DR. A. O. FALOMO (APPELLANT)
LAGOS STATE PUBLIC SERVICE COMMISSION (RESPONDENT)
(1977) All N.L.R. 102
Division: Supreme Court of Nigeria
Date of Judgment: 13th May, 1977
Case Number: SC.457/75
Before: (Udo Udoma, Irikefe; Idigbe JJ.S, C)
The appellant who was an employee of the Public Service of Lagos State brought an application for an order of certiorari to move the High Court to quash the decision of the Lagos State Public Service Commission dismissing him from the Public Service of Lagos State.
The material facts which form the background to the said application are as follows: The appellant was posted to the Island Maternity Hospital Lagos as an unconfirmed Medical Officer Grade II. Whilst at the hospital there were series of complaints concerning his behaviour by his immediate superior officer; some of the complaints concern allegations of gross acts of professional misconduct and others relate to alleged criminal offences. However the material complaint leading to his dismissal from service was that he was absent from duty without permission. There were some unsuccessful efforts made by his immediate boss, the medical consultant to obtain from him some explanation for his conduct, in this connection, a note was addressed to him inviting his explanation for his absence from duty. At first he refused to accept the note but later when subsequent notes were sent he could not be found to be served with these notes. In the circumstances the Head of Department sent a detailed report supported with written complaints from other doctors to the respondents who by their letter dated 13th May, 1974, dismissed the appellant from the Public Service of Lagos State.
On receipt of this letter the appellant in exercise of his right under the proviso to Regulation 52 of the Public Service Commission (Proceedings) Edict No. 1 of 1969 by a letter dated 20th May, 1974 addressed to the secretary to the Public Service Commission denied the accusation and allegation that he was absent from duty during the relevant period, adding that he was never asked for his explanation for being absent from duty, and asked that "disciplinary Proceedings" in respect of his alleged absence from duty be instituted without delay. Finally he asked that the order for his dismissal be revoked. Without waiting for the outcome of his letter of 20th May, 1974 the appellant commenced these proceedings. In his judgment the trial Judge held that in the circumstances in which a public servant absents himself without cause from duty and cannot be found, the Public Service Commission has no responsibility to seek him first and inquire into the reasons for his absence.
Being dissatisfied with the decision the appellant appealed to the Supreme Court contending that he was never asked for an explanation for being absent from work before disciplinary action was taken against him. He hinged his appeal on the maxim audi alteram partem.
(1) In the realm of administrative law it is settled by a long line of decisions 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.
(2) It is not necessary that in order to establish that a duty to act judicially has been carried out by an administrative body, person or tribunal the exercise must essentially or analytically be of a judicial character or that it involves a determination of a dispute between parties-in the sense of applying the principle of audi alteram partem. The principle of audi alteram partem may be excluded expressly or by necessary implication by statute.
(3) Where, however, the statutory provisions exclude the need for prior hearing of the party whose rights are to be affected by the decision of an administrative body but in addition contain 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 an implied duty on the part of such a body (ie administrative body) to apply the audi alteram partem rule before the original decision is made.
(4) The Lagos State Public Service Commission has a discretion under the provisions of Regulation 52 of the Public Service Commission (Proceedings) Edict No. 1 of 1969 and in exercise of its powers under section 5 (1) of the Lagos State (Interim Provision) Decree No. 13 of 1968 of either (a) dismissing a servant in the Lagos State Public Service, for being absent from duty without leave or reasonable cause without first calling upon him for his explanation where as in the case in hand, the servant wither cannot be found, or refuses to accept from his immediate superior officers a note asking, for his explanation for being absent from duty without leave or cause.
(5) It is always open to the servant in exercise of his right under the proviso to Regulation 52 aforesaid to ask the commission for a review of its decision when the servant shall have opportunity of being heard by the commission which in the event, will be observing the audi alteram partem rule.
