CIVIL SERVICE COMMISSION IMO STATE & ANOR. V. GODWIN ...

CIVIL SERVICE COMMISSION IMO STATE & ANOR.
V. GODWIN ONYEMA ANUFOROM
CITATION: (2006) LPELR-11936(CA)
In The Court of Appeal
(Owerri Judicial Division)
On Tuesday, the 12th day of December, 2006
Suit No: CA/PH/191/2003
Before Their Lordships
MUSA DATTIJO MUHAMMAD, Justice, Court of Appeal
MONICA BOLNA' AN DONGBAN
-MENSEM,
Justice, Court of Appeal
IBRAHM MOHAMMED MUSA
SAULAWA,
Justice, Court of Appeal
Between
I. CIVIL SERVICE
COMMISSION IMO
STATE
2. SECRETARY TO THE
GOVERNOR IMO STATE
Appellants
And
GODWIN ONYEMA
ANUFOROM Respondent
1

RATIO DECIDENDI
1 APPEAL - FILING/ENTERING APPEAL:
Whether an appeal will be deemed to have
been brought when the notice of appeal has
been filed in the registry of the trial court
"It is trite that by virtue of order 3 Rule 5 of
the court of Appeal Rule, 2002, an appeal
shall be deemed to have been duly brought
when the notice of appeal has been filed in
the Registry of the court below. For the
avoidance of doubt, a distinction ought to be
drawn between bringing or filing an appeal
and entering an appeal. As alluded to above,
an appeal can only be brought or filed in the
court below; order 3 Rule 5 of the court of
Appeal Rules (supra). Whereas, an appeal
shall be deemed to have been entered in the
court when the relevant record of proceedings
in the lower court has been duly transmitted
to and received in the lower court has been
duly transmitted to and received in the
Registry of this court. See order 1 Rule 21 (1)
of the court of Appeal Rules (supra); OYO
STATE INEC V. AG OYO STATE (2006) ALL
FWLR (part 334) 2017 paragraphs B-C." Per
SAULAWA J.C.A (P 17,Paras A-D) - read in
context
2

2 PRACTICE AND PROCEDURE - MISTAKE
OF COUNSEL: Whether the sins of the
counsel can be visited on the litigant
"However,most cherishingly, it is also a trite
golden principle of law that the sin of counsel
and nay court Registrar (as in the instant
case) ought not be visited on the litigant,
most particularly having due regard to the
glaring fact that the appellants were not
shown by the Respondent to have been
personally guilty of any negligence. See
LONG-JOHN V. BLAKK (supra) (1998) 59
LRCN 3864 at 3893 paragraphs H – I." Per
SAULAWA J.C.A (Pp 17-18,Paras G-A) - read
in context
3 ADMINISTRATIVE LAW - ORDER OF
CERTIORARI OR PROHIBITION: Whether
an order of certiorari or prohibition will lie
where anybody or persons having legal
authority to act fairly and judicially but have
acted in excess or contrary to their legal
authority
"It is trite principle of law that an
administrative body or authority in
ascertaining facts has a duty to act judicially
notwithstanding that the proceedings thereof
have none of the procedures or formalities of
and are not conducted in accordance with the
practice and procedure of court of law. As
3

authoritatively held by the Supreme Court:
"The modern concept which however,
commends itself to us is that the duty placed
on such a body is to act fair" per FATAYI
WILLIAMS, JSC (supra) at page 633
paragraphs 40-45. Most undoubtedly, its also
trite law that wherever any body or persons
having legal authority to determine questions
affecting the rights (and obligations) of
subjects, and having the duty to act judicially
or fairly, act in excess or contrary to their
legal authority, an order of certiorari or
prohibition would lie. It does not matter
whether such "body of persons having legal
authority to determine question affecting the
rights (and obligations) of subjects" is a
judicial" or "administrative" tribunal.
According to the Supreme court, in HART'S
case (supra):- It is the same with individual
officers (as in the instant case) discharging
public functions (see R.V. BOYCOTT & ORS
EXPARTE KEASLEY (1939) 2 K.B. 651), and to
ministers of the crown such as in the case of
the King v. Minister of Health Exparte Yatte
(1930) 2 K.B. 98. (Per Bracket added).
FATAYI WILLIAMS JSC (as he then was) at
634 paragraphs 10 15; see also R. V.
ELECTRICITY COMMISSIONERS (1924) 1 K.B.
R. V. ELECTRICITY COMMISSIONERS (1924) 1
K.B.171 at 204-205" Per SAULAWA J.C.A (Pp
23-24,Paras A-A) - read in context
4

