3PLR – BAKARE V. L. S. C. S. C

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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BAKARE

V.

L.S.C.S.C

IN THE SUPREME COURT OF NIGERIA

FRIDAY. 16TH OCTOBER. 1992

SC/141/1988

3PLR/1992/26  (SC)

OTHER CITATIONS

NWLR (Pt. 262) 641

 

BEFORE THEIR LORDSHIPS

ADOLPHUS GODWIN KARIBI-WHYTE J.S.C. (Presided)

SAIDU KAWU. J.S.C.

PHILIP NNAEMEKA-AGU. J.S.C.

OLAJIDE OLATAWURA. J.S.C.

MICHAEL EKUNDAYO OGUNDARE. J.S.C. (Read the Leading Judgment)

EMANUEL OBIOMA OGWUEGBU. J.S.C.

SHEHU USMAN MOHAMMED. J.S.C.

 

BETWEEN

SIKIRU ADEWUNMI BAKARE

 

AND

1. LAGOS STATE CIVIL SERVICE COMMISSION
2. LAGOS STATE SCHOOLS MANAGEMENT BOARD

 

REPRESENTATION

1. O. Oyewole ESQ. (With him, O.M. Onasanya) – for appellant
2. T. Okuwobi (Mrs) C. L.O. (Lagos State) – for respondents

 

MAIN ISSUES

ACTION – Incompleted act. – Whether can result in a legal consequence.

ADMINISTRATIVE LAW – Rules of natural justice – Bindingness of on administrative bodies.

APPEAL – Issue for determination – What it should he based on – Issue not arising from judgment of lower court or ground of appeal – How treated.

CIVIL SERVICE RULES – Fair hearing – Regulation 51 of the Lagos State Civil Service Commission Regulations of 1980 and Rule 045(12 of the Lagos State Civil Service Rules of 1982 -Whether provisions thereof infringe section 33 of the 1979 Constitution..

CIVIL SERVICE RULES – Lagos State Civil Service Commission Regulations, 1980, Regulation 51 and Rule 05402 of the Lagos State Civil Service Rules, 1982 – How interpreted.

CONSTITUTIONAL LAW – Constitution – Nature and importance of as source of all lams.

CONSTITUTIONAL LAW – Fair hearing – Regulation 51 of the Lagos State Civil Service Commission Regulations of 1980 and Rule 04502 of the Lagos State Civil Service Rules of 1982 – Whether provisions thereof infringe section 33 of the 1979 Constitution.

CONSTITUTIONAL LAW- Fair hearing -Rules of fair hearing under common to”, – Relevance of in determination of fair hearing under the constitution.

CONSTITUTIONAL LAW – Fair hearing – Rules of fair hearing under common love – Whether application of extended or abridged by the Constitution.

CONSTITUTIONAL LAW – Fair hearing – Section 33(2), 1979 Constitution – Purport of – How construed.

CONSTITUTIONAL LAW – Fair hearing – Sections 33, 1979 Constitution and 22(1), 1963 Constitution – Purport of – When necessary – How to satisfy.

CONTRACT -Master and servant – Dismissal of employee – When it is deemed to take effect.

COURT – Court making out a case for parties – Propriety of.

COURT- Previous decision of Supreme Court -When Supreme Court will overrule – When it will not – Relevant considerations.

COURT – Supreme Court -Where Supreme Court is called upon to overrule itself – Presumption – Condition precedent thereto.

INTERPRETATION OF STATUTES – Lagos State Civil Service Commission Regulations, 1980, Regulation 51 and Rule 05402 of the Lagos State Civil Service Rules, 1982 – How interpreted.

JUDGMENT AND ORDER – Declaratory judgment -Nature of- When it will not he granted.

JUDICIAL PRECEDENT – Previous decision of Supreme Court – When Supreme Court mill overrule – When it will not- Relevant considerations.

JUDICIAL PRECEDENT -.Supreme Court -Where Supreme Court is called upon to overrule itself – Presumption raised thereby – Condition precedent thereto.

JURISPRUDENCE – Legal consequence – Whether can result from uncompleted act.

MASTER AND SERVANT – Dismissal of employee – V1 hen it is deemed to take effect –

NATURAL JUSTICE – Fair hearing – Rules gl under common lair – Relevance of in determination of fair hearing under the Constitution.

NATURAL JUSTICE – Fair hearing – Rules of under common law – Whether application of extended or abridged by the Constitution.

NATURAL JUSTICE – Fair hearing – Section 33(2), 1979 Constitution – Purport of- How construed.

NATURAL JUSTICE – Fair hearing – Sections 33, 1979 Constitution and 22(1), 1963 Constitution – Purport of – When necessary – How to satisfy.

NATURAL JUSTICE-Rules of natural justice – Bindingness of on administrative bodies.

NATURAL JUSTICE – Rules of natural justice – Importance of – Need to adhere thereto – Laws, instruments, acts, decisions, etc – Need to comp/ v with rules of natural justice.

NOTABLE PRONOUNCEMENT – On need for civil servants to uphold the dignity of public service.

PRACTICE AND PROCEDURE – Amendment of process – When it can he made – Where sought after close of parties case – Considerations for grant of.

PRACTICE AND PROCEDURE – Appeal – Issue for determination – What it should he based on – Issue not arising from judgment of lower court or ground of appeal – How treated.

PRACTICE AND PROCEDURE – Pleadings – Bindingness of on parties and the court – Fact not pleaded – How treated.

PRACTICE AND PROCEDURE – Waiver – Meaning of – Whether applies in a given situation – Horn determined.

PUBLIC SERVICE – Dignity of public service – Need for civil servants to uphold.

WAIVER – Doctrine of waiver – Meaning of – Whether applies in a given situation – How determined.

WORDS AND PHRASES -Waiver – Meaning of.

 

MAIN JUDGEMENT

OGUNDARE, J.S.C. (Delivering the Lead Judgment):

By his amended writ of summons the plaintiff claimed in the High Court of Lagos State from the defendants as follows:-

 

“1.(i) A declaration that the First Defendant had unjustifiably repudiated the contract of service entered into with the plaintiff in or about 1973 by wrongfully refusing to pay the plaintiff his salaries, allowances and other entitlements since 1st February, 1982, to date.

 

(ii)     The sum of N500,000.00 being damages for wrongful dismissal.

 

(iii)    In the alternative to 1() and (ii) above,

 

(a)     a declaration that the contract of service between the plaintiff and the 1st defendant entered into in or about 1973 still subsists.

 

(b)     an order for payment of arrears of salary and all other entitlements due from 1st defendant to the plaintiff from 1st February, 1982 until the date of judgment.

(iv)    the sum of N25,000 being general and aggravated damages suffered by the plaintiff as a result of the 1st defendant’s deliberate and malicious stoppage of the plaintiffs salary as aforesaid.

 

2. The plaintiff’s claim against the 2nd defendant is for the sum of N25,000.00 being damages for wrongfully and maliciously inducing the 1st defendant to breach its obligations under the contract of employment between the plaintiff and the 1st defendant.

 

(ii)     the sum of N50,000.00 being damages for libel contained in a letter ref. No. SMB/CON/PF/206/35 dated 11th June, 1982 written by the 2nd defendant to Mr. O.J. Idigbe of Chief Rotimi Williams Chambers, the plaintiff’s former Solicitors.

 

3. The plaintiff claims the sum of N100,000.00 jointly and severally from the defendants being exemplary damages for oppressive, arbitrary and unconstitutional acts against the plaintiff by the defendants, their servants or agents.”

 

Parties filed and exchanged their pleadings. Both, with leave of the trial court, filed and exchanged amended pleadings. Thereafter, the action proceeded to trial at the conclusion of which, and after arguments by learned counsel for the parties, the learned trial judge dismissed plaintiff’s claims except claim 2(ii) in respect of which he awarded N5,000.00 damages against the 2nd defendant. Being dissatisfied with this judgment, the plaintiff appealed to the Court of Appeal (Lagos Division) against that part of the judgment dismissing his claims. The 2nd defendant did not appeal against the part of the judgment damnifying it in damages for libel. That Court, after hearing the appeal, dismissed it. It is against that dismissal of his appeal that the plaintiff has with leave of this court, further appealed to this court upon the following 4 grounds of appeal:

 

1. The learned justices of the Court of Appeal erred and misdirected themselves in law and on the facts when they held that under rule 04502 of the Lagos State Civil Service Rules and Regulation 51 of the Lagos State Civil Service Commission Regulations, 1980, the appellant was automatically dismissed from the service of the 1st respondent.

 

PARTICULARS OF ERROR AND MISDIRECTION

 

(i)      the provisions of Rule 04502 and Regulation 51 aforesaid in so far as they provide for automatic dismissal without hearing, are in violation of the appellant’s right to fair hearing under section 33 of the Constitution of Federal Republic of Nigeria, 1979 and are therefore unconstitutional, null, void and of no effect.

 

(ii)     the provisions of the said Rule 04502 and Regulation 51 are self-contradictory in that they provide for automatic dismissal on one hand and, on the other hand, gave the discretion whether to dismiss or not:

 

(iii)    it was not the case of the respondents on their pleadings or in their evidence in court that the appellant had at any time been dismissed from the service of the first respondent.

 

(iv)    the facts of the case of Falomo v. Lagos State Public Service Commission which the learned justices of the Court of Appeal relied on can be distinguished from the facts of the present case and in any case has been impliedly overruled by section 35 (sic) of the 1979 Constitution.

 

2. The learned justices of the Court of Appeal erred in law in failing to hold that even if the interpretation of automatic dismissal given to Rule of the State Civil Service Rules and Regulation 51 of the Lagos State Civil Service Commission Regulations is correct, the respondents have waived their rights under these rules.

 

PARTICULARS OF ERROR

 

(i)      In the letter the respondent wrote to the appellant’s solicitors, they asserted that the appellant was still in their service.

 

(ii)     in their pleadings, the respondents only pleaded that the appellant was liable to summary dismissal but never said that he had been dismissed.

 

(iii)    even as late as August, 1983, the respondents sent a query to the appellant asking him to show cause why he should not be dismissed.

 

(iv)    during the trial, the respondents gave evidence to the effect that the appellant was still in their employment.

3. The learned justices of the Court of Appeal erred in law and on the facts when they refused to hold that the learned trial judge misdirected himself in law and on the facts when he held as follows:-

 

“Even if the allegations were true, all the plaintiff was expected to do was to report to his immediate senior officer, the Executive Secretary of the Board. This he did orally and in writing and having done so, he was expected to have been satisfied that he has done his duty not only as a good citizen, but also as an honest, vigilant and loyal civil servant. But by going further to write petitions to the Governor and the Code of Conduct Bureau on the same matter, it would appear that he has displayed extraordinary zeal to his own detriment ……… He said that as a result, he became demoralised and suffered mental anguish, injury and depression. This is not a desirable situation. But looking at the evidence before me, it seems the plaintiff himself has created the unpleasant situation in which he found himself.”

 

PARTICULARS OF MISDIRECTION

 

(i)      the appellant, as a senior and honest civil servant, was under a legal duty to expose a fraud within his department and it was in pursuance of that duty that he wrote the petitions to the Governor and the Code of Conduct Bureau.

 

(ii)     the appellant is entitled to protection under and (sic) 36 of the constitution of the Federal Republic of Nigeria, 1979 from victimization for his convictions.

 

4. The learned justices of the Court of Appeal erred in law and on facts when they rejected the appellant’s contention that the learned trial judge was wrong to have permitted the respondents to amend their pleadings after the close of the appellant’s case.

 

PARTICULARS OF ERROR

 

(i)      the amendment was granted in respect of facts that were material to the case and were available before the trial begun and which therefore, ought to have been pleaded.

 

(ii)     the appellant in his evidence at the trial court was not cross-examined on those facts relating to the amendment which the respondent knew or ought to have known were essential to their case.

(iii)    amendment was granted at a late stage of trial i.e. after the plaintiff had closed his case..”

 

On the appeal being entered in court and pursuant to the Rules of the Court the parties filed and exchanged their written briefs of argument.

 

In the appellant’s brief the following issues are set out as calling for determination to wit:-

 

“(a)    Whether Rule 04502 of the Lagos State Civil Service Rules and Regulation 51 of the Lagos State Civil Service Commission Regulations, in so far as they provide for the dismissal of an officer without prior hearing are in violation of appellant’s constitutional right to a fair hearing and are there-fore to that extent null and void?.

 

(b)     Whether on the pleadings and the evidence before the trial court the said Rule 01502 and Regulation 51 were applicable to the appellant’s case?

 

(c)     Whether in the pleadings and the evidence before the trial court the respondents had waived their right to dismiss the appellant under Rule 04502 and Regulation 51?

 

(d)     Whether the appellant was entitled to protection from the-court in so far as the events which led to his purported dismissal arose from his crusade to expose fraud within his department?

 

(e)     Whether the trial court was right to have permitted the respondents to amend their pleadings after the close of the appellant’s case?

 

(f)      Whether the case of Falomo v. Lagos State Public Service Commission was correctly decided and if not, whether it should be expressly overruled by the Supreme Court?”

 

The respondents in their own brief accepted the questions posed in a b, c, e and f above but contended that the question raised in (d) did not arise as that issue was not raised in the court below, this court is urged to strike out issue (d).

 

Before going further with this judgment, it is pertinent at this stage to state the facts how-be-it briefly: The plaintiff was appointed by the 1st defendant in 1973 into the civil service of Lagos State as a Senior Education Officer. He was promoted in 1978 to the post of Chief Inspector of Education in the Ministry of Education. In April, 1980, he was deployed to the 2nd defendant as Assistant Chief Inspector of Education and to serve as the head of the Services and Maintenance Department of the 2nd Defendant. it would appear from the pleadings and the evidence that the plaintiff did not have a pleasant time in the services of the 2nd defendant as, shortly after his resumption of duty with the 2nd defendant, he fell foul of members of the Supply and Maintenance Committee of the 2nd defendant over allegations by him of irregularities in the award of contracts by the said Committee. He wrote petitions in respect of these alleged irregularities not only to the Executive Secretary of the 2nd defendant but also to the Governor of Lagos State and, subsequently, the Code of Conduct Bureau. By letter reference No. LED/SMB/PS/T/108 of 17th December, 1980, the plaintiff was deployed to Muslim College Egbe in Lagos State as Principal of that school. The plaintiff denied receiving that letter but the learned trial judge found, on the evidence before him, that he did. Plaintiff failed or refused the posting and did not resume at the Muslim College, Egbe. In February, 1982, on being satisfied that the plaintiff had not been working for either defendant, the 1st defendant stopped payment of his salaries. Before this time, however, the Permanent Secretary in the Ministry of Health, by letter forwarded to the plaintiff through the Executive Secretary of the 2nd defendant the original of which was delivered to the plaintiff at his residence, he (the plaintiff) was requested to appear before a Medical Board for examination pursuant to the Civil Service Rules of Lagos State. The plaintiff failed to appear before the Board on the appointed date or any date thereafter. Rather the plaintiff engaged the services of the Chambers of Chief FRA Williams, S.A.N., to take up the issue of the stoppage of his salaries with the 2nd defendant. The Chambers wrote a letter to the 2nd defendant on 1st June, 1982 when the salary had been in arrears for 4 months that is February to May, 1982 (both months inclusive) complaining about stoppage of plaintiffs salary. The 2nd defendant sent a reply to the plaintiff’s solicitors. It is the contents of this reply that led the plaintiff to claim for damages for libel. In August, 1983 a query was sent by registered post to the residential address of the plaintiff but the plaintiff failed to reply to the said query. Rather he issued the writ leading to the present proceedings in October 1983. I may mention that the plaintiff was at all times relevant to this case a category 2 officer as defined in Regulation 2(2) and Rule 01003.

 

I shall begin by setting out the sections of the 1963 and 1979 Constitutions, Rule and Regulation that are relevant to this appeal:-

 

(1)     Section 33(1) and (2) of the Constitution of the Federal Republic of Nigeria 1979

(1)     In the determination of his civil rights and obligations, including and question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.

 

(2)     Prejudice to the foregoing provisions of this section, a law shall not be invalidated by reason only that it confers on any government or authority power to determine questions arising in the administration of a law that affects or may affect the civil rights and obligations of any person if such law:-

 

(a)     provides for an opportunity for the person whose rights and obligations may be affected to make representations to the administering authority before that authority makes the decision affecting that person; and

 

(b)     contains no provision making the determination of the administering authority final and conclusive.”

