CORAM
PARTIES
HEAD OF FEDERAL MILITARY GOVERNMENT
APPELLANTS
THE PUBLIC SERVICE COMMISSION OF MID-WEST STATE & ANOR
RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
This appeal is sequel to proceedings instituted in the High Court Benin City, Mid-Western State of Nigeria, wherein the present Respondent, Maclean Okoro Kubeinje, who was at all material times a Chief Magistrate in the employment of the Public Service of the Mid-Western State of Nigeria (as Applicant), sought and obtained an Order of Certiorari against the Public Service Commission of the Mid-Western State. By motion paper dated the 12th October, 1971, the Applicant, filed a motion ex parte for: “an Order of Certiorari to remove into this Honourable Court for the purpose of being quashed the proceedings before the Public Service Commission of the Mid- Western State as contained and described in letter No. PC.80 11203 of 14th April 1971, referred to and marked as Exhibit MOK.20 in the affidavit filed by the Applicant in support of this application whereby the said Public Service Commission adjudged that the Applicant was not a fit and proper person to continue in his office as Chief Magistrate in the Public Service of the Mid-Western State and perform and/or discharge the duties and functions pertaining to the said office AND directing that the Applicant should consider himself summarily removed from his post as Chief Magistrate in the Public Service of the Mid-Western State as from 16th April, 1971, unless the Applicant agreed to accept within 2 days from 14th April, 1971, an offer of transfer from the Judicial Department to the Ministry of Justice in the Public Service of the Mid-Western State as Principal State Counsel. In a reserved judgment, the learned trial judge acceded to the Applicant’s request and made the Order of Certiorari as sought. Dissatisfied with the grant of the order by the lower court, the Respondents have appealed to this court.
HELD
Appeal Dismissed
ISSUES
Not Available
RATIONES DECIDENDI
ORDER OF CERTIORARI- PROCEDURE GOVERNING AN APPLICATION FOR AN ORDER OF CERTIORARI
“The procedure governing an application for an Order of Certiorari to quash proceedings is set out in Order 53 Rule 6 of the English Rules of the Supreme Court (1973 Annual Practice page 779) and the Rule provides as follows: “6(1) In the case of an application for an Order of Certiorari to remove any proceedings for the purpose of their being quashed, the applicant may not question the validity of any order, warrant, commitment, conviction, inquisition or record unless before the hearing of the motion or summons he has lodged a copy thereof verified by affidavit in the Crown Office, or accounts for his failure to do so to the satisfaction of the Court or judge hearing the motion or summons. (2) Where an Order of Certiorari is made in any such case the order shall direct that the proceedings shall be quashed forthwith on their removal into the Queen’s Bench Division.” Evidently, the Rule covers the quashing of proceedings and enjoins upon a party seeking to question the validity of any order, warrant, commitment, conviction, inquisition or record the duty of ensuring that a copy of such was lodged in court before the hearing of the application, or an account, a satisfactory one at that, be available for his failure so to file such a copy at the hearing.” –
RECORD OF PROCEEDINGS – ESSENCE OF RECORD OF PROCEEDINGS
“The record which has always been prescribed consists of all the documents which are officially kept by the inferior tribunal concerned. See per Denning, L.J. in R. v. Northumberland Compensation Appeal Tribunal ex parte Shaw (1952) 1 All E.R. 122 at pp.130, 131. But whether or not the record was complete or defective has always been decided by the Court of King’s Bench which either directed the inferior court to complete the record by bringing up the King’s Bench such portions of the record as were wanting or simply quashed the record on the material available before it on’ the basis that it was the duty of the inferior court or tribunal to complete hyracoid of the King’s Bench if such tribunal thought that the other portions of the record would justify its action. See The King v. Apsley (1671) 82 E.R 550; also Regina v. Bolton (1841) 113, E.R. 1054. This therefore is the position at law. The Courts of King’s Bench always required the document or information which initiated the proceedings (so as to know the actual charge or complaint concerned-see Exhibit MOK.18) and the adjudication of the inferior tribunal or statutory body (so as to know the nature of the wrong-doing or deficiency-see Exhibit MOK.20) See the Anonymous (1697) 91 E.R. 412; also.R.v. Northumberland Compensation Appeal Tribunal, supra, at pp. 131-132. In the case of Inter the. Inhabitants of the Parishes