3PLR – S.O. ADEDEJI V. POLICE SERVICE COMMISSION
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
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SUIT NO. SC 518/1966.
3PLR/1967/4 (SC)
BEFORE THEIR LORDSHIPS:
ADEMOLA, C.J.N.
REPRESENTATION
Chief F.R.A Williams and Akesode – for the appellant
Mr. A. A. Adediran, J. O. OJosipe and A Also – for the respondent
MAIN ISSUES
ADMINISTRATIVE LAW – Certiorari – Dismissal of Police Officer for misconduct – Requirements of natural justice – Opportunity to know and meet case- Officer not given copy of written complaint or informed of evidence against him –
TRIBUNALS – Disciplinary Proceedings – Police Service Commission’s right to regulate its own procedure within requirements of natural justice – Audi alteram partem rule where oral hearing not prescribed
MAIN JUDGEMENT
ADEMOLA, C.J.N. (delivering the judgment of the Court):
This is an appeal against the refusal of an order of certiorari to remove the decision of the Police Service Commission dated 24th November, 1965 dismissing him from the Police force, and to be quashed.
The appellant, who was an Assistant Superintendent of Police in the Nigeria Police Force, was on the 28th September 1965 served with a letter signed by some-one for the Secretary for the Police Service Commission. A copy of the letter was attached to the appellant’s affidavit (marked exhibit A) and reads:-
Mr. Stephen O. Adedeji,
Assistant Superintendent of Police,
u.f.s. The Inspector-General of Police, Lagos.
“NO. FC.17573/17,
Police Service Commission, Private Bag 12586,
Lagos, Nigeria.
28th September, 1965
Sir,
It has been reported to the Commission that on the 11th June, 1965, you received the sum of nineteen pounds (£)19 in order to issue certificates of roadworthiness for Motor Cycle No.830 and Peugeot Taxi Cab No. WL 1414; a Photostat copy of Certificate, of Roadworthiness No. WR 488282 which you issued in respect of the Peugeot car is attached for perusal. This is a contravention of G. O. 04105(i) and also warrants dismissal.
“It is also reported that whereas you signed the said Certificate of Roadworthiness certifying that you had examined vehicle No. WL 1414 at Ife you did not in fact examine the vehicle. This is a contravention of G. O. 04105(i) and also warrants dismissal.
“If you have any representation to make on your behalf as to why you should not be dismissed from the Service you are hereby requested to make them, through the Inspector-General of Police, within 48 hours of the receipt by you of this letter.
I am, Sir,
Your obedient servant (Sgnd.) (:C. OKONKWO), for Secretary.
Police Service Commission.”
In reply to this letter, the appellant in a three paged letter dated 19th October, 1965 (exhibit B) sought to exculpate himself. The contents of this letter are not material to this judgment but it is necessary to point out that the appellant set out certain facts which took place prior to his arrest. Certain material facts were later set out in a counter-affidavit filed on behalf of the respondent and sworn to by one Gbemudu, an Assistant Superintendent of Police, who claimed to have arrested the appellant. Some of these facts contradicted the appellant’s letter of 19th October, 1965.
On the 24th November, 1965, a letter of dismissal from the Police Service Com-mission was served on the appellant. The letter (marked exhibit C and attached to the appellant’s affidavit) reads as follows:-
“No. F.C. 17573/36
Police Service Commission, Private Bag 12586,
Lagos, Nigeria.
24th November, 1965
Mr. S.O. Adedeji. A.S.P. (V.I.O.), u1s. The Inspector-General of Police, The Nigeria Police,
Force Headquarters, Moloney Street, Lagos.
Sir,
The Police Service Commission has carefully considered your representations dated 19th October, 1965, in, reply to my letter No. FC. 17573/17 of 26th September, 1965 but it does not consider that you have exculpated yourself. It has, therefore, directed that you be, and you are hereby dismissed from the service forthwith for gross misconduct.
I am, Sir,
Your obedient servant (Sgd.) (E.A. OFFIONG) for Secretary,
Police Service Commission.”
On the 16th December, 1965 the appellant promptly asked the court for leave to apply for an order of certiorari to quash this decision. An order nisi was made but when the matter was later argued, the learned Chief Justice of the High Court refused to make it absolute and dismissed the application. From that order of dismissal the appellant has appealed to this court.
The arguments before us for the appellant were based on the same premises as argued before the learned Chief Justice and may be summarised under three submissions as follows:-
- That the provisions of General Order No. 04107 dealing with removal or dismissal of officers from the service have not been complied with.
- A full statement of the facts or evidence upon which the Police Service Com-mission relied for dismissal of the appellant was not at any time communicated to him, and this is a breach of the rules of natural justice.
- It was necessary in this case to have taken oral evidence, and failure to do so is a denial of justice.