 

(2)     Regulation 51 of the Lagos State Civil Service Commission Regulations 1980

 

“(1)   Without prejudice to the power to Institute disciplinary proceedings in respect of any absence from duty without leave or reasonable cause, where a civil servant is absent from duty without leave or reasonable cause, the disciplinary authority may dismiss him, without allowing the procedure prescribed, in Regulation 57 or 58.

 

(2)     A Civil servant 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:

 

(a)     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

 

(b)     resigning or purporting to resign his appointment without having first given due notice and serving for the period of the notice of such resignation or else paying one month salary in lieu thereof in accordance with the provisions applicable in the Civil Service in that behalf. Provided that if the civil servant concerned can later satisfy the disciplinary authority and the circumstances of having committed any of the acts or omissions aforesaid 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.

 

(3)     Rule 04502 of the Lagos State Civil Service 1982

 

(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 04508 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:-

 

() 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

resigning or purporting to resign his appointment without having first given due notice and serving for the period of the notice of such resignation or else paying one month salary in lieu thereof in accordance with the provisions applicable in the Civil Service in that behalf. Provided that if the officer can later satisfy the disciplinary authority that the circumstances of his having committed any of the act or omissions aforementioned 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.”

 

(4)     Section 22(1) of the Constitution of the Federation. 1963

 

In the determination of his civil rights and obligations a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality, provided that nothing in this subsection shall invalidate any law by reason only that it confers on any person or authority power to determine:-

 

(a)     question arising in the administration of any law that affect or may affect the civil rights and obligations of any person; or

 

(b)     chieftaincy questions.”

 

Questions (a) and (f):

 

Mr Oyewole, learned counsel for the appellant, in his written brief, urges that this court, when considering the fundamental rights provisions of the Constitution, should apply a broad interpretation. He observes that both Regulation 51 and Rule 04502, empower a disciplinary authority to dismiss an affected officer on ground of misconduct mentioned therein without following, the proper procedure. Learned counsel also observes rather erroneously though that Regulation 51, in particular, does not contain the proviso which allows an affected officer to make representations to the disciplinary authority after his dismissal and upon which representations the disciplinary authority may decide to rescind the dismissal. Learned counsel, then submits that, under section 33(2) of the 1979 Constitution, an officer must be allowed, to make representations before a decision is taken to dismiss him and as Regulation 51 and Rule 04502 provide otherwise, they are both null and void. He submits further that both the Regulation and the Rule provide for automatic dismissal of an officer without any hearing and without any positive decision or action on the part of any person or authority. He submits that the provisions are void, firstly for uncertainty and secondly, as being in clear violation of section 33(1) of the Constitution. Concluding his arguments on this question, learned counsel submits in his brief as follows:-

 

“4.09           With regard to the issue of uncertainty, it is provided that the officer shall be treated as having been dismissed from the very date of his having committed one of certain acts or omissions. The question is who deter mines whether, as a question of fact, the offending acts have been committed? Is it the disciplinary authority, or is it any individual officer with an axe to grind against a fellow worker, or is it (as in this case) a court of trial after the purported dismissal has been challenged? If, as would seem to be the most obvious answer, it is the disciplinary authority that would immediately raise the issue of whether that authority must afford the accused officer a right to make representations before it makes a finding whether he was indeed absent from duty or not In that case, surely the dismissal cannot be said to be automatic.

 

4.10   Flowing from the last Paragraph, it is abundantly clear that before the disciplinary authority can validly reach a decision that an officer has violated Regulation 51(2) or Rule 04502(b), e.g by being absent from duty without official leave in must first afford him the opportunity to make representations in reply to the allegation. Accordingly, Regulation 51′(2) and Rule 04502 are in clear violation of 33(1) and (2) of the Constitution and are accordingly null and void.

 

In the premises, it is submitted that the first issue for determination must be answered in the affirmative and on that ground alone, this appeal should be allowed.”

 

Mr. Oyewole urges us to overrule our decision in Falomo v. Lagos State Public Service Commission (1977) 11 N.S.C.C. 230.

 

Mrs Okuwobi for the respondent, in her own written brief which she adopted at the hearing of this appeal, submits that Regulation 51 and Rule 04502 conform with the decision of this court in Falomo v. Lagos State Public Service Commission (supra) and as such she urges us to hold that the Regulation and the Rule are valid and in conformity with the rule of natural justice as to fair hearing and section 33(2) of the 1979 Constitution. She urges us to abide by our decision in Falomo v. Lagos State Public Service Commission.

 

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 sine-qua-non to a proper and fair adjudication. This rule has as its twins pillars the legal maxims (a) audi alteram partem, and (b) nemo judex in causa sua. We are in this appeal concerned with the first of the two pillars. 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. (part 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. (part 106) 652; Olatunbosun v. N.L.S.E.R. Council (1988) 3 N.W L.R. 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 alteram partem rule is but a sham. The issue before us is not whether in the dismissal of civil servant for misconduct there must be observance of the rule of natural justice as to fair hearing as enjoined by section 33(1) of the 1979 Constitution, but whether Regulation 51 of the Lagos State Civil Service Commission Regulations 1980 and Rule 04502 of the Lagos State Civil Service Rules, 1982 (both of which govern the terms of contract of employment of the plaintiff with the 1st defendant) are in conflict with section 33(1).

 

Learned counsel for the appellant has called on us to rule that in so far as Regulation 51 and Rule 04502 provide for dismissal before hearing they violate section 33(1) of the 1979 Constitution and are consequently void. 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 officers 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.

 

Regulation 51 is in pari materia with Regulation 52 of the Lagos State Public Service Commission Regulations, 1968 which came for consideration by this court in Falomo v. Lagos State Public Service Commission (supra). In that case, plaintiff had been dismissed, without a hearing, for absenting himself from duty without leave or any cause. He challenged his dismissal in the High Court but failed. On appeal to this court, Idigbe, J.S.C., delivering the judgment of the Court observed at pages 235 – 236 of the report:

 

“In the realm of administrative law it is settled by a long line of cases that two cardinal principles namely, that no person shall be condemned unheard and that none Shall be a judge in his own case are implicit in the concept of fair adjudication by any authority which has any duty to act judicially.

 

In recent times, however, the courts exercising supervisory authority have taken the view that it is no longer necessary in order to establish that a duty to act judicially applies to performance of a particular exercise by an administrative body, person or tribunal, to show that the exercise is essentially or analytically of a judicial character. See Lord Reid in Ridge v. Baldwin (1964) A.C. 40 at 75 76, or that it involves the determination of a lis inter partes. it is enough if it (i.e. the administrative body) is exercising judicial functions in the sense that it has to decide on the materials before it between an allegation and defence…… The modem concept is that the duty placed on such a body is to act fairly in all such cases. No labels such as judicially or quasi judicially are (any longer) necessary as they tend to confuse see Athanasius Kelada Hart v. The Military Governor Rivers State and Ors. (1976)11 S.C. 211 at 238. But such a duty on the part of an administrative body to act judicially or fairly in the sense of applying the principle of audi alteram partem may be excluded, expressly or by necessary implication by statute however, statutory provisions exclude the need for prior hearing of the party whose rights are to be affected by the decision of an administrative body, the courts have in such cases held that if, in addition, the statute contains provisions for an administrative appeal from, or judicial review on, the merits of the decision of that body these are sufficient to negative the existence of any implied duty on the part of such a body (i.e. administrative body) to apply the audi alteram partem rule before the original decision is made.”

 

The learned judge, after referring to a number of authorities, went on to say at pages 240-241:-

 

“As already indicated, it is clear from a close examination of Regulation 52 aforesaid that the statute invests the disciplinary authority (i.e., the Commission) with the discretionary power to either initiate proceedings under Regulation 55 and 58 of the said Edict in cases where it receives a complaint relating to a public officer who absent himself or herself from duty without leave or reason-able cause OR ignore the provisions of the said Regulations i.e. 55 or 58 and dismiss the officer forthwith if satisfied that the complaint is valid. There is of course, need for investing the commission with discretion. The raison d’etre for this provision is not far to seek. If of course, an officer who absents himself from duty without leave or reasonable cause can be found, or does not obstruct efforts by his superior to get him to explain or justify his behaviour and his explanations are considered unsatisfactory by his superior officers then upon a report made to the Commission, that body may (and quite often should), pursue the course provided by Regulations 55 and 58 aforesaid before taking a decision on the issue. If, however, the officer absenting himself from duty without leave either (as in the instant case) cannot be found to be queried or invited for his explanation (if any) by his superior officer or again, as in the instant case), refuse to sign for documents either querying or inviting explanation for his behaviour, it will of course, be absurd to expect the disciplinary authority, in those circumstances, to embark upon a futile exercise under the provisions of Regulations 55 and 58 aforesaid. The above, it seems to us, together constitute the raison d’etre for the Special provisions in the regulations for and the special treatment of misconduct by absence without cause from duty. Hence the existence of the ‘peculiar’ course to be adopted by the Commission with respect of public officers who absent themselves from duty without leave or reasonable cause. Under the Regulation aforesaid (i.e. 52) the Legislature has invested in the Commission the discretion either to apply the audi alteram rule of the principle of natural justice prior to its decision (and it is expected that the membership of the Commission being reasonable will always pursue this course wherever and whenever possible) or, in appropriate cases (such as the case in hand, where the offending public servant is not only unreasonable in his behaviour but also cannot be found), to take a decision, on a complaint before it provided the grounds for taking such a course abound in the said complaint from the appropriate quarter, without first giving the officer concerned a hearing. The need for the application of the audi alteram partem rule is amply taken care of in the said Regulation for it affords the public officer concerned the chance of a hearing subsequent to the decision of the disciplinary authority if the public officer affected eventually seeks one. A review of the order by the body making it, such as is provided for under proviso to the said Regulation is a Judicial one. As was stated by Lucas, J:

 

“I can see nothing in the procedure laid down by the Act which departs from the principles of natural justice. In deciding to issue a prohibitory order that the Board may acting in quasi- judicial or in a ministerial capacity; in whichever of the two capacity it is acting, the actual making and promulgation of the order is an Administrative act. Thus the prescribed course of procedure provides for an administrative act followed by a judicial hearing if an applicant seeks one. Such a procedure constitutes in my opinion a sufficient compliance with the principles of natural justice……. “

 

(See Lucas, J. in Ex. pane H.M.H. Publishing Company, Inc. (1964) Queensland Reports) 261 at 289.

 

On a close examination of the proviso to Regulation 52 it is clear that upon the exercise of his right thereunder by the public officer affected the Commission must give him a hearing and depending on the quality of his explanations it may go further and institute proceedings (even at that late stage) under the provisions of Regulation 55 and 58 and even REVOKE the order of dismissal and not merely impose lesser penalty or punishment. This is because even at that late stage the Commission, in the words of the Regulation, may without prejudice to the power to institute disciplinary proceedings in respect of the absence with a view to a lesser punishment than dismissal, REVOKE the dismissal: At such subsequent inquiry the officer affected, by virtue of the provisions of Regulations 55 and 58, will be at liberty to call witnesses, examine documents which were placed at the disposal of the Commission and cross-examine witnesses, if any, who testified and may still testify against him.”

 

The validity of Regulation 52 was upheld as not infringing the rule of natural justice that a man be not condemned unheard.

 

Mr. Oyewole calls on us to overrule Falomo v. Lagos State Public Service Commission. In paragraph 4.04 of his brief, he has stated thus:

 

“4.04           We would respectfully draw the Court’s attention to the following points.

 

(a)     The present rules differ from those considered by the court in Falomo’s case.

 

The old regulation 52 is now Regulation 51 (1), while Regulation 51 (2) is new.

 

(b)     The new Regulation 51 does not contain the proviso to the old Regulation 52, but Rule 04502 contain the proviso.

 

(c)     In Falomo’s case the constitutionality of the old Regulation 52 was not challenged and the action was based on the common law rules of natural justice.

 

(d)     In Falomo’s case the LSPSC expressly dismissed Dr. Falomo; in this case, the appellant was never expressly dismissed.

 

(e)     Dr. Falomo’s case was decided when the provisions of the 1963 constitution  in force; there are significant difference between 22(1) of the 1963 Constitution (which was the relevant section) and sections 33(1) & (2) of the 1979 Constitution.”

 

But in paragraphs 4.22 to 4.26 of the brief he argues:-

 

“4.22           The Court of Appeal relied heavily on the decision of this court in Falomo v.Lagos State Public Commission (1977) 11 N.S.C.C. 230 in holding that Regulation 51 and Rule 04502 were not unconstitutional. We have sought earlier in this brief to distinguish Falomo’s case from this case and to argue that Falomo’s case is not a binding authority on the validity of the said Rules under the 1979 Constitution. However, in addition to and as an alternative, we shall also ask the court to expressly overrule Falomo’s case for the following reasons—

 

(a)     the constitutionality of the former Regulation 52 under section 22 of the 1963 Constitution which was then in force was neither canvassed before nor considered by the court, but rather, was based on the common law principles of natural justice.

 

(b)     even on the basis of common law, the decision was wrong as the common law principles were incorrectly stated or applied; in particular, the decision of Lord Denning, MR, in Edwards v. Sogat (1970) 3 All E.R. 689 was not cited or considered by the court.

 

(c)     even if the common law principles were correctly stated by the Court in Falomo’s case, they were in applicable in Nigeria in so far as the exceptions to the rules of natural justice which were applied by the court were based on the English doctrine of the Supremacy of Parliament, which conflicts with the Nigerian Constitutional structure.

 

4.23   The difference between section 22(l) of the 1963 Constitution and sections 33(1) & (2) of the 1979 Constitution have already been noted and need not be repeated. It is, however, our submission that even under the 1963 Constitution the words fair hearing are broad enough to render the old Regulation 52 (now 51) void. Fair hearing implies that there must be a hearing before one can consider whether it is fair. The proviso only states that a law shall not be invalidated merely by reason that it confers on any person or authority the power to determine question arising in the administration of a law. It is submitted that the proviso was directed towards the issue of the constitution of a tribunal. It does not in any way abridge the requirements of fair hearing and in particular does not authorise an administrative tribunal to reach a decision without granting a hearing to the party to be affected. Accordingly, it is submitted that the old Regulation 52 was void under the 1973 Constitution.

 

4.24. The Court in Falomo’s case also relied heavily on two English cases:-

 

(a)     Cooper v. Wandsworth District Board of Works (1863) 14 C.B. (N.S.) 180.

 

(b)     Vestry of St. James v. Feary (1890) 24 Q.B.D. 703 which laid down the principle that where the express words of a statute or law show clearly that I was intended that a tribunal could take a decision without hearing a party, then the rule audi alteram partem would be excluded. Apart from the fact that this exception to the rules of natural justice flows directly from the doctrine of the supremacy of parliament, this conflicts with the case of Edwards v. Sogat (1970) 3 All E.R. 689, 696 which was neither cited to nor considered by the court. In that case, the rules of atrade union provided that a member would automatically lose his membership if he was in arrears of membership dues for six weeks. The rules further provided that a member who lost his membership as a result of the automatic forfeiture provisions could re-apply for membership. The English Court of Appeal held that the rule was ultra vires, null and void. It is submitted that this case was on all fours with Falomo’s case and ought to have been followed, in preference to the cases cited and relied on by the court.

 

4.25   When considering the English cases on constitutional and administrative law, it is necessary to bear in mind the English doctrine of the supremacy (or sovereignty) of parliament which states that the courts cannot challenge the validity of an Act of Parliament and their sole function is to apply the Acts. See Lee v. Bude and Torrington Junction Rly (1871) E.R. 6 C.F at p. 582. This doctrine arose out of the political and constitutional arrangements of the UK and is one of reasons it does not have a written constitution. It may be noted that this doctrine was not always applicable in England and that up to the seventeenth century, i.e. before Cromwell’s revolution, the English courts had the power to strike down statutes which they held to be contrary to equity or the common law.

 

(b)     Day v. Savage (1614) Hob 87 In the latter case, it was held that;

 

An Act of Parliament made against natural equity, as to make a man judge in his own case, is void in itself.

 

In Nigeria, we operate under written constitution, and any statute which conflicts with any of the provisions of the constitution is void. Accordingly, while a statute in the UK may validly exclude the application of the rules of natural justice, no statute can be validly passed in Nigeria which violates those rule. (For this purpose we may ignore the aberration of military rule).