Mr Gani Fawehinmi for the Appellant
G.A.A.T. Jinadu (State Counsel Lagos State) for the Respondents
Statutes referred to:
(1) Lagos State Public Service Commission (Proceedings) Edict No. 1 of 1969
(2) Objectionable Literature Act of Queensland (Australia) 1954
(1) Copper v. Wandsworth District Board of Works (1863), 14 CB, (N.S.) 180
(2) Commissioner of Police v. Tanos (1958) 98 C.L.R. 383
(3) A.K. Hard v. Military Governor of Rivers State and Ors (1976) 11SC. 211.
(4) Literature Board of Review v. H.M.H. Publishing Company Inc, Ex parte H.M.H. Publishing Co Inc (1964) Queensland Report 26.
(5) Ridge v. Baldwin (1964) A.C. 40.
(6) St James and St John Clerkenwell v. Feary (1890) 24 Q.B.D. 703
(7) Queen v. Corporation of Dublin 2 L.R. Ir 371.
(8) R. (Wexford C.C.) v. Local Government Board (1902) 21R 349.
Idigbe, J.S.C.:-This appeal is from the Judgment of the High Court of Lagos State holden in Lagos (Adefarasin Ag. C.J. as he then was) dated the 13th day of November, 1974 by which he dismissed the appellant's application for an order of certiorari to remove into the High Court of Lagos State for the purpose of being quashed the decision of the Lagos State Public Service Commission dismissing the applicant, the appellant herein (Dr Akinlade Ore Falomo), from the public service of the Lagos State.
Briefly, the material facts which form the background to the said application by the appellant-as they appear from a number of affidavits and documents exhibited in the court below and from the oral testimony received in that court and which the learned trial Judge accepted-are as follows: The appellant was at all time material to the proceedings in the lower court employed in the Public Service of the Lagos State and was posted to the Island Maternity Hospital Lagos as an "unconfirmed" Medical Officer Grade II (i.e. he was employed in that capacity on a month to month basis). Prior to the incident on account of which he (the appellant) was dismissed by the Public Service Commission, the respondents herein, there had been series of complaints by his immediate superior officers some of which had been brought to his notice and in respect of which he made representations to the immediate Head of his Department-the Permanent Secretary in the Lagos State Ministry of Health. Some of these complaints concern allegations of gross acts of professional misconduct and others relate to alleged criminal offences. However, the material complaint leading to his dismissal from service was that he was absent from duty without permission (i.e. without leave or any cause) between the 15th and the 22nd day of April, 1974. While still absent from duty the appellant on the 23rd day of April, 1974, sent to his Department a medical certificate purporting to "excuse him from duty" for a period of seven days beginning from the 23rd day of April, 1974. During the period between 15th and 22nd April, 1974, the appellant was seen at a meeting and public seminar held at Enugu in the then East Central State. There were some unsuccessful efforts made by his immediate "boss", the medical consultant to whom he was immediately subordinated, to obtain from him some explanation for his conduct; in this connection, a note was addressed to him inviting his explanation for his absence from duty. At first, he refused to accept the note but later, when subsequent notes were sent to him inviting his explanation he could not be found to be served with these notes. The appellant, not being on duty, could not be found in the premises of the hospital and all efforts to find him in his normal place of abode failed. In the circumstances, the Head of the Department-the permanent secretary in the Lagos State Ministry sent a very detailed report supported with written complaints from other doctors who normally worked with the appellant in the Lagos Island Maternity-including a report from the Chief Consultant to whom the appellant was subordinated-to the respondents who, by their letter of 13th May, 1974, addressed to him, dismissed the appellant from the public service of the Lagos State; parts of that letter (exhibited as Exh. 11) read:-
"DISMISSAL FROM SERVICE
I am directed to inform you that contrary to Regulation 52 of the Lagos State Public Service Commission (Proceedings) Edict No. 1 of 1969 and consequent upon the report made against you in this particular regard, the Commission has found you guilty of the offence of absenting yourself from duty without leave or reasonable cause from "the 15th to the 22nd of April, 1974, the penalty of which is dismissal. You are therefore dismissed from the Lagos State Public Service with effect from the day following the date of your receipt of this letter.