We propose to deal first with the third submission. Chief Rotimi Williams for the appellant, whilst not stating categorically that in all cases oral evidence must be heard by the Police Service Commission, argued that in a case of this nature with its peculiar circumstances, oral evidence should have been heard, and the letter exhibit A to the appellant was not enough. We do not know the peculiar circumstances Chief Rotimi Williams referred to, but what we think was peculiar was the fact that an allegation of corruption was made against the appellant and despite his arrest on the spot, the Director of Public Prosecutions Western Nigeria, refused to prosecute the appellant on the ground that it would not be in the interest of the public generally, or the Police Force in particular, to do so. We refrain from saying any more about this. We wonder, however, whether the attitude of Chief Williams to this is that the trial in court which did not take place should have been staged by the Police Service Commission, because we do not see any provision
in the General Orders which include oral evidence as essential to proceedings before the Commission; nor were rules made by the Commission for regulating its affairs in such circumstances made available to the court below, or to this court, which make It essential for the Commission to hear oral evidence. We are of the view that the Police Service Commission, like any other tribunal of this nature, is entitled to decide its own procedure and lay down its own rules for the conduct of enquiries regarding discipline and the like – See R. v. Central Tribunal Ex pane Parton 32 T.L.R. 476. It is of the utmost importance however that the enquiry must be in accordance with the principles of natural justice. We do not think this re-quires oral hearing. Chief Williams has urged that in some cases, like the instant case, anything short of oral hearing will lead to Injustice. He referred us to a pas-sage in de Smith’s Judicial Review of Administrative Action, at page 110 where the learned author said:-
“A person who is entitled to the protection afforded by the audi alteram partern rule must not only be given adequate opportunity to know the case he has to meet; he must also be given an adequate opportunity to answer it.”
But the learned author continues, and this is important for our purpose:-
“But he is not entitled to an oral hearing unless such a hearing is expressly prescribed:”
In an Australian case R. v. City of Melbourne, Ex Pane Whyte (1949) Victorian Law Rep. 257 where a Licensed Vehicles Committee was performing quasi-judicial functions and was acting judicially when considering the revocation, cancellation or suspension of the prosecutor’s licenses ft was held that in the absence of provisions enforcing an oral hearing the tribunal need not hear the parties. At page 265 of the report, in his judgment O’Bryan J. said-
“It is quite clear to my mind that the licensee …………. must be given a reasonable opportunity of presenting his case and of meeting any relevant allegations which are made against him. But does that mean that he has the right to be heard in person before the tribunal? In my opinion it does not mean such a thing. He would, in my opinion, have no such right when his original application for licence was being considered or when his application for renewal was under consideration.”
As we have observed earlier, we are not aware that an oral hearing Is prescribed in any rules governing the procedure of the Police Service Commission. We may add that in our view, where oral evidence is prescribed, If it is wanted, it should be asked for. The Commission is an administrative department or tribunal, created by the Constitution, and, of this type of body or tribunal, Lord Haldane, LC. In the case local Government Board v. Arlidge [1915] A.C. 120 at page 132 said:-
“Such a body as the Local Government Board has the duty of enforcing obligations on the individual which are imposed in the Interest of the community. Its character is that of an organisation with executive functions. In this it resembles other great departments of state. When therefore, Parliament entrusts it with judicial duties, Parliament must be taken in the absence of any declaration to the contrary, to have Intended it to follow the procedure which is its own, and is necessary if R is to be capable of doing its work efficiently.”
We now consider the first and second submissions together. It was submitted that the provisions of General Order No. 04107 have not been complied with. After setting out the grade of officers (which includes the appellant) who may be dismissed by Government only in accordance with certain rules, the learned Chief Justice in his considered judgment set out the relevant rules in the General Orders as follows:-
(i) the officer shall be notified in writing of the grounds upon which it is in-tended to dismiss him; and he shall be given a full opportunity of exculpating himself;
(ii) the matter shall be investigated by the Government with the aid of the Head of the Officer’s Department or some other officer or officers, as the Government may appoint……..
(iii) if any witnesses are called to give evidence the officer shall be entitled to be present and to put questions to the witnesses;
(iv) no documentary evidence shall be used against the officer unless he has previously been supplied with a copy thereof or given access thereto;
(v) in lieu of dismissal, the Federal Police Service Commission may at its discretion impose lesser penalty such as reduction in rank, stoppage of increment, or reprimand. Alternatively, If the proceedings disclose grounds for so doing, the Commission may without further proceedings require the officer to retire in accordance with General Orders 04114.”
The complaint is not against all the above five paragraphs but against the second half of the first paragraph and also paragraph (iv).
The submissions made here are that the appellant was not given a full opportunity of exculpating himself and that the evidence against him was not made known to him.