4.26   In the circumstances, it is submitted that Falomo’s case was wrongly decided and should be expressly overruled.”

 

First, let me say this that having sought to distinguish Falomo v. Lagos State Public Service Commission from the present case, it is not open to learned counsel at the same time to urge on us to overrule the case – see: Federal Civil Service Commission v. Laoye (1989) 2 N.W.L.R. 652.

 

Secondly, paragraph 4.04 with respect to learned counsel, contains some vital inaccuracies. The old Regulation 52 considered in Falomo and cited in the judgment of this court was in no way different to the new Regulation 51 under consideration in this appeal; they are indeed word for word, the same Falomo was decided on the need for fair hearing in dealing with a case of misconduct involving a civil servant; no reference was made to any constitutional provision. True enough, section 33(2) of the 1979 Constitution seems wider in scope than the proviso to section 22(1) of the 1963 Constitution, but the essential thing is that both section 33(1) and section 22(1) provide for fair hearing. Again, it is observed in paragraph 4.04 that in Falomo, the appellant was dismissed but in the present appeal, the appellant was not dismissed. Assuming this to be so, whether or not the appellant in the appeal on hand was dismissed is irrelevant to the question whether Regulation 51 and Rule 04502 do not provide for fair hearing and are thus in conflict with section 33(1) of the 1979 Constitution which requires fair hearing. The question revolves on the interpretation of the Regulation and Rule vis-à-vis section 33(1). I therefore conclude that I can ‘see nothing in the present appeal to distinguish it from Falomo on the issues under consideration.

 

Having disposed of paragraph 4.04, I now turn attention to paragraphs 4.22 to 4.26 of the appellant’s brief in which learned counsel has argued against the correctness of the decision in Falomo. The circumstances under which this court will overrule its own earlier action are clearly stated in such cases as Eperokun v. University of Lagos (1986) 4 N.W. L.R. (part 34) 160 Federal Civil Service Commission & Ors. v. Laoye (1989)2 N. W L. R. 652 and Asanya v. The State (1991) 3 N. W L. R (part 180) 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 the 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 S.C. 1 (1985) 1 N.W.L.R. (part I) 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 474 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. (part 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, t 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 t will not perpetuate injustice in the name of stare decisis, he submitted. He relied on Bucknor- MacLean & Anor. v. Inlaks-Ltd. (1980) 8-11 S.C. I p. 25; James G. Orubu v. N.E.C. & 13 Ors. (1988)5 N.W.L.R (part 94) 323 p. 356; UB.A. v. Stahibau G.M.B.H.(1988) 2 N.W.L.R.(part 110) 374p. 406Adegoke Motors v. Adesanya (1989) 3 N.W.L.R. (part109) 250 pp.274-275.

 

I wish to begin my consideration of this aspect of the appeal by restating the attitude of this court to the time honoured principle of stare decisis. This court respects precedent, even though t 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 t need not do so when the interest of justice dictates otherwise. So t will not hold itself hamstrung by precedent when t has been shown that an established principle is beset with a substantial error such that to follow it will amount to furthering injustice. Nnameni, J.S.C. of blessed memory encapsulated the principle in James Orubu v. National Electoral Commission & 13 Ors. (1988) 5 N. W L.R. 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 decisions has been dealt with in numerous decisions which were referred to by counsel they include: Bucknor-Maclean & Anor. v. Inlaks Limited (1980) 8-11 S.C. 1; Surakatu v. Nigerian Housing Development Society Ltd. (1981) 4.S.C. 28; Odi & Anor v. Osafile & Anor (1985) 1 S.C. 1 (1985) 1 N.WLR. (part 1) 17; Oduola v Coker (1981) 5 S.C.187, 230-231; Bronik Motors v. Wema Bank Ltd. (1983) 1 S.C.N.-R. 288; Akinsanya v. U.B.A. Ltd. (1986) 4. N.WL.R. (part 35) 273,323; Prince Yaya Adigun v. Attorney-General of Oyo State (1987) 4.S.C. 272, 342344, (1987) 2 N.W.L.R. (part 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 proceedings, an error is pointed and 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. Lawan-son (1971) 1 N.M.L.R. 380.

 

With the principles enunciated in the above dicta (which are in line with, other decided cases on the point) in mind, I now consider the request by learned counsel for the appellant that we do depart from our decision in Falomo.

 

The first reason given for the request is that the constitutionality of the former Regulation 52 was neither canvassed before nor considered by this court but rather that Falomo was based on the common law principle of natural justice. In expatiating on this, learned counsel points out that no reference was made to, section 22(1) of the 1963 Constitution then in force and goes on to argue that even under that section the old Regulation 52 (now Regulation 51) would be void. He submits that fair hearing implies that there must be a hearing before one can consider whether it is fair. He argues that the proviso to section 22(1) did not abridge the requirement of fair hearing nor did it authorise an administrative tribunal to reach a decision without granting a hearing to the party to be affected. He then submits that the old Regulation 52, considered and declared valid in Falomo was void under the 1963 Constitution, I agree with learned counsel that section 22(1) of the 1963 Constitution provided for fair hearing. In my view both section 22(1) of the 1963 constitution and section 33(1) of the 1979 Constitution are a re-statement of the age long legal maxim that a man be not condemned unheard by an unbiased arbiter. This legal maxim either under the English common law or under our Constitution means one and the same thing. A careful examination of the judgment of this court, per Idigbe, J.S.C., in Falomo will inform one that this court in that case dearly understood what it was deciding. A judgment of any court deciding the common rule on fair hearing will be relevant in the determination of the same question of fair hearing under our constitutional provisions. it has not been suggested that our constitutional provisions either abridge or extend the application of the audi alteram partem rule under the common law. That being the case therefore the non reference to section 22(1) of the 1963 Constitution in Falomo will not derogate from the quality of this court’s judgment in that case nor its relevance in another case where the provisions of the 1963 or 1979 Constitution are being considered.

 

The second reason given by learned counsel for the appellant for asking us to overrule Falomo is that the English authorities cited with approval by this court in that case are in conflict with the Court of Appeal’s (England) decision in Edward v. Society of Graphical and Allied Trades (1970) 2 All E.R.689696, which was neither cited nor considered by the court in Falomo.

 

Learned counsel argues that Falomo was on all fours with Edwards and ought to have followed the latter in preference to the cases cited and relied on by this court in Falomo. With respect to learned counsel, I do not agree with him that Falomo was on all fours with Edwards. In Edwards the rule of the trade union therein considered provided for automatic termination of membership where a member was in arrears for over six weeks in the payment of his dues. The rule moreover gave a branch committee of the union unfettered discretion to terminate member-ship of a member without a hearing and went on to deprive such a member of a right of appeal from the decision of the branch committee to the executive council of the union. The old Regulation 52 and the new Regulation 51 as well as Rule 04502 are clearly not on all fours with the trade union rule considered in Edwards. As Lord Denning MR. put it at page 696 of the report:

“Thus if the union should make a rule purporting to give itself uncontrolled discretion to expel a member without hearing him, that rule would be bad. No union can stipulate for a power to expel a man unheard, see Faramus v. Film Artistes’ Association per Lord Pearce. And the union cannot get round it by calling him a temporary member. A temporary member is just as much a member of the union as a full member. He pays his dues just the same; and he is entitled to equal protection by the law. The union has no right to expel a temporary member arbitrarily any more than it has a right so to expel a full member. To call him a temporary member is only a covert way of claiming to exclude him at his discretion; and, as such, it cannot be allowed”

 

I cannot see how Edward could be said to be different to the English authorities cite and relied on by this court in Falomo. All these cases frowned on any law that negates the rules of natural justice. Had Edwards been cited to this court in Falomo, this court would have relied on it as yet confirming the supremacy of the rules of natural justice in proper adjudication under administrative law. It may be that under the British constitutional law the supremacy of Parliament is recognised but here in Nigeria it is the supremacy of the Constitution that prevails. Our attention has however, not been drawn to any Act of parliament that has excluded the common law rules of natual justice in its application and I shudder to think that there is such an Act.

 

In conclusion I am not persuaded that Falomo was wrongly decided by this court. The reasoning of this court, per Idigbe, J.S.C. in coming to the conclusion that the old Regulation 52 (which is pari materia with the Regulation and Rule under consideration in this appeal) did not breach the rule of natural justice is very illuminating and I adopt it in arriving at the conclusion that Regulation 51 and Rule 04502 are not in breach of section 33(1) of the 1979 Constitution.

 

The court below per Babalakin, J.C.A., (as he then was applied Falomo in holding that the provisions of rule 04502 are neither in violation of section 33(1) of the 1979 Constitution nor are they null and void. I am in full agreement with the court below on this and I too would hold that both Regulation 51 of the Lagos State Civil Service Commission Regulations 1980 and Rule 04502 of the Lagos State Civil Service Rules are not In conflict with section 33(1) of the 1979 Constitution and are valid. Both the Rule and the Regulation give an officer an opportunity, at his Instance, If he so wishes, of being heard by the disciplinary authority.

 

Question (b)

I have already stated the facts of this case. The defence is to the effect that the plaintiff did not turn up at his duty post nor was he seen to work anywhere else for the defendants. That is the sum total of the case for the defence both on the pleadings and evidence. Such a conduct on the part of the plaintiff would come within the provisions of Regulation 51 and Rule 04502 necessitating the disciplinary authority, had it so wished, to exercise its discretion to dismiss him without a hearing. I would therefore, answer question (b) in the affirmative.

 

Question (c):

 

Both Regulation 51 and Rule 04502 give the disciplinary authority a discretion to either dismiss the plaintiff after following the procedure prescribed in Regulation 54 and Rule 04508 (which procedure ensures fair hearing) or to dismiss him without following the said procedure, that is, without affording him a hearing. There is nothing in the amended statement of defence nor in the evidence led for the defence that points to the defendants exercising their discretion to dismiss the plaintiff without a hearing. On the contrary in 1983, the plaintiff was given a query in which a number of allegations were levied against him and he was required to give an answer thereto within a given period – (See Exhibit “00”). From this fact alone it would appear that the defendant resorted to the procedure prescribed under Regulation 54 and Rule 04508. Having opted to deal with the plaintiff in the manner provided in the Rules and Regulations for taking disciplinary proceedings, the defendants must be taken to have waived their right to dismiss the plaintiff summarily without a hearing.

 

It is noted that the learned trial judge found that the plaintiff by his conduct, was automatically dismissed from the defendant’s service under Rule 04502 and Regulation 51. He said:-

 

“In the case in hand I have found dismissal of the plaintiff valid and in the circumstance the question of reinstatement does not arise. I have already reached the conclusion that the plaintiff in the case in hand repudiated his contract of service with the defendants for being absent from duty without permission or any reasonable cause, that his punishment under section 19 and 21 of the Standard Conditions of Service for Lagos State Parastatals exhibit BB, Rule 04502 of the Civil Service Rules exhibit AA and regulation 51 of the Lagos State Civil Service Commission Regulations 1980 is automatic dismissal from the very date 17th December, 1980 he was absent from duty without leave or reasonable cause…”

 

The Court of Appeal also adopted the finding that under Regulation 51 and Rule 04502, the plaintiff by his act of not reporting for duty, was automatically dismissed from the service. With profound respect to both the learned trial judge and the justices of the court below, I do not accept their finding. This was not the defendants’ case on the pleadings. In paragraphs 14 of the amended statement of defence the defendant avers as follows:

 

“14.   Further to paragraph 13 of this statement of defence the 1st and 2nd defendants aver that the plaintiff failed to assume his new duty post neither did he report for duty regularly at the office of the 2nd defendant. The 1st and 2nd defendants will contend that by his action the plaintiff was liable to summary dismissal under the Civil Service Rules and Standard Conditions of Service for Lagos State Parastatals. The 1st and 2nd defendants will at the trial of this suit rely on the Civil Service Rules and Standard Conditions of Service for Lagos State parastatals. The defendant shall also rely on letter dated 3rd June, 1982 at the trial of this suit.”

 

What they pleaded in that paragraph was that the plaintiff was liable to summary dismissal and not that he was summarily dismissed. In his evidence D.W1 deposed inter alia thus:

 

“The plaintiffs employment was not terminated.”

 

This pleading coupled with the evidence of D.W. 1 above would appear not to be in consonance with the finding of both the learned trial judge and the learned justices of the Court of Appeal to the effect that the plaintiff was automatically dismissed from service. This court has warned on a number of occasions of the undesirability of a court formulating a case for the parties different to the case put up by them in their pleadings. See: Olatunbosun v. NISER Council (supra); Idika v. Esiri (1988) 2 N.W. L.R. (part 78) 563; Adeniji vAdeniji (1972) 4 S.C. 19; Yakassai v. Incar Motors (1975) 5 S.C. 107. Had thetrial court and the Court of Appeal restricted themselves to the case put forward by the, parties, particularly the defendants, they would not have found, as they did, that the plaintiff was “automatically dismissed” from the service.

 

The two courts below must have been led into this finding by their interpretation of Regulation 51 (2) and Rule 01502 (b) which both provide that an affected 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 date of his having committed any of the acts or omissions contained therein. A decision to dismiss normally takes effect from the date of the decision or a later date. What in my respectful view, Regulation 51(2) and Rule 04502 (b), seek to do is to make a decision by the disciplinary authority to dismiss an affected officer to take effect from a date earlier than the date of the decision, that is, retrospectively from the date the misconduct mentioned therein was committed. This in my view, is the only reasonable interpretation to put on Regulation 51(2) and Rule 04502 (b). I do not think that the law giver would in Regulation 51(1) and Rule 04502 (a) give a discretion to the disciplinary authority to dismiss either with or without a hearing only to turn round later to make the dismissal automatic without the will of the disciplinary authority. Such an interpretation, with respect, would be absurd. The finding of automatic dismissal does not find favour with me and I reject it. As this is the crucial finding that led to the dismissal of plaintiff’s case by the courts below, it follows that his appeal to this court will be allowed.

 

Question (d)

 

Learned counsel for the respondent rightly, in my view, pointed out that this question does not arise from the judgment of the court below. The issue was raised in the grounds of appeal from the High Court to the court of Appeal but in appellant’s brief, it was abandoned in that no issue touching on it was formulated. I do not consider it an issue arising from the judgment of the court below and consequently I discountenance it.

 

Questions (e)

 

It is contended on behalf of the appellant that the learned trial judge was wrong in granting leave to the defendants to amend their statement of defence after the close of the case for the plaintiff. Babalakin, J.C.A., in his lead judgment observed:-

 

‘The application to amend the statement of defence was brought under Order 25 Rule 1 of the High Court of Lagos Civil Procedure Rules which provides-

 

The court or a judge in Chambers may at anytime of the proceedings, allow either party to after or amend his endorsements or pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.

 

The parties had joined issued in their pleadings on the matter on which this further amendment was sought to be made. The amendment did therefore not take the appellant by surprise nor did it introduce a new element to the case.

 

The main purpose of allowing an amendment as Indicated under order 25 rule 1 above Is to enable the court to determine the real questions in controversy between the parties.

 

The order and rule under which the application was brought give the learned trial judge discretion to allow such amendment at any time of the proceedings. The only conventional restriction in granting such request is consideration of the fact that It must not be prejudicial to the other party. At the trial where this objection was taken the learned trial judge wrote a considered ruling of seven pages in which he considered relevant authorities.

 

He finally came to the conclusion that the amendment sought in the instance (sic) case will enable court to determine the main question in issue and it will not cause any injustice to the plaintiff.

 

I must say that I too am in agreement with the reasoning and conclusion reached in the learned trial judge’s considered ruling in the circumstances of this case.

 

The amendment sought was to elucidate further on a matter already pleaded, it will therefore not be prejudicial to the appellant and I do hold that the amendment was right (sic) allowed.”

 

I agree entirely with him. The plaintiff in his amended statement of claim pleaded thus:-

 

“28.   In the said 2nd defendant’s letter of 11th June, 1982, the 2nd defendant made several false allegations against the plaintiff. The plaintiff hereby denies each and every allegation contained in the said letter and will contend at the trial that the letters mentioned therein and dated 17th December, 1980 and 22nd September, 1981 and purportedly sent to the plaintiff were never written and the plaintiff never received the same.”