(Sgd.) L. OSIKOMAIYA
On receipt of this letter (Exh. 11) the appellant in exercise of his right under the proviso to Regulation 52 of the Public Service Commission (Proceeding) Edict No. 1 of 1969 (herinafter referred to as the "Public Service Commission Edict") by a letter of 20th May, 1974, (Exh. OSH 4 in these proceedings) addressed to the Secretary to the Public Service Commission denied the accusation and allegation that he was absent from duty during the relevant period, adding that he was never asked for his explanation for being absent from duty, and asked that "disciplinary proceedings" in respect of his alleged absence from duty be instituted without delay; he added that he "was fully prepared with facts and figures to prove beyond reasonable doubt that at all material times" he was on duty. Finally, he asked in Exh. OSH 4 that "the proviso contained in regulation 52 of the Public Service Commission (Proceedings) Edict No. 1 of 1969 be invoked" in his favour and that the order "or dismissal be revoked." Without waiting for the outcome of his letter of 20th May, 1974, (Exh. OSH4) the appellant commenced these proceedings.
In the course of his judgment the learned Acting Chief Judge of the High Court of Lagos State made the following observation:
"....It seems to me that the provision of Section 52 of the Edict is enacted to cover the type of case in which the officer is absent from his duty and cannot be found in which case his employers have responsibility for acting swiftly; the power conferred here seems to me to be in the nature of an emergency power which dispenses with the requirement for calling for the explanation of the employee especially where he cannot, with diligence be found. The language of the proviso to the section makes it plain that the employee still has an opportunity, at a later stage, to explain the circumstances of his absence and his failure to inform employers of his whereabout. In such event a lesser punishment than dismissal may be imposed ....Counsel urged me to hold that even under Regulation-52 the respondent had a responsibility to call for explanation of the applicant before dismissing him. I do not doubt that the respondents had such a responsibility if the servant eventually turns up and seeks an opportunity to explain the circumstances leading to his absence from duty without leave. None the less I am of the firm view that in the circumstances in which a public servant absents himself without cause from duty and cannot be found, the Public Service Commission has no responsibility to seek him first and inquire into the reasons for his absence. The Commission has the clear duty to dismiss him as it has done in this case but such dismissal would not be irrevocable.... If this had been a straight forward case of dismissal for (other type of) serious misconduct I would have been able to hold that the Public Service Commission had a duty to satisfy the requirements of the principles of natural justice and to have first obtained the explanation of the officer before deciding (to dismiss him)...."
(underlining and brackets supplied by the court)
We pause, however, to observe that in the foregoing passage the use of the words "Section" and "Regulation" with regard to the Public Service Commission Edict although, somewhat indiscriminate, they, in each case, refer to Regulation 52 of that Edict. A number of grounds of appeal were filed and argued before us, in support of this appeal. The sum of the arguments and submissions on behalf of the appellant is this: The exercise of the powers of the Public Service Commission (hereinafter referred to as "the Commission") under Regulation 52 of the Public Service Commission Edict is a quasi-judicial one and that the Commission was not only under a duty to observe the principle of audi alteram partem under the Rules of Natural Justice, it was, also bound, to observe the said principle before dismissing the appellant from the Public Service of the Lagos State; since it failed to do so, the order of certiorari must issue to quash the said order of dismissal of the appellant by the Commission.
We think it is necessary at this stage to set out in detail the relevant law which brought the Commission into existence and, also, the relevant powers of the Commission under the Public Service Commission Edict. The Commission came into existence by virtue of section 4 of the Lagos State (Interim Provisions) Decree 1968, No. 13 of 1968 and the powers of the said Commission are clearly stated in section 5 of the Decree; and both of these read:-
"(4) (1) There shall be a Public Service for Lagos State, which shall consist of a Chairman and not less than two, no more than four other members."
