.R (Pt.1) 17: Bucknor-Maclean and Anor v. Inlaks Ltd. (1980) 8-11 S.C. 1.This is because the court has a twin duty to see that (1) justice is founded on the correct view of the law and (2) justice is not slaughtered on incorrect interpretation and application of the law and equity. The pursuit of these ideals are to go hand-in-hand with the pursuit of the ideal of certainty in the law.” Olatawura J.S.C., in his own contribution, has this to say at pages 475 to 476 of the report: “Judicial precedent is an insurance against inconsistent judgments. In matters affecting the administration of justice, liberty of the subject, interests of justice. There cannot be a posture of indifference in the name of stare decisis so as to enthrone injustice. That in itself will amount to a negation of justice. Where there is cause to depart from previous decision this court will not hesitate to do so: James Orubu v. National Electoral Commission & 13 Ors . (1988) 5 N.W.L.R (Pt.94) 323: Bucknor-Maclean & Anor v. Inlaks Limited (1980) 8-11 S.C.1: Oduola v. Coker (1981) 5 S.C. 187 to mention a few. However, it must be appreciated and clearly understood that this court will not depart from previous decisions on flimsy grounds.” Nnaemeka-Agu, J.S.C. in his lead judgment at pages 448 to 449 said: “He urged the court to overrule the line of cases which treat an accused person who testifies in his own defence as just a witness, because it leads to injustice. This court has declared that it will not perpetuate injustice in the name of Stare decisis, he submitted. He relied on – Bucknor-Maclean & Anor v. Inlak s Ltd. (1980) 8-11 S.C. 1 Page 25: James G. Orubu v. N.E.C. & 13 Ors (1988) 5 N.W.L.R (Pt.94) 323 P.356: UBA v. Stahlbau G.M.B.H (1989) 3 N.W.L.R (Pt.110) 374 P.406: Adegoke Motors v. Adesanya (1989) 3 N.W.L.R (Pt.109) 250 pp.274-275.”
RIGHT TO FAIR HEARING – Circumstance where a party cannot be heard to complain of being denied the right to fair hearing
“There is a lot of common sense in the enabling provision. It is a plausible argument that a person who absents himself from duty without leave or without reasonable cause evinces an intention no longer to continue in the service. The burden is on him to show otherwise. Accordingly, whilst he, the officer, is so absent from duty without leave, it will be impossible to hear him to determine the reasonableness of his absence from duty, and to satisfy the constitutional provision relating to fair hearing. It is impossible to satisfy the constitutional provision for fair hearing unless the person to be heard is present or makes a representation to the disciplinary authority. The Rules having provided for hearing, the officer has not been denied the fair hearing prescribed by the Constitution as was done in Edwards v. SEGAT (1970) 2 All ER. 689. It is for the officer to take advantage of the provision. It is pertinent to observe that implicit in the expression “or without reasonable cause”, is the requirement for hearing. The question of absence of reasonable cause which is a condition for determining dismissal cannot be satisfied without a hearing.”
PLEADINGS – Whether parties as well as the courts are bound by the pleadings
“This court has held times without number, and the proposition is quite familiar to counsel, that parties are bound by their pleadings. See Agu v. Ikewibe (1991) 3 N.W.L.R (Pt.180) 385.”
DUTY OF COURT – Whether the Court can make a case for the parties different from the case set up by them in their pleadings
“The court cannot make for a party a case which he did not make. The respondents having failed to plead the fact of dismissal of the appellant, or lead evidence thereof, which they cannot do in the absence of pleading, the court cannot infer the existence of such pleading. See Samson Ochonma v. Asirim Unosi (1965) N.M.L.R 321.; Idika v. Esiri (1988) 2 N.W.L.R (Pt. 78) 563.”
WAIVER OF RIGHT – Meaning and elements of the concept of waiver
“Waiver is an abandonment of a right, and is either express or implied from conduct. A right that has been waived is as good as lost in that once the other side acts upon the waiver, the party waiving his right can no longer go back on the waiver and act as if it was never waived. He must accept the legal relations between the parties subject to the qualification which he himself has introduced. See on this Vol 14 Hals. Laws of Eng. (3rd Edn.) 637.”
WAIVER OF RIGHT – Meaning and elements of the concept of waiver
“If you talk of waiver one must look at the facts leading to the rights, duties and applications which are supposed to be waived. It is therefore always necessary to see in what sense the word is used but the commonest sense as in this case is that where a party expressly or impliedly gives up his right to enforce a condition or to rely on a condition on a contract and therefore refuses to enforce that right or to rely on that condition it can be said to have waived his right.”
AMENDMENT OF COURT PROCESSES/PLEADINGS – Principles guiding the discretionary power of Court to grant or refuse an application for amendment of pleadings/Court processes
“It is generally accepted that amendment can be made at any stage of the proceedings. In respect to the case in hand, it was made in view of the evidence already led and in respect of which the appellant was not taken by surprise. See Adekeye & Ors v. Akin Olugbade (1987) (Pt.2) Vol. 18, p.865 at p.870 (1987) 3 N.W.L.R (Pt.60) 214 where this Court re-stated again the principle behind amendment of proceedings: “The aim of an amendment is usually to prevent the manifest justice of a cause from being defeated or delayed by formal slips which arise from the inadvertence of counsel. It will certainly be wrong to visit the inadvertence or mistake of counsel on the litigant. The Courts have therefore through the years taken a stand that however negligent or careless may have been the slip, however late the proposed amendment, it ought to be allowed, if this can be done without injustice to the other side, for a step taken to ensure justice cannot at the same time and in the same breath be used to perpetuate an injustice on the opposite party. The test as to whether a proposed amendment should he allowed is therefore whether or not the party applying to amend can do so without placing the opposite party in such a position which cannot be redressed by that panacea which heals every sore in litigation namely costs.”
PUBLIC SERVANT – Whether a query can be issued to a public servant after his dismissal from employment
“It is an unusual and strange procedure to dismiss a public servant and thereafter issue a query to him to explain why disciplinary action should not be taken against him.”
LEGAL ACT – Whether an uncompleted legal act can result in a legal consequence
“It seems to me an acceptable legal proposition that an uncompleted legal act cannot result in a legal consequence.”