 

Thus, it was the plaintiff himself who raised the issue of the non-receipt by him of the defendant’s alleged letter dated 17th December, 1980. He led evidence in support of his paragraph 28 by denying at the trial that he received such a letter. The defendants in turn led evidence to show not only that the letter was written but that he received it. In the course of the trial, learned counsel for the defendant thought it prudent to amend the statement of defence to plead that the letter was received by the plaintiff. Learned counsel for the plaintiff objected to the amendment sought and the learned trial judge, in a considered ruling overruled the objection and granted the amendment sought. I think he is right and I also think that the Court of Appeal is clearly right in affirming the decision to allow the amendment.

 

After the amendment had been made and defence had closed, plaintiff was recalled at the instance of his counsel to give evidence in rebuttal. Thus, apart from the decision to grant the amendment being right in law, the plaintiff, by his conduct, cannot now question the correctness of the decision. I therefore, answer Question (e) in the affirmative.

 

Having disposed of all the issues canvassed in this-appeal and in view of my conclusion that both the trial judge and the Court of Appeal were wrong to hold that the plaintiff was automatically dismissed from the service, I now turn attention to his claims. This is so because in his Notice of Appeal the plaintiff seeks from this court by way of relief the granting of all the claims contained in paragraphs 1, 2(i) and 3 of the amended writ of summons. In claims 1(i) and (ii) plaintiff claimed a declaration that the 1st defendant unjustifiable repudiated his contract of service by wrongfully refusing to pay him his salaries from 1st February, 1982 and N500,000.00 damages for wrongful dismissal. I cannot see how these claims can succeed. There is abundant evidence accepted by the learned trial judge that for over two and a half years, the plaintiff absented himself from work. On the evidence, therefore, I do not see how I can grant the declaration sought. It would amount to a wrong exercise of discretion since the grant of a declaratory relief is discretionary.

 

Having also held that the plaintiff was not automatically dismissed and there being no evidence that he was at any time dismissed from the service by the 1st defendant, I cannot see how his claim for damages for wrongful dismissal can succeed. It is also refused.

 

In alternative claim 1 (iii) (a) and (b) plaintiff also claimed a declaration that the contract of service between him and the 1st defendant entered into in or about 1973 still subsists and asked for an order of payment of arrears of salary and all other entitlements due to him from the 1st defendant from 1st February, 1982 until the date of the judgment. I think he is on a firmer ground in respect of this alternative claim. As I have stated earlier in this judgment, it is not the defendant’s case that he was ever dismissed. Indeed D.W. 1 was emphatic in his testimony when he said:-

 

“plaintiff’s employment was not terminated”

 

and having held that the two lower courts were wrong to hold that he was automatically dismissed, the logical conclusion is that plaintiff’s contract of employment still subsists. The 1st defendant had the discretion under Regulations 51 and 54 and Rules 04502 and 04505 to dismiss him for misconduct, but did not do so. A query was issued to the plaintiff which he did not reply to. Strangely enough the necessary procedure consequent on this query was not pursued as a result of which no decision up to date has been made to dismiss him. In the circumstance, I cannot but hold that his contract of employment subsists.

 

I do not know the authority the 1st defendant has in stopping payment of salaries to the plaintiff. D.W. 1 in his testimony said:-

 

“It is not the practice in the Civil Service to stop salary of any officer to make him comply with instruction. …. The non-payment of salary for two years is abnormal but we are dealing with abnormal situation.”

 

As no authority has been shown empowering the 1st defendant to stop payment of salary to the plaintiff while still in service, I am compelled to order as in claim 1 (i) (b) that his salaries and allowances from 1st February, 1982 to the date of this judgment be paid to him. I however, refuse his claim for N25,000.00 general and aggravated damages suffered “as a result of the 1st defendant’s deliberate and malicious stoppage of the plaintiff’s salary.” I am not satisfied that the 1st defendant acted maliciously, having regard to the evidence accepted by the learned trial judge.

 

As regards claim 2() there is no iota of evidence to support it. No evidence has been led to show that it was the 2nd defendant that induced the 1st defendant to do anything adverse to plaintiff’s interest. The claim is refused. Claim 2(ii) having been granted by the court below and against which there is no appeal to this court, does not come up for consideration and I say nothing on it.

 

Claim 3 also must fail. I am not satisfied on the evidence that plaintiff has established any case against the defendants to justify my granting that claim. The end result of all I have been saying is that this appeal succeeds as against the 1st defendant and it is allowed. Plaintiff’s claims 1(i), 1(ii), 1(iv), 2(i) and 3 are however dismissed. His alternative claims 1(iii)(a) and (b) are granted. I declare that the contract of service between the plaintiff and the 1st defendant entered into in or about 1973 still subsists and I order that the 1st defendant do pay to the plaintiff his salaries and other entitlements from 1st February 1982 until the date of this judgment. I award to the plaintiff against the 1st defendant costs of this appeal assessed at N1,000.00 and N300.00 and N500.00 as costs in the trial court and Court of Appeal respectively. The appeal as against the 2nd defendant is dismissed with N1,000.00 costs to the 2nd defendant.

 

KARIBI-WHYTE, J.S.C. The decision in this appeal turns essentially on the proper construction of the provisions of Rule 51 of the Lagos State Civil Service Rule Appellant having argued that his constitutional right to fair hearing under section 33(1) and (2), has been violated, a full court was empanelled for determination of the question of the conflict with the entrenched provisions of the Constitution, 1979.

 

I have read in draft the judgment of my learned brother, Ogundare, J.S.C., in this appeal. I agree entirely with his reasoning and conclusion allowing the appeal. Appellant joined the service of the Lagos State Government in 1973 from the service of the Federal Government. In 1980, he was seconded to the Lagos State Schools Management Board, the 2nd respondent in this case. Appellant was appointed Secretary of the Purchasing, Supplies and Maintenance Committee of the Tenders Board of the 2nd Respondent Board. Appellant observed certain irregularities in the award of contracts in the discharge of his duties in covering the proceedings of the said committee. He made observations about the irregularities to the Executive Secretary of the Lagos State Schools Management Board. When no action was taken, he petitioned the Governor of the State. Still not receiving any positive reaction, he sent a petition to the Code of Conduct Bureau. He only received an acknowledgement from the last mentioned. He seized the opportunity to raise the matter again when the Governor visited the offices of the Schools Management Board. He reminded the Governor of his petition in the presence of the Executive Secretary of the Board. It was at this stage that the Executive Secretary, in reply to a question by the Governor explained that the matter had been investigated and found to be false. The following day a query was issued to appellant.

 

Appellant was in December, 1980 deployed to Muslim College, Egbe as Principal of the School. Appellant denied receiving the letter of deployment. He said that he was on leave on December 17, when it was claimed the letter was served on him. There was conflicting evidence whether the letter was given to him by hand, or was sent to him through the Registry. The learned trial judge found as a fact that appellant received the letter. Appellant did not report at Muslim College, Egbe Second respondent had received a series of adverse reports on the conduct of appellant in his relationship with members of the Purchasing, Supply and Maintenance Committee of the Tenders Board of which he was the secretary. From December, 1980 when appellant said he was on leave he ceased to report for duty.

 

On 11th September, 1981, the Executive Secretary apprehensive that appellant might be mentally disturbed, referred hid case to the Ministry of Health. The Executive Secretary of the 2nd respondent wrote to appellant to appear before the Medical Board. Appellant failed to do so. In February, 1982, the 2nd respondent stopped payment of Appellant’s salary. Appellant consulted his solicitors to write to 2nd respondent about the suspension of the payment of his salary and asked for its restoration. On 22nd August, 1983, in a letter SMB/CON/PF/206/81 tendered as “Exhibit 00” the 2nd respondent issued a query to the appellant. The text of the query which appellant did not answer is very pertinent to the defence of the respondents and the determination of this appeal. I reproduce the relevant portions of the query for ease of reference:-

 

“DOCUMENTARY ON SERIOUS LAPSES AND QUERY

 

I am directed to produce a documentary on several areas of lapses and general inefficiency spanning a period of about two and half 2j years and to request your full explanation on same as follows:-

 

(i)      MISCONDUCT: Apart from various acts of misconduct unbecoming of an officer of your status manifested in previous incidences of negative aggressiveness; violence, use of profane language, frequent quarreling with colleagues and subordinate staff (the totality of which is tantamount to MISCONDUCT under the Civil Service Rule No. 04502), a characteristic that you exhibited to the embarrassment of officials and members of this Board even on the occasion of the visit of His Excellency, the Governor of Lagos State, to this office in 1980, you were also, at least on one occasion, a wanted person by the Police on a charge of assault and forcible ejection of tenants at your Agege house. Thirdly, it is hereby noted that your confrontational attitude and propensity for violence led to your premature eviction from a ‘Technical Assistance” Course in Britain for which you had been nominated by the Ministry of Education.

 

(ii)     ABSENCE FROM DUTY WITHOUT LEAVE. Since you received the aforementioned letter of deployment (Ref. Sub-paragraph 1 (ii) above) you had from December, 1980 to date continually failed to report for duty or assignment, without leave or cause, in spite of your awareness that such is a most serious offence Punishable by dismissal under CSR No. 04502 and paragraph 26 of the Standard condition of Service for Lagos State parastatals. This incidence of your failure to report for duty led to the stoppage of your salary since February, 1982.

 

(iv)    REFUSAL OF POSTING: When, as a means of providing for you a new environment for rehabilitation, you were redeployed as Principal, Muslim College, Egbe vide our letter LED/SMB/PS/2/T/103 of 17/12/80, you refused the posting without any reason or cause and has not to date, even shown up at your new post which is an act of misconduct under Civil Service Rule No. 04502 (vii).

 

REFUSAL TO APPEAR BEFORE THE MEDICAL BOARD: When in view of the queer behaviour you exhibited on several occasions this Board, rather than invoke the maximum penalty appropriate for the nature of your offence mentioned under sub-paragraphs (i) and (ii) above, arranged for you to appear before the Medical Board (a decision that was conveyed to you through our letter Ref. No. CS/495/Vol. 111/49 of 22/9/81) you have since failed to honour the invitation of the Ministry of Health meant for that purpose despite the fact that the letter was delivered to your official quarter at Amuwo-Odofin.

 

2. You are, therefore, to make within one week (by a representation in respect of all the charges contained under sub-paragraphs 1 (ff)-(lv) above as to why you should not be DISMISSED on account of any or all of the charges.

 

3. Please note that failure to submit your representation by the stated time would be deemed to be a plea of “GUILTY’ and the law would take its due course without any further formalities.”

 

Paragraphs 2 and 3 are very important and crucial to the determination of this appeal. On the 14th October, 1983, appellant issued a writ of summons claiming from the respondents the following reliefs:-

 

1. (i) A declaration that the First Defendant had unjustifiably repudiated the contract of service entered into with the plaintiff in or about 1973 by wrongfully refusing to pay the plaintiff his salaries, allowances and other entitlements since 1st February, 1982, to date.

 

(i)      The sum of 4500,000.00 being damages for wrongful dismissal.

 

(ii)     In the alternative to 1() and (i) above,

 

(a)     a declaration that the contract of service between the plaintiff and the 1st defendant entered into in or about 1973 still subsists.

 

(b)     an order for payment of arrears of salary and all other entitlements due from 1st defendant to the plaintiff from 1st February, 1982 until the date of judgment.

 

(iv)    the sum of 425,000.00 being general and aggravated damages suffered by the plaintiff as a result of the 1st defendant’s deliberate and malicious stoppage of the plaintiffs salary as aforesaid.

 

2. The plaintiff’s claim against the 2nd defendant is for

 

(i)      the sum of 425,000.00 being damages for wrongfully and maliciously inducing the 1st defendant to breach its obligations under the contract of employment between the plaintiff and the 1st defendant.

 

(ii)     the sum of N50,000.00 being damages for libel contained in a letter ref. No. SMB/CON/PF/206/35 dated 11th June, 1982 written by the 2nd defendant to Mr. O.J. Idigbe, of Chief Rotimi Williams’ Chambers, the plaintiff’s former Solicitors.

 

3. The plaintiff claims the sum of N100,000.00 jointly and severally from the defendants being exemplary damages for oppressive, arbitrary and un-constitutional acts against the plaintiff by the defendants, their servants or agents:’

 

The action was tried on pleadings. Oral evidence was led Plaintiff gave evidence and called a witness. The defendant called three witnesses. On the 31st May, 1985, the learned trial judge, Hotonu, J., granted 45,000.00 on the claim for damages for libel which was not defended by the defendants. He dismissed the declarations sought, both in the main and in the alternative. After reviewing the evidence in support of the claims for victimisation, the learned trial judge held that the claims on victimisation was not such that can sustain any of the claims for damages in the case.

 

On the claim for damages in respect of stoppage of his salary, the learned trial judge said:-

 

“Considering evidence led by the parties I have found and hold that on 17th December, 1980, the plaintiff received a letter attached to exhibit FF, posting him to the Muslim College, Egbe as principal, he failed to turn up for duty and, as a result his salary was stopped in February, 1982.”

 

With respect to claims 1 (i), (ii), (iii), 2(1) and (3), the. learned trial judge held that the contractual relationship between the parties was governed by the Civil Service Rules, and the standard conditions of service for Lagos State parastatals. The learned trial judge construed the provisions of sections 19 and 21 of the standard conditions of service and Rule 04502 of the Civil Service Rules and Regulation 51 of the Lagos State Civil Service Commission Regulations and hold that the provisions are not unconstitutional.

 

He held that plaintiff repudiated his contract with the defendants when he refused to report for duty as principal at the Muslim College, Egbe in December, 1980. The repudiation was accepted by the defendants when his salary was stopped in February, 1982.

 

The learned trial judge having found in favour of the dismissal held that the question of reinstatement did not arise. Plaintiff was dissatisfied with the judgment and appealed to the Court of Appeal.

 

The Court of Appeal dismissed the appeal and affirmed the judgment of Hotonu, J.

 

Appellant formulated three issues for determination from the eight grounds of appeal filed. The Court of Appeal adopted the issues for the purpose of the appeal. They are as follows:-

 

(a)     Whether on the evidence, the defendants (respondents) proved that the plaintiff (appellant) was informed on 17th December, 1980 that he had been transferred to Muslim College, Egbe as Principal

 

(b)     if the answer to the above question is in the affirmative, was the learned trial judge right in holding that the plaintiff was automatically dismissed from the services of the first defendant by virtue of:-

 

(i)      sections 19 & 21 of the standard conditions of service of Lagos State Parastatals (Exhibit BB)

 

(ii)     Rule 04502 of the Lagos state Civil Service Rules 1981 (exhibit AA),

(ii)     Regulation 51 of the Lagos State Civil Service Commission Regulations 1980

 

(c)     whether the judgment of the learned trial judge was not in gross disregard of the evidence led at the trial.”

 

The Court of Appeal answering the first issue, accepted the finding of fact of the learned trial judge, and answered the question in the affirmative.

 

On the second issue, the Court of Appeal agreed with the view of the learned trial judge that appellant had repudiated his contract with the respondents by his irregular conduct. Respondents had accepted the repudiation. Construing the provisions of Regulation 19, 21 and Rule 04502, of the Civil Service Rules, the Court of Appeal held that the Legislature has under these Rules invested in the Commission the discretion either to apply the audi alteram partem rule of the principles of natural justice prior to the taking of the decision, or in appropriate case to take decision on the complaint before it without first giving the officer concerned a hearing. The provision for a hearing subsequently takes adequate care of the audi alteram partem requirement of section 33 of the Constitution 1979.

 

The provisions of Rule 04502 of the Civil Service Rules are not in violation of section 33 of the 1979 Constitution. They are therefore not null and void. The Court of Appeal, therefore held that appellant was rightly dismissed.

 

It seems to me that the Court of Appeal assumed that the respondents exercised their powers under the said provisions to dismiss the appellant. Hence it relied on Sule v. Nigerian Cotton Board (1985) N.W L.R. (part 5) 17.

 

The Court of Appeal accordingly, and consistent with the above view, held that it was idle and untenable to suggest that respondents were estopped from denying that appellant was still in the service of the 1st respondent. The Court of Appeal also answered the second issue in the affirmative. Finally, on the third issue, the Court of Appeal held that the findings of the learned trial judge were amply supported by the evidence and the findings are not perverse.

 

Appellant was still dissatisfied with the judgment and has appealed to this court. Originally, seven grounds of appeal numbered (a)-(g) were filed. Leave was granted only in respect of (a) (b) (c) and (e) Grounds (d) and (f) relating to certain findings of fact were struck out.