"(5) (1) Power to appoint persons to hold or act in offices in the public service of Lagos State (including power to make appointments or promotion and transfer and to confirm appointments) and to dismiss and exercise disciplinary control over persons holding or acting in such offices shall, subject to Section 6 of this Decree in respect of permanent secretaries, vest in the Public Service Commission of the State..."
Regulations 55 and 58 make detailed provisions for the procedure for the dismissal of public officers on grounds of misconduct alleged against them and these clearly require that not only must the specific charges made against them be brought specifically to their notice and attention, they must also be given a chance of hearing (i.e. to make explanations and also defend themselves against the charges, if they so desire) before they can be dismissed on grounds of such alleged misconduct. Under these provisions aforesaid these officers must be allowed access to any documents containing allegations against them and they have a right to examine witnesses, if any, who give oral testimony against them before any decision to dismiss or penalise them in any way as a result of such allegation of misconduct can be made. Regulation 52, however, makes special provision for allegation of the misconduct of being absent from duty without leave or reasonable cause; and it reads:-
"Without prejudice to the power to institute disciplinary proceedings in respect of any absence from duty without leave or reasonable cause, where a public officer is absent from duty without leave or reasonable cause the disciplinary authority may dismiss him without following the procedure prescribed in regulation 55 or 58.
Provided that if the officer can later satisfy the disciplinary authority that the circumstances of his absence, and of any failure to inform his Department of his whereabouts, do not justify his dismissal, that authority may, without prejudice to the power to institute disciplinary PROCEEDINGS in respect of the absence with a view to lesser punishment than dismissal, REVOKE the DISMISSAL"
(capitals and underlining supplied by this Court).
In Regulation 3 of the Public Service Commission Edict the expression "disciplinary authority" is defined as meaning "the authority in whom power to dismiss and exercise disciplinary control over a public officer is for the time being vested by the provisions of section 5(1) of the Lagos State (Interim Provisions) Decree 1968 or by any delegation of the said powers in accordance with those provisions." There is no doubt that Regulation 52 is a special provision for dealing with public officers in the Lagos State Public Service Commission who absent themselves from duty. While it empowers the Commission with powers to institute disciplinary proceedings under Regulations 55 and 58, in cases of the specific misconduct of absence from duty without leave or reasonable cause (e.g. sudden illness)-as in the case of all other specie of misconduct-it gives the disciplinary authority (which is the Commission), in addition a discretion of dismissing a public officer for being absent from duty without leave or reasonable cause without prior exercise of any disciplinary proceedings under Regulations 55 and 58 provided, however, that such proceedings can always later be instituted at the request of the public officer concerned. We shall later, in this judgment, examine more closely the provisions of this particular regulation and their effect on the submissions which learned Counsel for the appellant has, with considerable candour, urged upon us.
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 cause-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) AC 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 a defence.... The modern 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 Kalada Hard vs. the Military Governor Rivers State and others (1976 11 SC.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. Where, 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 to the audi alteram partem rule before the original decision is made. In the case of Vestry of St James and St. John, Clerkenwell vs. Feary (1890)24 Q.B.D.703, a local statute provided that every house must be provided with a water-closet with certain specified fittings. The Vestry could give notice in writing ordering a house holder to comply with the provision. There was a right of appeal to the London County Council against such an order. An order was served on the respondent requiring him to furnish a proper water-closet for his house; he ignored it. The vestry summoned him for failing to comply with it, but the summons was dismissed by the magistrate. The vestry appealed. A strong court of the Divisional Court of the Queen's Bench Division (Lord Coleridge C.J. and Lord Esher M.R.) before whom it was strenuously argued that the vestry was bound to hear the respondent before making the order rejected the argument (the like of which has been strenuously urged upon us in the instant appeal). Lord Esher M.R. said (at pp 711 and 712):
"Then it is contended that the vestry is a judicial body and that they were bound to hear the respondent in a judicial manner; but there are no words in the statute which entitled us to hold that the vestry is to act as a Court. They may give notice of a hearing, when the party may be heard as Byles J. pointed out in Cooper vs Wandsworth District Board of Works (1863), 14 CB, (N.S) 180; but he goes on to say there is another way in which they can proceed, namely, by giving notice of the order. The vestry must give notice of the order because there is a right of appeal within seven days. The party affected by the order can object to it, or has a right of appeal to the County Council. If the magistrate decided this case on the ground that the vestry were bound to hear the respondent judicially, I am of the opinion that his decision was wrong......."