The learned Chief Justice in the court below dealt with these points by refer-ring to the case of Byrne v. Kinematograph Renters Society Ltd and another [1958] 2 All E.R. 579 at 599 and quoted Harman J. (as he then was) as saying:-
“Secondly, it was said that he was not shown the charge, that is to say, Mr. Bolton’s summary which was the only document before the Committee. This is much more serious, but on the whole I conclude that the plaintiff was not injured in this respect. There is nothing in Mr. Bolton’s summary which is not in Mr. Bolton’s letter dated 11th May, 1956, to the plaintiff, and the plaintiff admitted that he knew what was the complaint made against him, namely, the discrepancies in the two weeks already discussed.”
The learned Chief Justice after referring to the above portion of the judgment of Harman J. continued:-
“Can anyone after seeing exhibit A and reading the applicant’s reply exhibit B come to any other conclusion but that the applicant knew very well the complaint made against him.”
We have had the opportunity of reading the case of Byrne v. Kinematograph Renters Society Ltd and another and it appears that Harman J. (as he then was), whilst regarding it as serious that the appellant in that case was not shown the charge against him, found that the charge although not presented to the appellant as summarily made, was fully put in a letter to the appellant and that the appellant knew the charge and that it was no more than discrepancies in figures for a period of two weeks. These figures, in our view, are clearly the evidence which the appellant in that case was required to regard as particulars of the charge against him and which was relied upon.
Surely, exhibit A in the Instant case could be no more than a charge, without giving particulars or evidence. The appellant no doubt, when confronted with Exhibit A knew what is was all about and gave his own version of the matter. The particulars and evidence relied upon by the Police Service Commission later disclosed in an affidavit, were never supplied to the appellant. It was however evident that he was not dismissed on his own version since the nature of the evidence against him was supplied later but only at the hearing of the case before the learned Chief Justice; namely the counter-affidavit of Felix Okolie Akazue Gbemudu, Assistant Superintendent of Police. We observe that the facts in this counter-affidavit differ on material points from exhibit B which was the appellant’s version. These new facts were not brought to the notice of the appellant. However that may be, since it is clear from the record before us that the complaint against the appellant was made in the first place in writing, in our view the proper course was for the Police Service Commission to supply the appellant with a copy of the written com-plaint against him. The accused person must know the name of his accuser and all what he said about him before it could be said that he was given a full opportunity of exculpating himself. As the Privy Council put it in the case of Kanda v. Government of the Federation of Malaya [1962] A. C. 322 at page 337.
“If the right to be heard is to be a real right which is worth anything, it must carry with it right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him; and then he must be given a fair opportunity to correct or contradict them.”
Again in the case of Board of Education v. Rice and others, [1911] A. C. 179 referred to by the learned Chief Justice, Lord Lorebum L.C. at page 182 of the re-port, after stating the powers given by recent statutes to departments of Governments and tribunals with quasi-judicial powers, said-
‘They can obtain information in any way they think best, always giving a fair opportunity to those who are parties in the controversy for correcting or contradicting any relevant statement prejudicial to their views……”
We are not laying in down that in every case a copy of the written complaint made must be supplied to parties in the controversy; it is the ideal to do so. ‘The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with and so forth” per Tucker L J., in Russell v. Duke of Nor-folk and others [194911 All E.R. 109 at page 118.
Now can it be truly said that paragraphs 1 and 2 of the three paragraphed letter exhibit A sufficiently apprised the appellant of the case against him giving him sufficient opportunity to state his case in rebuttal? We cannot with any honesty say yes after reading the four foolscap pages of the counter-affidavit of Gbemudu, the Assistant Superintendent of Police, to which we have referred. We cannot understand why the full facts were not put to the appellant for him to rebut.
We are therefore not satisfied that when the circumstances of this case are looked into adequate opportunity was given to the appellant to meet the case or the facts of the case known to the Commission. It is possible the appellant is corrupt and did commit the offence alleged against him; this is not what we have to consider. Was the case against him sufficiently brought home to him that one can say that the requirements of natural justice were sufficiently observed on the facts and the circumstances?
We are of the opinion that this appeal should be allowed and that the proceedings before the Police Service Commission be invalidated. We therefore set aside the judgment dated 1st March, 1966 of the learned Chief Justice in Suit No. M/250/1965 dismissing the appellant’s application for writ of certiorari to quash the decision of the Police Service Commission contained in the letter dated 24th November, 1965, and dismissing the appellant from the Service and we hereby order that the writ should go and the aforesaid letter dismissing the appellant is hereby declared Inoperative, void and of no effect.
Appellant is entitled to costs which are assessed at 50 guineas. Appeal allowed. Order of Certorari granted.