 

The grounds of appeal are as follows-

 

“(a)    The learned justices of the Court of Appeal erred and misdirected them-selves in law and on the facts when they held that under rule 04502 of the Lagos State Civil Service Rules and Regulation 51 of the Lagos State Civil Service Commission Regulations, 1980 the appellant was automatically dismissed from the service of the 1st respondent.

 

PARTICULARS OF ERROR AND MISDIRECTION

 

(i)      the provisions of Rule 04502 and Regulation 51 aforesaid in so far as they provide for automatic dismissal without hearing are in violation of the appellant’s right to fair hearing under section 33 of the Constitution of Federal Republic of Nigeria, 1979 and are therefore unconstitutional, null, void and of no effect.

 

(ii)     the provisions of the said Rule 04502 and Regulation 51 are self-contradictory in that they provide for automatic dismissal on one hand and on the other hand gave the discretion whether to dismiss or not.

 

(iii)    it was not the case of the respondents on their pleadings or in their evidence in court that the appellant had at any time been dismissed from the service of the first respondent.

 

(iv)    the fact of the case of Falomo v. Lagos State Public Service Commission which the learned justices of the Court of Appeal relied on can be distinguished from the facts of the present case and in any case has been impliedly overruled by section 35 (sic) of the 1979 Constitution.

 

(b)     The learned justices of the Court of Appeal erred in law in failing to hold that even if the interpretation of automatic dismissal given to Rule 04502 of the State Civil Service Rules and Regulation 51 of the Lagos State Civil Service Regulation 51 of the Lagos State Civil Service Commission Regulations is correct, the respondents have waived their rights under these rules.

 

PARTICULARS OF ERROR

 

(i)      in the letter the respondents wrote to the appellant’s solicitors, they asserted that the appellant was still in their service.

 

(ii)     in their pleadings, the respondents only pleaded that the appellant was liable to summary dismissal but never said that he had been dismissed.

 

(iii)    even as late as August, 1983, the, respondents sent a query to the appellant asking him to show cause why he should not be dismissed.

 

(iv)    during the trial, the respondents gave evidence to the effect that the appellant was still in their employment.

 

(c)     The learned justices of the Court of Appeal erred in law and on the facts when they refused to hold that the learned trial judge misdirected himself in law and on the facts when he held as follows:-

 

“Even if the allegations were true, all the plaintiff was expected to do was to report to his immediate senior officer, the Executive Secretary of the Board. This he did orally and in writing and having done so, he was expected to have been satisfied that he has done his duty not only as good citizen but also as a honest, vigilant and loyal civil servant. But by going further to write petitions to the Governor and the Code of Conduct Bureau on the same matter, it would appear that he has displayed extra-ordinary zeal to his own detriment….. He said that as a result, he became demoralized and suffered mental anguish, injury and depression. This is not a desirable situation. But looking at the evidence before me, it seems the plaintiff himself has created the unpleasant situation in which he found himself.”

 

PARTICULARS OF MISDIRECTION

 

(i)      the appellant, as a senior and honest civil servant, was under a legal duty to expose a fraud within his department and it was in pursuance of that duty that he wrote the petitions to the Governor and the Code of Conduct Bureau.

(ii)     the appellant is entitled to protection under section 35 and 36 of the constitution of the Federal Republic of Nigeria, 1979 from victimization for his moral convictions.

 

The learned justices of the Court of Appeal erred in law and on the facts in upholding the judgment of the learned trial judge which placed undue weight on the evidence of D.W. 1, Mr. S. B. Salem and thereby came to wrong findings of facts.

 

PARTICULARS OF MISDIRECTION

 

(i)      the Justices of the Appeal Court failed to note that Mr. Salem, being the Executive Secretary of the 2nd respondent at the relevant time, was implicated in the allegations of fraud raised by the appellant, and as such, there was a real likelihood of bias against the appellant.

 

(ii)     the justices failed to note the self contradictions in the evidence of Mr. Salem.

 

(e)     The learned justices of the Court of Appeal erred in law and on facts when they rejected the appellant’s contention that the learned trial judge was wrong to have permitted the respondents to amend their pleadings after the close of the appellant’s case.

 

PARTICULARS OF ERROR

 

(i)      the amendment was granted in respect of facts that were material to the case and were available before the trial begun and which therefore, ought to have been pleaded.

 

(ii)     the appellant in his evidence at the trial court was not cross-examined on those facts relating to the amendment which the respondent knew or ought to have known were essential to their case.

 

(iii)    amendment was granted at a late stage of trial i.e. after the plaintiff had closed his case”

 

The learned justices of the Court of Appeal erred in law and on facts in upholding the finding of the learned trial judge that the appellant was in the offices of the second respondent on 17/12/80, and that he received a letter of redeployment to Muslim College, Egbe on that day.

PARTICULARS OF ERROR AND MISDIRECTION

 

(i)      the justices failed to properly consider the manner in which the issue of the appellant’s visit to the office of the second respondent on 17/12/80 was raised at a late stage of the proceedings and after the appellant had closed his case.

 

(ii)     the justices failed to properly consider the contradictions in the evidence of the defence witnesses on the issue of the appellant’s whereabouts on 17/12/80.

 

(iii)    the justices ignored overwhelming evidence in support of the fact that the appellant was on leave at the material time.

 

(iv)    the Court of Appeal failed to reject the inadmissible evidence of D.W. 2 that the Governor verbally directed that senior officers should not go on leave in December, 1980.

 

(g)     The judgments of both the Court of Appeal and the trial court are against the weight of the evidence.

 

Learned counsel filed and served their briefs of argument. Both counsel adopted their briefs of argument which they relied upon in their argument before us.

 

Counsel to the appellant formulated six issues from the four grounds of appeal. Counsel to the respondents adopted issues (a)(b)(c)(e) and (f) and rejects (d). I think the ground on which (d) is rejected, namely, that the issue did not arise from the court below is right perfectly valid – See Bamgboye v. Olanrewaju (1991) 4 N.W.L.R.(part 184) 132.

 

Moreover, the Issue formulated is not related to and does not arise from any of the grounds of appeal before us. It cannot therefore be an issue for determination before us See Aja v Okoro (1991) 7 N.W.L.R (part 203) 260.

 

Learned counsel to the appellant abandoned the notice in his brief of argument that the appellant intended to apply for leave to argue two additional grounds of appeal at the hearing of this appeal.

 

The issues for determination in this appeal are as follows:-

“(a)    Whether Rule 04502 of the Lagos State Civil Service Rules and Regulation 51 of the Lagos State Civil Service Commission Regulations, in so far as they provide for the dismissal of an officer without prior hearing; are in violation of the appellant’s constitutional right to a fair hearing and are therefore to that extent null and void?

 

(b)     Whether on the pleadings and the evidence before the trial court, the said Rule 04502 and Regulation 51 were applicable to the appellant’s case?

 

(c)     Whether on the pleadings and the evidence before the trial court, the respondents had waived their right to dismiss the appellant under Rule 04502 and Regulation 51?

 

Whether the appellant was entitled to protection from the court in so far as the events which led to his purported dismissal arose from his crusade to expose fraud within his department?

 

(e)     Whether the trial court was right to have permitted the respondents to amend their pleadings after the close of the appellant’s case?

 

(f)      Whether the case of Falomo v. Lagos State Public Service Commission was correctly decided and if not, whether it should be expressly over-ruled by the Supreme Court?”

 

The issues for determination in this appeal involve an important constitutional issue of considerable the administrative importance. It concerns the exercise of discipline in accordance with the laws regulating discipline in the civil service.

 

Mr. Oyewole, learned counsel to the appellant submitted very forcefully that the provisions of Rule 04502 of the Lagos State Civil Service Rules and Regulation 51 of the Lagos State Civil Service Commission Regulation were in conflict with section 33 subsections (1) and (2) of the Constitution 1979, and are accordingly, null and void. It was submitted that the provisions are void also for uncertainty. Learned counsel pointed out the differences between the old Regulation 52 now 51 (1) construed in Falomo’s case, and the provision now in issue which is regulation 51(2). The new Regulation 51 omitted the proviso to the Old Regulation 52. the proviso is now in Rule 04502. In Falomo’s case, the constitutionality of the Regulation was not in issue. The appellant, Falomo, was expressly dismissed by the respondent Appellant in this case has not been dismissed. Finally, Falomo’s case was decided on the provisions of section 22(1) of the 1963 Constitution, significantly different from section 33(1) and (2) of the 1979 Constitution.

 

Learned counsel urged us to read section 33(1) and (2) and give the provisions a liberal interpretation in accordance with Rabiu v. The State (1980) 12 N.S.C.C. 300-1; L.P.D.C. v. Fawehinmi (1985) 2 N.WL.R. (part 7) 300, and to hold that the purport of Regulation 51 and Rule 04502 was to take away the rights of the appellant without giving him a hearing and accordingly a violation of section 33(1).

 

It was also submitted that the proviso enabling representation to be made is omitted in Regulation 51. It was argued that the proviso merely enables representation to be made after dismissal, but not before, as required by section 33(2). It was submitted that the provisions for automatic dismissal without an hearing is more obnoxious.

 

The provisions of automatic dismissal renders it void for uncertainty because the officer shall be treated as having been dismissed from the date of the commission of the offending acts. The question is who determines that the offending acts have been committed? It was argued that if it is the disciplinary authority, the issue arises whether the officer has been afforded the opportunity to make a representation before a decision is taken.

 

In the premises of the above submission it was argued that Regulation 51(2) and Rule 04502 are in clear violation of section 33(1) and (2) of the Constitution 1979 and are accordingly null and void.

 

Learned counsel to the respondent in reply submitted that the rules and regulations challenged empower the respondents to exercise its discretion in dismissing public officers who are absent from duty without leave or reasonable cause without prior exercise of any disciplinary proceedings under the aforementioned Rule and Regulations. It was submitted that this court in Falomo v. Lagos State Public Service Commission (1977) 2 N.S.C.C. 230 has decided that a public officer who absents himself from duty without leave or reasonable cause was on that ground validly dismissed. Learned counsel submitted the Regulation 51 and Rule 04502 provide for hearing of the dismissed Officer on the reasons for his absence without leave or reasonable cause. This is in compliance with section 33(2) of the Constitution 1979. The dismissal under the provision was therefore not regarded as final.

 

In the instant case, learned counsel submitted that every opportunity was given to appellant to make representations in explanation of his absence without leave. He failed to take advantage of the opportunity. We were urged to follow our earlier decision in Falomo v. Lagos State Public Service Commission (supra):

 

The validity vel non of the provisions of Regulation 51 and Rule 04502, on the grounds of conflict with the provisions of section 33(1) and (2) of the Constitution 1979 is the issue here. I ask myself whether there is any conflict?

 

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. It is pertinent and for ease of reference to reproduce in full all the provisions relevant to the determination of the question. These are section 33(1) and (2) of the Constitution 1979, Regulation 51 and Rule 04502.

 

“33-(1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.

 

(2)     Without prejudice to the foregoing provisions of this section, a law shall not be invalidated by reason only that i[ confers on any government or authority power to determine questions arising in the administration of a law that affects or may affect the civil rights and obligations of any person if such law

 

(a)     provides for an opportunity for the person whose rights and obligations may be affected to make representations to the administering authority before that authority makes the decision affecting that person;

 

(b)     contains no provision making the determination of the administering authority final and conclusive.”

 

The question can be more easily understood and any conflict resolved by a comparative analysis of the relevant provisions. I shall begin with section 33(1) and (2) of the Constitution 1979.

Section 33 is an entrenchment in the Constitution of the common law principle of the right of fair hearing which is an inherent and necessary element in the determination of every dispute. The provisions of sub-section (1) of the section ensures that the rights and obligations of every citizen is finally and conclusively determined, after hearing the person whose rights and obligations are involved and would be affected by the decision. It is therefore a fundamental and constitutional right of the person whose rights and obligations would be affected by any determination to be heard before such rights and obligation is conclusively determined. See Osho v. Foreign Finance Corporation (1991) 4 N.W.L.R (part 184) 157, Baba v. NCATC (1991) 5. Hence, the person whose rights and obligations are in issue must be given an opportunity to be heard in defence of such right by the Court or tribunal established for the purpose.

 

Subsection (2) deals with the question of the validity of such enabling laws. Under this sub-section which is without prejudice to the provisions of sub-section (1) of the section, any law that affects or may affect the civil rights and obligations of any person is valid if (a) it provides an opportunity for the person affected to make representation to the person taking the decision before the decision is taken, – See LSDPC v. Foreign Finance Corporation (1987) 1 N. W. L. R (part 50) 413 or (b) the decision made without hearing is not final and conclusive. The two conditions are independent of each other and are in the alternative. The phrase ‘without prejudice to the foregoing provisions of this section” clearly refers to sub-section 1 of the section.

 

Hence a law which makes provision as in sub-section (2) shall not be invalidated, because of sub-section (1). Such law is therefore not invalid. Regulation 51 of the Lagos State Civil Service Commission Regulation 1980 and Rule 04502 of the Lagos State Civil Service Rules are not in conflict with section 33 of the Constitution 1979.

 

Regulation 51 of the Lagos State Civil Service Rules provides as follows:-

 

Without prejudice to the power to institute disciplinary proceedings in respect of any absence from duty without leave or reasonable cause, where a civil servant is absent from duty without leave or reasonable cause, the disciplinary authority may dismiss him without following the procedure prescribed in Regulation 57 or 58.

 

(2)     A Civil servant 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:

(a)     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.”

 

Regulation 51 is in pari materia with Regulation 52 construed in Falomo v. Lagos State Public Service Commission (supra). In Falomo’s case this court decided that Regulation 52 did not infringe the rules of natural justice. The facts are not identical. In Falomo’s case appellant was actually dismissed. The Disciplinary Authority exercised its powers under the Regulation. The respondent, the Disciplinary Authority in the instant case has not in fact exercised the power under the Regulation. Falomo’s case does not govern this case on the facts even though the issue of fair hearing was considered in both cases. In strict legal theory the dismissal of appellant not being in issue the question of fair hearing did not arise. I do not therefore find any ground on which to reconsider and overrule Falomo’s case, Federal Civil Service Commission v. Laoye (1989) 2 N.WL:R. 652. The correctness of Falomo’s case is not in my opinion necessary for consideration in the instant case: In any event appellant having distinguished Falomo’s case from the case before us, it seems to me not open to counsel to urge the overruling of the decision. -See Asanya v. The State (1991)3 N.W.L.R. (part 180)422.

 

Rules 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 04508 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 aforementioned 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 to 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 O4502 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. It is true that section 33(2) (b) is wider in scope than section 22(1) of the 1963 Constitution. I do not think there is any difference in essence. The fundamental requirement in both provisions is the protection of the principle of fair hearing.

 

As I have already said in this judgment, Regulation 51, and Rule 04502 are therefore not in violation of section 33(1) or (2) of the Constitution of the Federal Republic of Nigeria 1979. They are therefore valid. Regulation 51 and Rule 04502 have provided for fair hearing before the dismissal of an officer since the earlier decision before the hearing was not regarded as final and conclusive.

There is a lot of common sense in the enabling provision. It is an 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 E.R. 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 determination of dismissal cannot be satisfied without a hearing.

 

I shall therefore answer the first question in the negative. The Rule 04502 of the Lagos State Civil Service Rules and Regulation 51 of the Lagos State Civil Service Commission Regulations are not in violation of the appellant’s right to fair hearing in respect of provision for dismissal and are not null and void.

 

The second issue is whether on the pleadings and the evidence before the trial court, the said Rule 04502 and Regulation 51 were applicable?

 

Mr. Oyewole, learned counsel to the appellant submitted in his brief of argument that the Rules are not applicable. His contention was that the case put forward by the respondent was that the appellant was only liable to be dismissed, but had not been dismissed. In the alternative the respondent chose to stop his salary. It was submitted that the claim by respondents, that appellant was on the rules automatically dismissed, was not part of the case of the respondent. It was not pleaded. It was only raised during the address of learned counsel to the respondents when he submitted that stoppage of the plaintiff’s salary was a step short of dismissal, and to enable appellant to explain his absence from duty without leave. It was also submitted in the court below that first defendant was in a position to dismiss appellant under and by virtue of Regulation 51.

 

Mr. Oyewole submitted in conclusion that parties are bound by their pleadings and that the finding by the trial judge that appellant had been dismissed was not supported by the pleadings and was accordingly perverse. He cited and relied on NIPC v. Thompson Organisation (1969) N.M.L.R. 99; Adimora v. Ajufo (1988) 19 N.S.C.C. 1005.