In the case of Vestry of St. James and St. John Clerkenwell (supra) the court was of the view that the provision for statutory appeal negative the existence of implied duty on the part of the Vestry to first hear the party to be affected by their decision before giving such a decision because in the view of the court the provision for appeal by the party against such a decision, by implication, afforded opportunity for the application of the audi alteram partem rule of the principles of natural justice.
Again, the same view was taken by the Supreme Court of Queensland in the case of the Literature Board of Review vs. H.M.H. Publishing Company Inc., Ex parte H.M.H. Publishing Company Inc. (1964) Queensland Report 26.
The facts and the judgment of the full court in the case illustrate with marked clarity the view we have earlier on expressed (that although by the rule of natural justice it is always expected of administrative bodies and/or tribunals in the exercise of a function by which their decision might affect the rights of individuals to give such individuals a hearing prior to their decision and failure to comply with this principle of natural justice will always lend to such a decision being quashed, this rule of natural justice is subject always to sufficient indication of an intention of the legislature to the contrary) that we think it is desirable to set out in extenso in this judgment the tacts and the essential portions of the judgment in that case. That case deals with the "Objectionable Literature Act of Queensland" (Australia) of 1954, Section 5 whereof defines the term "objectionable" thus:-
"In relation to literature or any part of any literature regard being had to the nature thereof, the persons, classes of persons, any age group to or among whom that literature is or is intended to be distributed or likely to be distributed and the tendency of that literature or part to deprive or corrupt any such person... objectionable for that it...
(i) uduly emphasises matters of sex, horror, crime cruelty or violence; or
(ii) is blasphemous, indecent, obscene, or likely to be injurious to morality, or
(iii) is likely to encourage depravity, public disorder..."
The head note to the report states as follows:-
Pursuant to section 10 of the Act, the Literature Board of Review made an order prohibiting the distribution in Queensland of the periodical "Playboy". This magazine was expensively produced being well printed on good quality paper. It purported to be addressed in the main to intelligent young men of the sophisticated type. It contained fiction, some of a high standard but some having its theme devoted to sexual matters, articles on various topics, and interviews with interesting personalities. There was also high class advertisements... jokes mostly about sex, photography of the undraped female form... and a variety of report and comments on sexual matters.
Held, by the full court that the magazine was "objectionable" within the meaning of that term as defined in the Act in that it unduly emphasized matters of sex, there being a palpable over-presentment of such matters
Held further that the Board's failure to give notice to the publisher of the proceedings before it, and to allow the publisher of the opportunity of being heard PRIOR to the Board making its order, did not amount to a denial of natural justice BECAUSE of the appeal provisions in the Act."
(Capitals and underlining supplied)
In the course of his judgment Mansfield C.J. made the following observations:-
"In the Commissioner of Police vc. Tanos (1958)98 C.L.R. 383 at 395 Dixon C.J. and Webb J. in a joint judgment said: "It is deep-rooted principle of the law that before any one can be punished or prejudiced in his person or property by any judicial or quasi 'judicial proceeding he must be afforded an adequate opportunity of being heard. In Cooper v Wandsworth Board of Works (Supra). Byles J. said that a long course of "authority established that although there are not positive words in a statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature'.... The general principle has been restated in this Court with a citation of authority in Delta Properties Pty Ltd. vs Brisbane City Council (1955)95 C.L.R. 11 at p.18... But the rule is subject to a sufficient indication of an intention of the Legislature to the Contrary. Such an intention is not to be assumed nor is it to be spelled out from indirect references, uncertain references or equivocal considerations. The intention must satisfactorily appear from express words of plain intendment'
"It is therefore, necessary to see whether there is any evidence in the Act evincing an intention that notice to the interested parties is not required prior to the making of the order by the Board.