of South Cadbury and Braddon. Somerset (Inhabitants) (1710) 91 E.R.515, there was an objection to an Order of Justices to the effect that they did not indicate whether they had quashed an order for a formal or material defect but the court observed rejecting the objection as follows: “The justices are not bound to express the reason of their judgement in the judgement, no more than other Courts; and if it was otherwise held in the late Chief Justice’s time, it past without due consideration.” It is clear therefore that, apart from setting out the document which initiates the proceedings and the adjudication it was not necessary to set out the reasons or the evidence for the adjudication, and where the inferior tribunal or statutory body of its own motion supplied the reasons and those reasons were found to be wrong, certiorari will lie all the same.” –
ORDER OF CERTIORARI – PURPOSE OF AN ORDER OF CERTIORARI
“It is generally and usually stated that certiorari will lie to correct excess of jurisdiction or want of it in the execution of its duties by inferior courts of record or statutory bodies or tribunals which exercise judicial or quasi-judicial functions. This description of the scope of certiorari certainly obscures, as it has always done, the amplitude of its utility.” –
ORDER OF CERTIORARI – INSTANCES WHERE AN ORDER OF CERTIORARI WILL BE ISSUED
“We think it necessary to state the correct position at law to be that where it is established before the High Court that a statutory body (or maybe an inferior court) with limited powers has abused that power and that such abuse does and continues to affect prejudicially the rights of a citizen, certiorari will be issued at the instance of that citizen. Such abuse may take the form of non-compliance with rule or rules of procedure prescribed for that body; it may be exemplified in the denial of the right to be heard in one’s defence; it may consist of irregularities which are tantamount to a denial or breach of the rules of natural justice; indeed, it may take the form of an assumption of jurisdiction to perform an act unauthorised by law or a refusal of jurisdiction where it should be exercised. The list is not exhaustive but those are the cases in which certiorari has always been issued by the Courts of King’s Bench. Thus, certiorari has been issued to quash arrest warrants, wittness summonses or even official medical certificates which were irregularly issued. See R. v. Thompson(1909) 2 K.B. 614; R. v. Lewes Justices ex parte Home Secretary (1972) 3 W.L.R 279. In R. v. Boycott ex parte Keasley (1939) 2 K.B. 651, Lord Hewart, CJ., delivering the judgment of the Court of King’s Bench concerning the application to quash by certiorari a medical certificate irregularly issued in respect of a young man, observed at p. 659 of the Report thus: “In my opinion, on the facts of this case, this certificate of October 5, 1938, created in the way in which we know that it was created, purposed to be and to look like the decision of a quasi-judicial authority, and I think that similar considerations apply to the two documents, one also dated October 5, and the other dated October 10, which it is contended (and I think rightly contended) ought to be regarded as pan and parcel of one and the same transaction. I think that these three documents do come within the range of the jurisdiction of this Court in certiorari.” –
CERTIORARI –CONDITION FOR THE GRANT OF CERTIORARI
“Where the transgression of the statutory body or tribunal is a denial of the right to be heard, as indeed the learned trial judge found and held in the present case, the courts have always unhesitatingly granted certiorari. In Kanda v. Government of the Federation of Malaya (1962) A.C. 322 at p. 337, the Privy Council stated the principle of the right to be heard as follows: “If the right to be heard is to be a real right which is worth anything, it must carry with it a 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.” See also Regina v. Liverpool Corporation ex parte Liverpool Taxi Fleet Operators Association & Anor. (1972) 2 Q.B. 299; also Board of Education v.Rice 1911) A.C. 179, especially per Lord Loreburn at pp. 182 et seqq. It should be noted however that the superior courts do not question the performers of administrative action eo ipso and it is not sufficient in order to ground an Order of Certiorari to complain that the statutory body or tribunal did not conduct an investigation in the way that a court of law would do it; in other words, the person applying for the Order of Certiorari must show that the body concerned has in one way or the other failed to act judiciously where it should do so”. –
CASES CITED
STATUTES REFERRED TO
English Rules of the Supreme Court (1973 Annual Practice page 779)|Public Service Regulations|