 

Learned counsel to the respondent conceded in his brief of argument that in the pleadings, the case of the respondents was that appellant was liable to be dismissed for absenting himself from duty without leave or reasonable cause. It was submitted however that reading paragraphs 14 and 19 of the amended statement of defence together, respondents had met the requirement of pleading material facts and not the legal consequences of the law flowing from the facts. It was submitted that by absenting himself from duty without leave or reasonable cause, appellant had subjected himself to the provision of Rule 04502 and Regulation 51 respectively.

 

Counsel submitted that there is no procedure for stopping an officer’s salary pending his dismissal. It was argued that the stoppage of being regarded as dismissed under Rule 04502 and Regulation 51.

 

The determination of this appeal rests entirely on the correct resolution of this question. Having decided that the provisions of Regulation 51 and Rule 04502 are not in violation of section 33 of the Constitution 1979, it necessarily follows that the dismissal of the appellant will depend upon whether the provisions are applicable to the facts of the case or not.

 

It is not in dispute that appellant is an employee of the 1st respondent by virtue of a contract of employment. The 2nd respondent is an institution of the 1st respondent and acts for and on behalf of the 1st respondent. By virtue of Regulation 51 and Rule 04502 respondents are empowered and legally equipped to deal with officers who have absented themselves from duty without leave or without reasonable cause.

 

I have already set out the text of these laws in this judgment. It is common ground to both counsel that the Rules are applicable where an officer absents himself from duty without leave or without reasonable cause. -See Falomo v. Lagos State Public Service Commission (supra). The question is whether on the facts of this case as pleaded, the rules are applicable. I do not hesitate in my conclusion that they are not applicable.

 

Learned counsel to the respondent has submitted that notwithstanding absence in respondent’s pleadings that appellant was dismissed, and the submission of learned counsel in the trial court that appellant was under the Rule merely liable to be dismissed, this court should regard his pleadings as tantamount to holding that the fact that appellant was dismissed was pleaded.

 

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. Ikewuibe (1991) 3 N.W.L.R. (part 180) 385. Respondents did not plead that appellant was dismissed from the service of the 1st respondent. This court cannot by inference on the fact so hold. The finding by the learned trial judge is tantamount to making a new case for the respondent which the respondent did not himself make. In the instant case, it is inconsistent with the evidence before him. By this action the trial judge has abandoned his role of an unbiased umpire between the parties and constituted himself a party to the litigation. See Fallon v. Calvert (1960) 1 All E.R.281. Our adversary procedure and judicial oath not lightly frown at such conduct, but unequivocally and decisively rejects in its entirety every proceeding so tainted.

 

Let us now examine the pleadings relied upon by learned counsel to the respondent as suggesting that the dismissal of the appellant was pleaded.

 

Paragraphs 14 and 19 of the amended statement of defence read:-

 

“14.   Further to paragraph 13 of this statement of defence the 1st and 2nd defendants aver that the plaintiff failed to assume his new duty post neither did he report for duty regularly at the office of the 2nd defendant. The 1st and 2nd defendants will contend that by his action the plaintiff was liable to summary dismissal under the Civil Service Rules and Standard Conditions of Service for Lagos State Parastatals. The 1st and 2nd defendants will at the trial of this suit rely on the Civil Service Rules and Standard Conditions of Service for Lagos State Parastatals.”

 

19. The 1st and 2nd defendants admit paragraph 21 of the statement of claim only to the extent that the Plaintiff’s salary was stopped with effect from 1st February, 1982 but aver that this was due to the plaintiff’s non acceptance of redeployment and non-attendance at work.”

 

It is difficult to read these averments as suggesting that appellant was dismissed from the service on account of his absence from duty without leave. It is true paragraph 14 averred reliance on the enabling provisions of the law Paragraph 18 averred as follows:-

 

The 1st and 2nd defendants aver that plaintiff having failed to report at his duty, post at Muslim college, Egbe, nor to the Secretary, Mushin School Management Committee, put up sporadic appearances at the offices of the 2nd defendant during which he incessantly quarreled with both his senior and junior colleagues.” The nearest reference to dismissal was the averment in paragraph 14 that “plaintiff was liable to dismissal under the Service Rules and Conditions of Service for Lagos date Parastatals.”

 

The evidence in Chief of D.W 1, Babatunde Selem in support of the respondents case at the trial, was not that appellant was dismissed. His evidence during cross-examination was that the plaintiff was not interdicted.” He continued, “It is not the practice in the civil service to stop the salary of an officer to make him comply with instruction.”

 

It is important also to refer to the query Exhibit “00” issued to the defendant, which states in conclusion:-

 

“You are therefore, to make within one week (by a representation in respect of all the charges contained under sub-paragraphs 1 (ii)-(iv) above as to why you should not be dismissed on account of any or all of the charges”

 

This is unequivocal that appellant was not being dismissed before he had either answered the query unsatisfactorily or failed to answer, at least not before the expiration of one week. The charges are in respect of (i) Misconduct (ii) Refusal of Posting (ii) Absence of duty without leave (‘nr) Refusal to appear before the Medical Board.

 

This letter dated 22nd August, 1983 was the last correspondence to appellant before the issue of the writ in this action. It is no where therein indicated that appellant has been dismissed by respondent in exercise of powers under the enabling rules.

 

It is clear on the facts of the case and from Exhibit “00” that respondent did not regard appellant as having been dismissed. As Exhibit “00” has clearly stated, appellant was required to make his representation to the query within one week. It follows therefore that respondents had not taken a final and conclusive or any decision for that matter on the dismissal of the appellant.

 

I have no doubt that respondents have not till the time this action was instituted, dismissed appellant from the service in accordance with the provisions under Rule 04502 or Regulation 51. The respondents have not complied with the Rules. They have exercised the option to have his explanation. They are therefore required to hear him. Respondents could have dismissed appellant summarily, with an opportunity for him to make representation thereafter. Having chosen the former option they are bound by their option.

 

The trial judge was wrong to hold that there was a valid dismissal of the appellant. There was neither an averment nor evidence in support of such a finding. The finding accordingly is perverse. The Court of Appeal was wrong to have accepted and relied on the finding. 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. (part 78) 563.

 

The provision of Rule 04502 and Regulation 51 are therefore not applicable to this case.

 

The third issue concerns the waiver of the right to dismiss the plaintiff/appellant. I have in my considering of the second issue points out that the respondent, which is the Disciplinary Authority within Rule 04502 and Regulation 51 had a choice either to a summary dismissal or to proceed by way of the procedure prescribed in Regulations 54 or Rule 04508. When respondent issued the Query, Exhibit “00” dated 22/4/82, it was adopting the procedure under Regulation 54 or Rule 04508. This procedure is by way of requiring the explanation of the officer before a decision could be taken on the nature of the allegations. A careful reading of the Regulation and Rule discloses that the procedure by way of summary dismissal is prescribed only for those who have been absent from duty without leave or without reasonable cause. It does not include other kinds of misconduct.

 

The letter Exhibit “00” which contains the Query, requiring plaintiff/appellant to answer within one week contains other allegations. Since respondent had decided to proceed by way of Rule 04508 which does not entitled it to dismiss appellant summarily, respondent must be taken to have waived its rights to dismiss the plaintiff summarily without a hearing. The learned trial judge notwithstanding the evidence before him found that plaintiff/appellant was automatically dismissed from the service under Regulation 51 and Rule 04502. The Court of Appeal agreed with this view.

 

This finding was clearly at variance with the pleading of the respondent, where in paragraph 14 it was averred that “plaintiff was liable to summary dismissal under the Civil Service Rules and the standard conditions of Service for Lagos State Parastatals.” In his evidence at trial D.W 1 stated categorically that ‘The plaintiff’s employment was not terminated.” The respondent cannot on the above evidence, be saying that it has automatically dismissed plaintiff.

 

The learned trial judge and the court below were probably misled by the opening sentence of Regulation 51(2) and Rule 04502(b), which provided that an affected officer shall be considered and treated as having been dismissed from the State Civil Service from the date of the commission of the act or making the omission. I have already construed this provision in this judgment. But the question here is the waiver of the right because of the choice made by the Disciplinary Authority between alternative modes of proceeding against the appellant. Having made a choice, the respondent is estopped from considering and has waived the other alternative. In other words, it has waived its right to resort to a procedure which enables it to dismiss, the plaintiff/appellant summarily and without hearing.

 

1 agree entirely with Mr. Oyewole that respondents have waived their right to proceed by way of summary dismissal. I answer this question in the affirmative. The fifth issue is concerned with the validity of the amendment of the statement of defence by the defendants. It was the submission of Mr. Oyewole that the learned trial judge was wrong to have allowed the amendment after the close of the case of the plaintiff, and during the evidence of the second witness for the defendants. It was submitted that the amendment introduced for the first time, a new issue not already in the pleading of the defendant.

 

Mr. Oyewole has in his brief of argument, argued that the parties had not joined issues in the pleadings on the matter on which further amendment was sought and granted. Plaintiff was taken by surprise.

 

In answer to this submission, learned counsel to the respondent in his brief of argument referred to paragraph 13 of the statement of defence where respondent pleaded that appellant was by a letter dated 17/12/80 redeployed to Muslim College, Egbe. The purpose of the amendment sought was to plead the mode by which service of the said letter was effected. The amendment sought was to regularise what had already been pleaded.

 

It is relevant to trace the reason why learned counsel to the defendant sought the amendment to his statement of defence and to see whether the grant of the amendment was in line with the pleadings and the evidence already in court.

 

The amendment was as a result of the objection of Mr. Oyebolu, learned counsel to the plaintiff that D.W2 could not give evidence of how the letter dated 17/12/80 redeploying appellant to Muslim College, Egbe was served on the appellant. It was argued that the fact that appellant came to the witness with the letter dated 17/12/80, evidence of the fact could not be given. It is necessary to refer the averments in paragraph 28 of the statement of claim, and paragraph 13 of the statement of defence, to show that issue was joined in respect of the question whether the appellant received the letter dated 17/12/80.

 

Paragraph 28 of the statement of claim is as follows:-

 

“In the said 2nd defendant’s letter of 11th June, 1982, the 2nd defendant made several false allegations against the plaintiff. The plaintiff hereby denies each and every allegation contained in the said letter and will contend at the trial that the letters mentioned therein and dated 17/12/80 and 22/9/81 and purportedly sent to the plaintiff were never written and the plaintiff never received them.”

 

In answer to this pleading, the defendants pleaded in paragraph 13 of their statement of defence as follows:-

 

“13.   The 1st and 2nd defendants aver that by a letter Ref. No. LED/SMB/PS/2/T/108 dated 17th December, 1980 the plaintiff was redeployed as Principal of Muslim College, Egbe and was directed to report to the Secretary Mushin Schools Management Committee.”

 

Plaintiff/appellant having denied that the letter was written and that it was never received by him has joined issues on the fact whether the letter was written and whether he receive the letter or not. In such a situation evidence of the fact whether the letter was written and whether it was received or not could be led to clarify the issue in dispute. Such evidence will explain the pleadings of the parties and place before the court the real issues in controversy between the parties. The amendment of the pleading which did riot raise new issues was in accordance with the rules not necessary. The amendment to include paragraphs 13A, 1313, and 13C explaining the circumstances of the writing of the letter dated 17/12/80 and the receipt of the letter by appellant is proper and valid. The trial court was right to have permitted the amendment. It follows from the reasoning in this judgment and my conclusion that:-

 

(1)     Regulation 51 of the Lagos State Public SERVICE Commission Regulations, and Rule 04502 of the Lagos State Civil Service Commission Rules are not in conflict with section 33(1)(2) of the Constitution 1979.

 

(2)     Regulation 51 and Rule 04502, ordinarily applicable to public officers and the appellant is a public officer to who the Rules would have been applicable, the respondents have not exercised their powers under the law to dismiss the appellant. His appointment as a public officer in the service of the 1st respondent remains unaffected by the uncompleted exercise of the power to discipline him within the provisions of the law.

 

(3)     The amendment of paragraph 13 of the statement of defence was valid.

 

I now turn to the alternative claim, that the appellant’s appointment with the 1st respondent subsists. It seems to me an acceptable legal proposition that an uncompleted legal act cannot result in a legal consequence. It has not been denied and evidence of the respondent is unequivocal that at the time of the institution of this action, the disciplinary proceeding against appellant had only commenced. First, as on 22/8/83, this is at the date of the query, appellant was still in the service of the 1st respondent and had not been dismissed. Secondly, even at the trial, D.W. 1 in his evidence in-chief and on cross examination declared that appellant was still in the service of the 1st respondent He stated his guiding consideration for determining the tenure of appellant as follows:-

 

“If a civil servant is interdicted half his salary is paid. The plaintiff was not interdicted. It is not the practice in the civil service to stop the salary of an officer to make him comply with instructions…… The plaintiff’s employment was not terminated…. The non-payment of salary for two years is abnormal but we are dealing with an abnormal situation.”

 

There was therefore no evidence before the learned trial judge that plaintiff/appellant was dismissed from the service of the 1st respondent. The uncompleted effort at disciplinary proceedings against plaintiff/appellant cannot in my opinion support the conclusion that plaintiff/appellant was dismissed. In the circumstances appellant having never been dismissed is still in the service of the 1st respondent. Accordingly, claim 1 (iii) (a) and (b) succeeds in their entirety.

I hereby declare accordingly that the contract of service between the 1st respondent and plaintiff/appellant entered into on or about 1973 still subsists. I also hereby order payment to plaintiff/appellant of arrears of salary and all other entitlement due from the 1st respondent from 1st February, 1982 till the date of this judgment.

 

Plaintiff/appellant is entitled to the costs of this appeal which I assess at N1,000 in this court M250 in the Court below.

 

KAWU, J.S.C. I have had the advantage of reading, in draft, the lead judgment of my learned brother, Ogundare, J.S.C. which has just been delivered. I am in complete agreement with his reasoning and also with its conclusion that the plaintiff’s appeal with regard to his alternative claims 1(iii)(a) and (b) succeeds and those claims are allowed. However, plaintiff’s claims 1(i), 1(i), 1 (iv), 2(1) and 3 are dismissed for the reasons fully set up in the lead judgment of my learned brother, Ogundare, J.S.C. I also hold that the Contract of Service between the plaintiff and the 1st defendant entered into about 1973 still subsists as there is no evidence whatsoever that the plaintiff’s appointment has up till now been terminated. That being the case, the plaintiff is entitled to his salaries and other entitlements from February, 1982 to the date of this judgment. Costs assessed at N1,000.00 are awarded to the plaintiff.

 

NNAEMEKA-AGU, J.S.C. I have had a preview of the judgment just delivered by my learned brother, Ogundare, J.S.C., in this appeal. He has fully set out the facts and the issues for determination and I do not intend to repeat them. 1 shall only mention such of them as may make the short contribution I wish to make meaningful.

 

The first issue I wish to comment upon is the validity or otherwise of Regulation 51 of the Lagos State Civil Service Commission Regulations, 1980 and Rule 04502 of the Lagos State Civil Service Rules, 1980 in view of the provisions of section 33 of the Constitution of the Federation, 1979. Learned counsel on behalf of the appellant’s contention is that the Regulation and the Rule are null and void on the ground that they are inconsistent with the provisions of section 33 of the Constitution. It is his submission that whereas section 33 guarantees fair hearing to every person before the determination of his civil rights and obligations the said Regulation and Rule purport to sanction the dismissal of a civil servant without any hearing at all, much less a fair one. He submitted further that the case of Falomo v. Lagos State Public Service Commission (1977) 11 N.S.C.C. 230 is distinguishable in that the provisions of section 33 of the 1979 Constitution are different from those of section 22(1) of the 1983 Constitution under which Falomo’s case was decided.

 

Learned counsel for the respondent on the other had submitted that the two constitutional provisions are similar and that Falomo’s case is in point.

 

Now Regulation 51 provides as follows:-

 

“(1)   Without prejudice to the power to institute disciplinary proceedings in respect of any absence from duty without leave or reasonable cause, where a civil servant is absent from duty without leave or reasonable cause the disciplinary authority may dismiss him without following the procedure prescribed in Regulation 57 or 58.

 

(2)     A Civil servant 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:

 

(a)     Absenting himself from duty without leave or reasonable cause, and in circumstance evincing an intention on his part no longer to continue in the State Civil Service.”