"During the course of the hearing of this appeal we were referred to a number of authorities and particularly Cooper v The Board of Works of Wandsworth District (Supra); Vestry of St. James and St. John, Clerkenwell v Feary (supra). In my view they establish inter alia the principle that when an order is made which affects the proprietary rights of individuals and no opportunity is given prior to the making of the order to the affected party to show cause why the order should not be made AND THE ORDER IS FINAL, it will be held to be contrary to natural justice.
"If on the other hand, a reasonable opportunity is given to the affected party after the order is made and before the proprietary right is destroyed to appeal against it or to show cause why is should not have been made, the requirements of natural justice will be satisfied. In the instant case the aggrieved party is given the right under S.11 to which I have already referred. On the hearing of such an appeal the court determines whether the literature is objectionable unfettered by the opinion of the Board. I therefore consider that there is, in this case, evidence in the Act itself that it is the intention of the Legislature that notice to the interested parties is not required PRIOR to the making of the order by the Board and that the principles of natural justice are satisfied by the appeal provisions to which I have referred "
(capitals and underlining supplied)
In Ridge v Baldwin (1946) A.C. 40 detailed consideration was given to the dismissal of servants by masters, and in his speech on the subject in the House of Lords, (with which we, respectfully, agree and to which we draw attention) Lord Reid dealt with it under three categories. First, he considered that in "a pure case of master and servant" although a servant had not been given opportunity to be heard prior to the decision to dismiss him, the dismissal was legally effective subject always (if the facts support such a course) to the servant's right to damages for breach of contract. Secondly, it was his view that where a servant or occupant of an office was removable at pleasure he had no right to a prior hearing before dismissal and no remedies therefor. Thirdly, (and this is important with regard to proceedings in hand it was his view that where a servant or occupant of an office was removable only for cause he had an implied right to prior notice and opportunity to be heard see 1946 A C 65-68 per Lord Reid. The sum of the argument and submissions which Mr Gani Fawehinmi has urged upon us with considerable zeal and candour is, indeed, supported by the view expressed in the third category referred to in the speech of Lord Reid in Ridge v Baldwin (supra); but this principle of natural justice enshrined in the audi alteram partem rule is, as we have earlier on stated, subject always to indication of an intention of the Legislature to the contrary. There was considerable argument on both sides (i.e. the appellant and the respondent) as to whether the exercise under
Regulation 52 of the Public Service Commission Edict was or was not a judicial or quasi-judicial one so as to make the decision of the Commission amenable to an order of certiorari. We will shortly examine more closely Regulations 52, 55 and 58 of the Public Service Commission Edict (the details of which we set out earlier on in this judgment). Two important passages, which we consider relevant to these proceedings, occur at p.93 of the third edition of de Smith's Judicial Review of Administrative Action 3rd Edition.
In the first passage the learned author states:
"A non-judicial act, order or decision, on the other hand, is potentially open to attack for any material error of law or fact in either direct or collateral proceedings, and it cannot constitute res judicata." The authority cited for the proposition is a passage in the judgment in the case of R (Wexford C.C.) v Local Government Board (1902)2 IR 349 at 373-374."
In the second passage the learned author states:-
"In addition it is sometimes said that a legislature or administrative act may always be rescinded by the body making it whereas a valid judicial determination cannot, save on very limited grounds." No decided case was cited by author for this proposition although reference was made to a legal historical work of considerable respect and value."