 

Rule 04502 provides as follows:-.

 

(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 omission aforementioned 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 of a lesser punishment than dismissal being imposed revoke the dismissal.”

 

Section 33(1) and (2) of the 1979 Constitution runs thus:

 

In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.

 

(2)     Without prejudice to the foregoing provisions of this section, a law shall not be invalidated by reason only that it confers on any government or authority power to determine questions arising in the administration of a law that affects or may affect the civil rights and obligations of any person if such law:-

 

(a)     provides for an opportunity for the person whose rights and obligations may be affected to make representations to the administering authority before that authority makes the decision affecting that person; and

 

(b)     contains no provision making the determination of the administering authority final and conclusive.”

 

I must pause here to note one fundamental misapprehension. Section 33(1) of the 1979 from its very words deals with determination of the civil rights and obligations for a person by its provisions by a court 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 nature justice and of fairness in their numerous decisions which affect the rights and obligations of citizens, including employees of governments. But they are not courts: Baba v. N.CA.TC. (1991) 5 N.W.L.R. 388. The courts in exercise of their power of judicial review are constantly called upon to scrutinise 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 partem or nemo judex in causa sua, 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 rights and obligations. Although it was technically erroneous for the appellant to have contented that the Regulation and the Rules are “unconstitutional,” I shall consider the merits of the submission.

 

It is true that this court in a long line of cases in exercise of its powers as the guardian of the Constitution has held that any enactment, federal or state, which is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, null and void. But the question is whether in fact Regulation 51 and Rule 04502 of the Lagos State Civil Service Regulations and Rules are inconsistent with the provisions of section 33 of the Constitution. A calm view of the Regulation and Rule shows that they enable the State Civil Service Commission to dismiss, or treat as having been dismissed, an officer without following the procedure for disciplinary proceedings which provide for prior hearing of the civil servant before he is dismissed where the civil servant is absent from duty without leave or reasonable excuse. But, if the officer can later satisfy the disciplinary authority that the circumstances of his absence do not justify a dismissal from the service, the authority, may review the dismissal and revoke the dismissal or impose a lesser punishment. It appears to me that the provision for a power to review the order makes it one that is not final or conclusive. In my opinion, it is such a situation that is contemplated by the saving in section 33(2) (b) of the Constitution which provides that:-

…..a law shall not be invalidated by reason only that it confers on any government or authority power to determine questions arising in the administration of a law that affects or may affect the civil rights and obligations of any person if such law:-

 

(b)     contains no provisions making the determination of the administering authority final and conclusive.”

 

If follows, therefore, assuming, but not agreeing, that it was the act of a judicial body, that the Regulation and the Rule are not inconsistent with the provisions of section 33(2) (b) of the 1979 Constitution. They are, therefore, valid.

 

As for the applicability or otherwise of the decision in Falomo’s case (supra) one clear distinguishing feature is that in Falomo’s case the appellant was dismissed whereas in this case there was no evidence or finding that the appellant had been dismissed D.W.1, Sanilah Babatunde Salem, testified under cross-examination as follows:-

 

‘The retiring age of a civil servant is 60 years. The plaintiffs employment was not terminated. The last time the plaintiff received salary was January, 1982. The non-payment of salary for two years is abnormal but we are dealing with abnormal situation. If the plaintiff is still serving he could rise up to the grade of Director of Education. Grade level 16. He could also be permanent Secretary on level.”

 

Indeed respondents’ case was never that appellant was dismissed or terminated, but that he was liable to dismissal under the Rule and the Regulation. Yet they continued to pay his salary from 17th September, 1980, when he was said to have failed/refused to go on transfer till 1st February, 1982.

 

Learned counsel for the appellant on the above facts and more raised the issue of waiver. The other relevant facts to this issue are that when in 1980 the appellant refused to go on transfer the respondents did not invoke Regulation 51 and Rule 04502 to have him dismissed. Rather they continue to pay him his salary until the 1st of February, 1982, when, admittedly without any authority on the Regulations and the Rules, they stopped it. After two letters by himself, the appellant, on the 1st of June, 1982, by a letter Exhibit “S” through his solicitor, demanded immediate payment of his unpaid salaries. The respondents replied to the letter by a letter, Exhibit “T” dated 11th June, 1982. Indeed in Exhibit “T” after narrating their own side of the story, they wrote, inter alia, as follows:-

 

‘The Board, in trying to be lenient, has been reluctant to deal with him under the provisions of Civil Service Rule 04201 and paragraph 26 of the Standard Conditions of Service for Lagos State Parastatals…….

 

So up to that date, they had not yet dismissed him under the Regulation and the Rule. Rather on the 28th of August, 1983, the respondents issued to the appellant a query, Exhibit “00” wherein they catalogued the alleged series of acts of misconduct by the appellant. The query ended by asking the appellant to show within one week why he should not be dismissed on account of the charges leveled against him. It is my view that the above facts, particularly Exhibit “00” are a clear admission that up till the 22nd of August, 1983, the appellant had not been dismissed by the respondents. Appellant’s answer to Exhibit “00” was this suit which he commenced on the 14th of October, 1983. The main point raised by this issue is whether at that stage, some three years after offence of absence from duty without leave or permission was committed, the respondents could still go back and rely on Regulation 51 and Rule 04502. In my opinion any right they might have had to resort to them and dismiss the appellant had been waived. Waiver is an abandonment of a right, and is either express or implied from conduct, a right that has been waived is an 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. Law of Eng. (3rd Edn.) 637. In the instant case, at the time the appellant refused to go on posting and absented himself from duty without leave or permission, the respondents could have summarily dismissed him under Regulation 51 and Rule 04502, subject to the dismissal being reviewed upon any representation he might make. But they did not dismiss him. Rather they continued to pay his salary for some two years when they stopped it without authority, Up till August, 1983 when they issued the query Exhibit “00” to him, they were still treating him as a staff. They had lost the right to fall back to Regulation 51 and/or Rule 04502 to claim that he was dismissed or deemed to have been dismissed.

 

For the above reasons and the fuller reasons contained in the judgment of my learned brother, Ogundare, J.S.C. I allow the appeal and subscribe to the orders made in the leading judgment.

 

OLATAWURA, J.S.C. I had the opportunity of reading in draft the judgment of my learned brother, Ogundare, J.S.C., just delivered. I agree that the appeal should be allowed. Ogundare, J.S.C., has, in a comprehensive manner, stated the facts. I need not go over them again but may have cause to refer to some portions of the evidence of the witnesses if only to highlight some facts. It is also unnecessary to state the grounds of appeal which have been clearly set out in the lead judgment. However, with regard to the issues raised by both parties, it is necessary to set them down for ease of reference. The issues are as follows:-

 

“(a)    Whether Rule 04502 of the Lagos State Civil Service Rules and Regulation 51 of the Lagos State Civil Service Commission Regulations, in so far as they provide for the dismissal of an officer without prior hearing, are in violation of the appellant’s constitutional right to a fair hearing and are therefore to that extent null and void?

 

(b)     Whether on the pleadings and the evidence before the trial court, the said Rule 04502 and Regulation 51 where applicable to the appellant’s case?

(c)     Whether on the pleadings and the evidence before the trial court, the respondents had waived their right to dismiss the appellant under Rule 04502 and Regulation 51?

 

(d)     Whether the appellant was entitled to protection from the court in so far as the events which led to his purported dismissal arose from his crusade to expose fraud within his department?

 

(e)     Whether the trial court was right to have permitted the respondents to amend their pleadings after the close of the appellant’s case?

 

(f)      Whether the case of Falomo v. Lagos State Public Service Commission was correctly decided and if not whether it should be expressly overruled by the Supreme Court?”

 

Suffice it to say the respondents agreed with the issues raised by the appellant except issue (d) on the ground that the issue was not raised in the lower court and should be struck out.

 

The main issue realty is whether rule 04502 of the Lagos State Civil Service Rules and Regulation 51 of the Lagos State Civil Service Commission Regulations are applicable in so far as they are alleged to be in conflict with section 33(1) of the 1979 Constitution of the Federation. Rule 04502 of the Lagos State Civil Service Rules states:-

 

(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 aforementioned 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 then dismissal being imposed revoke the dismissal.”

 

Regulation 51 of the Lagos State Civil Service Rules reads:-

 

“(1)   Without prejudice to the power to institute disciplinary proceedings in respect of any absence from duty without leave or reasonable cause, where a civil servant is absent from duty without leave or reasonable cause, the disciplinary authority may dismiss him without following the procedure prescribed in Regulation 57 or 58.

 

(2)     A Civil servant 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:

 

(a)     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.”

 

It is now better to deal with the case of Falomo v. Lagos State Public Service Commission (1977)11 N.S.C.C. 230 which is issue (f) in the appellant’s brief and which case in my view is heavily relied upon by the appellant in his interpretation of Rule 04502 of the Lagos State Civil Service Rules and Regulation 51 of the Lagos State Civil Service Commission Regulations to justify his conclusion that Falomo’s case was wrongly decided and ought to be set aside. In other words, if the appellant’s counsel succeeds in his invitation that we should set aside Falomo’s case (supra) therefore his interpretation of the Rule and Regulation already set out above may be accepted as correct. In fact Rule 04502 and Regulation 51 are the pith of the issues raised in issues (a), (b) and (c). My learned brother, Ogundare, J.S.C., has dealt with these Rules and Regulation in the judgment and also come to the conclusion that Falomo’s case was properly decided. I agree with him. A cursory look at the Regulation and a superficial reading of the Rule (both already quoted above) give one the impression that they offend against the principle of fair hearing but a closer look and critical analysis of Falomo’s case appear to me to have settled any misconception of the principle of fair hearing when one takes into account the interpretation of the rule and regulation by Idigbe, J.S.C. in Falomo’s case. Falomo’s case shows clearly and positively that it is only when the remedy open to a petitioner or a plaintiff or a complainant under the rule and regulation is disregarded that the principle of fair hearing is breached. In other word, where the rules or regulations make no provision for a hearing then that principle of fair hearing is breached. Ogundare, J.S.C. has quoted in extenso passage of the judgment in Falomo’s case to show that the mere fact that there was no hearing in an administrative matter before dismissal is not a breach of section 33(1) of the 1979 Constitution, if provision is made in the regulation for a subsequent hearing which may lead to a review or even a revocation of the dismissal. The comparison made by the learned counsel for the appellant and the distinction between the 1963 and 1979 Constitution on fair hearing has also been dealt with by my learned brother, Ogundare, J.S.C. said:-

 

“It has not been suggested that our constitutional provisions either abridge or extend the application of the audi alteram partem rule under the common law.

 

That being the case, therefore the non-reference to section 22(1) of the 1963 Constitution in Falomo will not derogate from the quality of this court’s judgment in that case nor its relevance in another case where the provisions of the 1963 or 1979 Constitution are being considered.”

 

I will go further by saying that not only the quality of that judgment but the ratio shows that there is no infraction of section 33(1) of the 1979 Constitution. The interpretation of Regulation 51 and Rule 04502 being urged on us is to give a licence to a civil servant to go on a French leave and after the Rule and Regulation have been invoked by his employer for him to pray in aid the principle of fair hearing. In my view the Rule and Regulation give fair chance and an opportunity to be heard by an aggrieved civil servant (as the appellant in this case) to state why the earlier order not favourable to him should be revoked.

 

It is now necessary to consider the issue of waiver i.e. issue (c) raised by the appellant. The respondent’s counsel has referred to section 50 of the Evidence Act Cap. 62 on the issue of waiver. It appears to me that section 50 of the Evidence Act of Cap. 62 is irrelevant to this appeal. In any case, the Evidence Act is now in Cap. 112 of the Laws of the Federation of Nigeria 1990. Be that as it may the respondents raised one question on this issue of waiver.

“The question therefore is, did the respondents make the appellant believe by his issuance of Exhibit “00” that the latter was still in the service of the respondents?”

 

The learned counsel for the respondents answered the question posed by submitting that from the evidence of D.W 1 no such representation was made. If you talk of waiver one must took 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. From the evidence led in this case, can it be said that the appellant in this case has been dismissed? The answer in my view, is No. In fact, D.W 1 was emphatic in his evidence that the appointment of the appellant has not been terminated and the 1st respondent had this in mind when query, Exhibit “00” was issued. I am sure and I do not need any authority for this that where a servant has been dismissed from the employment of his employer no query is issued again for him to explain why he should not be disciplined. If after stopping the payment of his salary as from January, 1982 because of the conduct of the appellant and his infringement of the Rule and Regulation already cited above how can they now be heard to say that after almost two years of his supposed dismissal that they are issuing a query which up till now has never been answered? There is no doubt that the respondents found the appellant a nuisance and obstructive in that he has opened his mouth too wide in respect of the allegation made by him concerning the award of contracts. It was for that reason, in a desperate haste to stop him that they forgot to dismiss him. Civil Servants are no robots. They are or should be interested in the running of the affairs of the government. They are paid to work and to point out where necessary wrongs by public officials or members of the public. In the course of carrying out their legitimate duties they sometimes step on the toes of others – big and small. Another legitimate duty is to correct the ills of the public service. They should not by so doing be punished and regarded as obstructionists. It will be a dangerous trend for the civil servants not to point out the errors made by their bosses. Whoever has the courage to do so deserves commendation and not condemnation. The nation needs men and women of probity in all sectors of the public service. These public officers will at one stage or another retire but the nation will outlive all of them. Since there are rules and regulations made for the smooth running of the public service, unless these rules are strictly adhered to some will abuse them. A public officer whose salary is normally paid into a nominated bank or account by him cannot presume that failure to pay his salary without being told why the salary was not paid will amount to a termination of his appointment or a dismissal from the service. Even public officers on probation must not be left to guess. In this case on appeal, one is bound to ask if after the query of 22/8/83 as contained in Exhibit “00” whether any letter of dismissal has been addressed to the appellant. It is my view that as at the time the query, that is Exhibit “00” was issued the appellant is deemed to be in employment of the 1st respondent. It is an unusual and strange procedure to dismiss a public servant and therefore issue a query to him to explain why disciplinary action should not be taken against him. My answer to issue (c) is that the respondents have waived their right under the rule and regulation.

 

I now come to the issue of amendment. I 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) N.W.L.R. (part 2) Vol. 18, p. 865 at p.870 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 be allowed is therefore whether or not the parry applying to amend can do so without placing the opposite parry in such a position which cannot be redressed by that panacea which heals every sore in litigation namely costs.”

 

It is therefore my view that the amendment was properly made and in the overall interest of justice. I will therefore come to the same conclusion reached by my learned brother, Ogundare, J.S.C., by dismissing claim 1(i), 1(ii), 1 (iv), 2() and 3 and grant the alternative claims 1 (iii) (a) and (b) and come to the conclusion that the contract of service by the appellant entered into by him with the 1st defendant in 1973 is still subsisting and that the appellant is therefore entitled to his salary and his entitlement up the date of this judgment I also agree with the order for costs made in the lead judgment.

OGWUEGBU, J.S.C. The appellant was the plaintiff in Suit No. ID/656/83 instituted by him in the Ikeja Division of the High Court of Lagos State. The defendants were the Lagos State Civil Service Commission and the Lagos State Schools Management Board.

 

In his amended writ of summons which has pleaded in paragraph 50 of his amended statement of claim, the plaintiff claimed the following reliefs:-

 

The plaintiff’s claim against the 1st defendant is for-

 

(1)     A declaration that the First Defendant had unjustifiably repudiated the contract of service entered into with the plaintiff in or about 1973 by wrongfully refusing to pay the plaintiff his salaries, allowance and other entitlements since 1st February, 1982, to date.

 

(i)      The sum of N500,000.00 being damages for wrongful dismissal.

 

(ii)     In the alternative to 1() and (i) above,

 

(a)     a declaration that the contract of service between the plaintiff and the 1st defendant entered into in or about 1973 still subsists.

 

(b)     an order for payment of arrears of salary and all other entitlements due from 1st defendant to the plaintiff from 1st February, 1982 until the date of judgment.

 

(iv)    The sum of N25,000.00 being general and aggravated damages suffered by the plaintiff as a result of the 1st defendant’s deliberate and malicious stoppage of the plaintiff’s salary as aforesaid.

 

2. The plaintiff’s claim against the 2nd defendant is for:-

 

(i)      the sum of N25,000.00 being damages for wrongfully and maliciously inducing the 1st defendant to breach its obligations under the contract of employment between the plaintiff and the 1st defendant.

 

(ii)     the sum of N50,000.00 being damages for libel contained in a letter ref. No.SMB/CON/PF/206/35 dated 11th June, 1982 written by the 2nd defendant to Mr. O.J. Idigbe, of Chief Rotimi Williams Chambers, the plaintiff’s former Solicitors.

3. The plaintiff claims the sum of N100,000.00 jointly and severally from the defendants being exemplary damages for oppressive, arbitrary and un-constitutional acts against the plaintiff by the defendants, their servants or agents.”

 

After the exchange of pleadings, hearing commenced on the pleadings. At the conclusion, the learned trial judge in a reserved judgment dated 14/12/87 dismissed all the reliefs sought by the plaintiff except claim 2(ii) relating to libel.

 

His appeal to the Court of Appeal in respect of the other claims which were dismissed by the trial judge also failed. Dissatisfied with the decision of the Court of Appeal, the plaintiff appealed to this court. I will refer to him in this judgment as the appellant and the defendant as the respondents.

 

The appellant filed his notice of appeal containing seven grounds of appeal (a) to (g) on 4/3/88. Leave was granted to the appellant by this court on 12110/88 to argue grounds (a) (b), (c) and (e) only.

 

I do not intend to reproduce the grounds of appeal in this judgment except where it is found necessary to do so.

 

However, the following issues based on the grounds of appeal were identified by the appellant for determination in the appeal:-

 

“(a)    Whether Rule 04502 of the Lagos State Civil Service Rules and Regulation 51 of the Lagos State Civil Service Commission regulations in so far as they proved for the dismissal of an officer without prior hearing are in violation of the appellant’s constitutional right to a fair hearing and are therefore to that extent null and void?

 

(b)     Whether on the pleadings and the evidence before the trial court, the said Rule 04502 and Regulation 51 were applicable to the appellant’s case?

 

(c)     Whether on the pleadings and the evidence before the trial court, the respondents had waived their right to dismiss the appellant under Rule 04502 and Regulation 51?

 

(d)     Whether the appellant was entitled to protection from the court in so far as the events which led to his purported dismissal arose from his crusade to expose fraud within his department?

(e)     Whether the trial court was right to have permitted the respondents to amend their pleadings after the close of the appellant’s case?

 

(f)      Whether the case of Falomo v. Lagos State Public Service Commission was correctly decided and if not, whether it should be expressly over-ruled by the Supreme Court?”

 

In paragraph 3.1 page 3 of the respondents’ brief of argument, they accepted issues (a), (b), (c), (e) and (f) formulated by the appellant as set out above. They refused to accept issue (d) as arising for determination since it was not raised in the court below and urged the court to strike out.

 

I will now summarise the fad of the case as canvassed by the parties in support of their contentions in the court of trial and the Court of Appeal for a better appreciation of the arguments.

 

It was accepted by both parties that the appellant joined the service of the 1st respondent in 1973 and was deployed to the service of the 2nd respondent in April, 1980.

 

It was the appellant’s case that after his deployment to the 2nd respondent, he continued to receive his salary from the 1st respondent, through the State Ministry of Education. Shortly after his resumption of duty with the 2nd respondent, the appellant observed some irregularities in the award of contracts by the Tenders Committee of the 2nd respondent, of which he was the Secretary. As a result of this, he wrote a petition to the then Governor of Lagos State (Exhibit “M”) headed “Improper award of contracts and threat of intimidation.”

 

The Head of Lagos State Civil Service in a letter dated 11th June, 1980 (Exhibit “N”) replied the appellant stating that Exhibit “M” was wrongly routed to the Governor by the appellant and referred him to the relevant Government Circular.

 

It was part of the appellant’s case that as a result of his action, his relationship with members of the Tenders Committee and his co-workers was strained. When the Governor paid an official visit to the premises of the appellant, he took the opportunity to raise the issue contained in Exhibit “M” with the Governor personally. The Governor directed that the matter be investigated.

 

He was served with a query the day after the Governor’s visit and he replied to it. By a letter dated 17th September, 1980, the appellant was redeployed to Muslim School, Egbe as principal of the college. He denied receiving the letter. In February, 1982, the salary of the appellant was stopped and he instructed his solicitors – Chief Williams Chambers to write a letter to the 2nd respondent. The appellant was issued a final query – Exhibit “00” and he filed the present action against the respondents.

 

The respondents’ case was that their relationship with the appellant became strained when the appellant felt he was the most senior professional officer in the service of the second respondent and yet he was not made a Director. He was dissatisfied with his position as Secretary to the Purchasing Supplies and Maintenance Committee. They agreed that the appellant complained about some irregularities and impropriety in the manner contracts were awarded by the Committee. The allegations were investigated and found to lack substance.

 

The appellant was deployed to Muslim College, Egbe in December, 1980 where he would be the Principal of the School.

 

The respondents said that the appellant disregarded the posting, absented himself without leave or reasonable cause until February, 1982 when this was brought to the knowledge of the respondents.

 

When respondents were unable to reach the appellant, they had to exercise their powers under Rule 04502 of the Civil Service Rules 1980 and Regulation 51 of the Lagos State Civil Service Commission Regulations, 1980.

 

In February, 1982, the respondents stopped the payment of the appellant’s salary by invoking Rule 04502(b)(1) and Regulation 51(2)(a).

 

The respondents also stated that in August, 1983, they issued a query to the appellant with a view to re-opening his case and he failed to make any representation in respect of the charges against him which were contained in the query.

 

The above summary provides the background to the issues canvassed by both parties in this appeal.

 

On issue(a), the learned appellant’s counsel submitted that as a Civil servant in the established pensionable cadre of the Lagos State Civil Service, the appellant is entitled to the full rights and privileges contained in the Civil Service Commission Regulations and the 1979 Constitution of the Federal Republic of Nigeria as explained and affirmed by this court in the following cases among others:-

 

1. Shitta-Bey v. Federal Civil Service Commission (1981) 1 S.C. 40.

 

2. Bendel State Civil Service Commission v. Buzugbe (1984) 7 S.C. 19.

 

3. Olatubosun v. WS.E.R. Council (1988) 3 N.WL.R. (part 80) 25 and

 

4. Federal Civil Service Commission v. Laoye (1989) 2 N.WL.R. (part 106) 652.

 

Counsel stated that the appellant could only be terminated in strict compliance with the Rules and the Constitution. He referred to Regulation 51 of the Lagos State Civil Service Commission Regulations 1980, Rule 04502 of the Lagos State Civil Service Rules 1980 and section 33(1) and (2) of the 1979 Constitution.

 

Regulation 51 of the Lagos State Civil Service Rules, 1980 provides:-

 

“51(1)Without prejudice to the power to institute disciplinary proceedings in respect of any absence from duty without leave or reasonable cause, where a civil servant is absent from duty without leave or reasonable cause, the disciplinary authority may dismiss him without following the procedure prescribed in Regulation 57 or 58.

 

(2)     A Civil servant 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:

 

(a)     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; ……….

 

Rule 04502 of the Lagos State Civil Service Rules provides:-

 

(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 04508 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 proceedings in respect of such acts or omissions and with a view to a lesser punishment that dismissal being imposed revoke the dismissal.”

 

Section 33(1) and (2) of the 1979 Constitution provides as follows:-

 

In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.

 

(2)     Without prejudice to the foregoing provisions of this section, a law shall not be invalidated by reason only that it confers on any government or authority power to determine questions arising in the administration of law that affects or may affect the civil rights and obligations of any person if such law:-

 

(a)     provides for an opportunity for the person whose rights and obligations may be affected to make representations to the administering authority before that authority makes the decision affecting that person; and

 

(b)     contains no provision making the determination of the administering authority final and conclusive.”

 

The learned counsel for the appellant stated that section 33(1) and (2) of the 1979 Constitution must be read together and that subsection (2) is merely a proviso to subsection (1) which is the operative section. He further submitted that this court had stated on many occasions that when considering the fundamental rights provisions in the 1979 Constitution, a broad interpretation is to be preferred. The following cases were referred to:-

 

(1)     Rabiu v. The State (1980) 12 N.S.C.C. 291 at 300-301 and

 

(2)     L.P.D.C. v. Fawehinmi (1985) 2 N.W.L.R. (part 7) 300.

 

It was submitted that any provision which sought to take away the employment and pension rights of the appellant without giving him a hearing is in violation of section 33(1) of the 1979 Constitution and therefore unconstitutional.

 

The learned counsel for the appellant contended that Regulation 51(1) and Rule 04502 (a) allow the disciplinary authority to dismiss an officer without following the proper procedure. We were urged to hold that both Regulation 51(1) and Rule 04502 (a) are null and void and to allow the appeal on this ground alone.

 

Mr. Oyewole for the appellant submitted in the alternative that on the pleadings and the evidence before the trial court, the respondents’ case was that the appellant was only liable to be dismissed under the said Rules and that he had not been dismissed and payment of the appellant’s salary was stopped as an alternative to dismissal.

 

Based on the above stand of the respondents, counsel contended that it was perverse of the learned trial judge to have held that the appellant had been dismissed bearing in mind that the parties are bound by their pleadings:-

 

1. National Investment Properties v. Thompson Organization (1969) N.M.L.R. 99 and

 

2. Adimora v. Alufo (1988) 19 N.S.C.C. 1005

 

We were urged to answer the second issue for determination in the negative.

 

Mrs. Okuwobi, Chief Legal Officer, Ministry of Justice, Lagos State, learned counsel for the respondents submitted in her brief of argument that the applicable Regulation and Rule in the appellant’s case are Rule 04502 of the Lagos State Civil Rules, 1982 and Regulation 51 of the Lagos State Civil Service Commission Regulation, 1980.

 

She stated that the validity of the above Rule and Regulation were called to question in this appeal as being in violation of section 33(1) of the Constitution of the Federal Republic of Nigeria, 1979 because the authority did not afford the appellant a right of hearing before he was dismissed.

 

She referred the court to Rules 04508 and 04511 of the Lagos State Civil Service Rules and Regulations 54 and 55 of the Civil Service Commission Regulations. She said that the Rules and Regulations empowered the Commission to exercise its discretion in dismissing a public officer for being absent from duty without leave or reasonable cause.

 

I would ask the question whether there was in fact a violation of the maxim “audi alteram partem” which is otherwise referred to as a right to fair hearing enshrined in section 33 of the Constitution of the Federal Republic of Nigeria, 1979 as amended in the circumstances of the appellant’s case?

 

Did Rule 04502 of the Lagos State Civil Service Rules and Regulation 51 of the Lagos State Civil Service Commission Regulations violate the appellant’s constitutional right in so far as they provide for the dismissal of an officer without prior hearing?

 

I would answer the question in the negative for the following reasons:-

 

The applicable Rules and Regulations are the Lagos State Civil Service Rules which were revised to 1/1/82 and the Lagos State Civil Service Commission Regulations, 1980 which came into force on 1/6/81.

 

Rule 04502 (b)(1) and Regulation 51(2)(b) thereof contain the proviso that:

 

“….. if the civil servant concerned can later satisfy the Disciplinary Authority that the circumstances of his having committed any of the acts or omissions aforementioned 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.”

 

Regulation 51 and Rule 04502 satisfied the safeguards provided in section 32(2)(a)and (b) of the Constitution. What is more, the decision of the Disciplinary Committee under Regulation 51 or Rule 04502 is not irrevocable.

On a close examination of the provisos to Regulation 51 and Rule 04502 it is quite clear that upon the exercise of the power by the appellant, the disciplinary authority must give him a hearing depending on the cogency of the explanation and may even go forward to institute proceedings. The disciplinary authority could even revoke their earlier order to dismissal instead of imposing a lesser punishment or penalty. See Falomo v. Lagos State Public Service Commission (1977) 11 N.S.C.C. 230 and Vestry of St. James and St. John Cerkenwell v. Feary (1890) 24 Q.B.D. 703.

 

“Constitutionally entrenched provisions, particularly those safeguarding individual rights should not, save in a fascist system be lightly trampled upon…….. per Irikefe, C.J.N. as he then was in Eperokun v. University of Lagos (1986) 4 N.W.L.R. (part 34) 162.

 

Regulation 51 and Rule 04502 aforesaid are not in violation of section 33(1) of the 1979 Constitution and are not therefore null and void.

 

From the pleadings and the evidence, the said Rule 04502 and Regulation 51 were applicable to the appellant. They were applicable to him by virtue of Regulation 2(2) of the Regulations and Rule 01001 of the Rules because the Civil Service Commission has powers of appointment, dismissal and disciplinary control over any officer of the appellant’s cadre.

 

Coming to issue (c) as to whether the respondents from their pleadings and evidence before the trial court had not waived their right to dismiss the appellant under Rule 04502 or Regulation 51. One has to look at the pleadings of the respondents and their evidence on the question.

 

Paragraph 14 of the amended statement of defence and the evidence of D.W. 1 will give a clue to the answer. In the said paragraph 14, the respondents’ averred:

 

“14.   Further to paragraph 13 of this statement of defence the 1st and 2nd defendants aver that the plaintiff failed to assume his new duty post neither did he report for duty regularly at the office of the 2nd defendant. The 1st and 2nd defendants will contend that by his action the plaintiff was liable to summary dismissal under the Civil Service Rules and Standard Conditions of Service for Lagos State Parastatals. The 1st and 2nd defendants will at the trial of this suit rely on the Civil Service Rules and Standard Conditions of Service for Lagos State Parastatals………..

 

In his examination in chief at page 104 from line 14 to 19, d.w. 1 stated:-

 

“In February, 1982 the salary of the plaintiff was stopped. The reason is that he was not working in the School or the Board and he did not turn up before the Medical panel as instructed. For about two years he was receiving his salary when it was not known where he was actually working.”

 

In answer to cross-examination at page 105 lines 24 to 27 and lines 32 34, D.W. 1 stated:-

 

“It is not the practice in the Civil Service to stop salary of any officer to make him comply with instruction. ………….. The non-payment of salary for two years is abnormal but we are dealing with abnormal situation.”

 

By stopping the appellant’s salary, the respondents were not acting under the provision of Rule 04502 or Regulation 51. None of them has provision for stoppage of salary of a civil servant for the misdeeds set out in those provisions.

 

It was not part of the case of the respondents that they had dismissed the appellant. It was not open to the High Court and the Court of Appeal to raise issues not raised by the parties: See Kuti v. Balogun (1978) 1 S.C. 53 and Ochonma v. Unosi (1965) N.M.L.R. 3231.

 

Strictly speaking, it is under regulation 49 that the salary of a civil servant of the appellant’s cadre adjudged by a court of law to be guilty of a criminal offence could be stopped from the date of such judgment, pending the decision of the disciplinary authority. Even an interdicted officer after conviction of a criminal offence but before disciplinary action is taken, receives half his salary. See Regulation 47.

 

From the foregoing, the respondents did not dismiss the appellant at all let alone under Rule 04502 and Regulation 51. The purported dismissal of the appellant is of no effect and the stoppage of his monthly salaries did not produce the result of summary dismissal as provided in the Rules and regulation.

 

In the circumstance, the effect of this judgment is that the appellant was always at all times material to these proceedings and still is in the service of the respondents. In other words, the contract of service entered into between the appellant and the 1st respondent in or about 1973 still subsists and he is entitled to the arrears of salary and all other entitlements from 1st February, 1982 until the date of judgment and I so order. The result of issue (c) is that the respondents waived their rights to dismiss the appellant under Rule 04502 and Regulation 51.

 

They must have realized their folly though belatedly when they sent a query dated 22/8/82 to the appellant and this query sparked off the present proceedings. Issue (d) did not arise from the judgment of the Court of Appeal and I say no more about rt.

 

In the result, the appeal succeeds. I agree entirely with the reasons and conclusions reached by my learned brother, Ogundare, J.S.C., in all the issues in his judgment. The judgment of the Court of Appeal is set aside by me.

 

The net result is that claims 1(), (i), (iii), (iv), 2() and 3 fail and are hereby dismissed by me. Claims 1 (ii)(a) and (b) succeed. . I hereby adopt all the consequential orders including that as to costs contained in the judgment of my brother, Ogundare, J.S.C.

 

MOHAMMED, J.S.C. I have had a preview of the lead judgment of my learned brother, Ogundare, J.S.C. just delivered. I agree. with his reasoning and conclusion which I adopt as mine. I abide by all the orders he has made including the order for costs.

 

Appeal allowed.