Learned Principal State Counsel, Mr G.A.A.T. Jinadu, on behalf of the respondents relies on the second proposition above in his submission that the respondents' decision in these proceedings is not amenable to an order of certiorari because, as he contends, it was purely an administrative act which is still subject to review. We are, however, of the opinion that the exercise resulting in the order by the respondents in the dismissal of the appellant from the public service of the Lagos State is, indeed, a judicial one, and amenable, normally to an order of certiorari. The actual making of the order or promulgation thereof is an administrative act but the exercise leading to the decision to dismiss the Public Officer definitely effects the rights of the public officer and, consequently, it is a judicial act. In this connection we refer with approval to the statement of Lord O'Brien L.C.J. in the case of R(Wexford C.C.) (supra);
"........I have no hesitation in saying that I have always considered, and still consider, the principle of law to be as stated by the Chief Justice (i.e. May C.J. in the Queen v. Corporation of Dublin-2 L.R. Ir.371) assuming that there is nothing in the statute constituting the particular tribunal or investing it with the particular power which indicates a contrary intention. I have always thought that to erect a tribunal into a "court" or "jurisdiction", so as to make its determinations judicial, the essential element is that it should have power, by its determination within jurisdiction, to impose liability or effect rights. By this I mean that the liability is imposed or the right is affected by the determination only, and not by the fact determined, and so that liability will exist, or the right will be affected, although the determination be wrong in law or in fact. It is otherwise of a ministerial power. If the existence of such a power depend upon a contingency,... his determination does not bind. The happening of a contingency may be questioned in an action brought to try the legality of the act done under the alleged exercise of the power. But where the determination binds, although it is based on an erroneous view of facts or law, then the power authorising it is judicial (provided it is within the limits of its jurisdiction)."
[see Irish Law Reports (1902) L.R. at 373-374]
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 powers to either initiate proceedings under Regulations 55 & 58 of the said Edict in cases where it receives a complaint relating to a public officer who absents himself or herself from duty without leave or reasonable 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 this 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 superiors 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 specific 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 the 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 be acting in a 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 Parte 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 bearing and depending on the quality of his explanations it may go further and institute proceedings (even at that late stage) under the provisions of Regulations 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. Because the order of the Commission, under Regulation 52 aforesaid, for dismissal of a public officer is a judicial act it is always amenable to an order for certiorari. However, where the commission acts under the arm of the said Regulation which empowers it to dismiss the public officer without first giving him the chance of a hearing, it is up to the officer (1) to abide by the decision or (2) to come to court for an order of certiorari. Should he elect to come to court for the prerogative order, it seems to us that, unless and until he has exercised his right under the proviso to the Regulation aforesaid and a decision unfavourable to him has been given by the Commission pursuant to the exercise of its powers under the said proviso, his application is not likely to succeed. This is because if, as in the instant case, he comes to court for the prerogative order without first pursuing to its conclusion an exercise of his right under the proviso to Regulation 52 aforesaid then unless has any other ground for his application (such as lack of jurisdiction) the only ground he is likely to adduce, as indeed he has done in this case, would be failure on the part of the commission to apply the audi alteram partem rule first before reaching the decision in respect of which he seeks the order. But, as already stated, it is clear that in this connection the Commission will be acting within the terms of the statute which gives it a discretion to exercise, or exclude, the application of the said rule at that stage. And a long line of decisions [including Vestry of St James and St John, Clerkenwell (Supra); Exparte H.M.H. Publishing Company Inc. (Supra)] show that in cases where statutory provisions allow it, then by giving a hearing, subsequent to its decision, to the party adversely affected by it, the commission would have complied sufficiently with that rule of natural justice which supervisory courts expect it to apply in all judicial exercise under Regulations 52 aforesaid. The evidence in these proceedings establish that the appellant has already exercised his right under the proviso to the said Regulation (i.e. Regulation 52 of the public Service Commission's Edict) and the matter is still under the control of the disciplinary authority (i.e. the Commission), which is yet to give a decision.
For the foregoing reasons we find no merit in this appeal which must fail. Accordingly, this appeal fails and it is hereby dismissed with costs payable by the appellant to the respondent fixed at
(Sgd.) SIR UDO UDOMA,
JUSTICE, SUPREME COURT.
(Sgd.) AYO GABRIEL IRIKEFE,
JUSTICE, SUPREME COURT.
(Sgd.) CHUKWUNWEIKE IDIGBE,
JUSTICE, SUPREME COURT.