4 CONSTITUTIONAL LAW - RIGHT TO FAIR
HEARING: Whether the word "person" as
stated in section 36(1) of 1999 constitution
denotes a living person as well as a juristic
person
"Section 36 (1) of the 1999 constitution ,
(supra) which cherishingly provides inter alia
that: In the determination of his civil rights
and obligations including any question or
determination by or against any government,
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. It may as well be posited
that the word "person" as couched in the
above section 361 (1) denotes a living person
as well as juristic person; thus applicable to
the Appellants as much as the respondent. It
is trite that the well cherished principle of fair
hearing is not merely a technical doctrine. It
is rather one of substance.Undoubtedly, it is
not the question of whether a party is entitled
to be heard before a decision is reached; but
rather whether the had, as a matter of act,
been accorded an opportunity to be heard.
See BAMAIYI V. THE STATE (21001) FWLR
(part 46) 956 at 974 paragraphs D - E per
WAIFO JSC, thus: "Once an appellate court
comes to the conclusion that the party was
5

entitled to be heard before, a decision was
reached but was not given opportunity of
hearing the order or judgment thus entered is
bound to be set aside." See also KOTOYE V.
CBN (1989) NWLR (part 98) 419; ATANO V.
AG. BENDEL STATE (1988) 2 NWLR (part 75)
201; NTUKDEM V. OKO (1986) 5 NWLR (part
45) 909." Per SAULAWA J.C.A (Pp 18-19
Paras B-B) - read in context
IBRAHIM MOHAMMED MUSA SAULAWA J.C.A
(Delivering the Leading Judgment): This is an
appeal against the decision of the High Court of
Imo State holden at Owerri, dated 08/312001,
Coram B. A. NJEMANZE, J; granting the
Respondent's application for an order of certiorari,
injunctive reliefs and consequential orders against
the Appellants.
The Respondent was at all material times a civil
servant of the Imo State Government. He was first
employed in the year 1962 as a messenger: in the
civil service of the defunct Eastern Nigerian
Government and later East Central State.
In September, 1975, he gained an admission into
the University bf Nsukka for an under graduate
course. He applied for and was granted a study
leave without pay for a period of four years.
Hegraduated with a BSC (Hons.) in Political Science
in1979.
6

He later in l980 applied for and was given a fresh
appointment on probation by the 1st Appellant. He
served as Secretary of the Imo State Executive
Council from 01/4/93 until he was purportedly
retired in 1999 vide Exhibit AG8 which is to the
effect that:
"Mr. G.O. Anuforom (Assistant Chief Administrative
Officer) Exco Secretariat office of the secretary to
the state Government Owerri RETIREMENT FROM
THE IMO STATE GOVERNMENT SERVICE.
I am directed to convey the civil service
commission's approval for you to retire from the
Civil service with retrospective effect from 7th June
1997 after 35 years of service. This is on grounds
of public interest in accordance with section 3 (i)
(g) of the pensions Act of 1979.
2. Since the overstay was culpable on you, all
salaries and allowances paid to you after 6th June,
1997 should be deducted en bloc from your
gratuity.
3. In view of the above, you should surrender your
duty and all items of Administrative officer in the
Exco secretariat.
4. You are to submit your retirement/pension
papers for necessary actions.
M.C. Ohale
For: Secretary to the State Government.
See page 20 of the Record. It is evident from the
Record at page 19 that the Respondent had earlier
in June, 1997 been issued with a notice of
retirement dated 27/6/97 vide Exhibit AG6 which
inter alia reads thus:
7

NOTICE ON RETIREMENT
I am directed to inform you that by the records in
this office, you will retire from Imo State civil
Service on completion of 35 meritorious services
with effect from 6th December 1997. Under this
consideration, you are expected to tender 6 month
mandatory notice to enable this office process your
papers promptly.
I am, Sir
Your obedient servant
A.C. Oguama
For: Secretary to the State Government.
In response to Exhibit AG8, the Respondent wrote a
petition dated 21/9/99 (Exhibit A.G 9) to the
Military Governor of Imo State complaining against
what he termed "WRONGFUL RETIREMENT NFROM
THE SERVICE OF IMO STATE GOVERNMENT".
See pages 22 - 30 of the record to the effect inter
alia that:
8. My Summary
8.1 I have not served 35 years. I left for further
studies in September 1975.When I came back in
June 1980 I was not reabsorbed and I was not
promoted by my former office, Ministry of
Education, on the ground that my additional
qualification did not grantee automatic promotion
and in view of the fact that I ceased from being
listed in the normal roll since 1975 and that I was
not provided for in the Estimate.
8.2 As a result of 8.1.1 took up a fresh
appointment with the civil service commission
based on my application for fresh appointment on
8

the form designated for fresh appointees by the
commission.
8.3 Following my success at the public competitive
examination I was offered an appointment with
effect from 23rd December, 198A, six month after
my return from the University, and with out
employment I was placed on probationary
conditions prior to my confirmation and
advancement to G.1. 09.
8.4 When the policy of retirement after 35 years of
services was adopted, I was erroneously grouped
with those who had done 35 years from the first
day of their appointment, without break and those
who condoned their previous services. I did not
condone my leaving the service for further studies.
Thus having been aggrieved by the retirement
thereof from service of the, Imo State Government,
the Respondent filed an application exparte (dated
07/10/2000) on 12/l0/2000 in the trial court
praying for leave to apply for the following relief:
1. An order of certiorari removing to this
Honourable court for the purpose of being quashed
the letter SGI/A/P.273/552 dated 16th September,
written by the 2nd Respondent to the applicant by
which the applicant was purportedly retired from
the civil service of Imo State.
An order of certiorari removing to this Honourable
court for the purpose of being quashed any
purported retirement or approval of the retirement
of the applicant from the civil service of Imo State
b1, the Ist Respondent as contained in letter by the
2nd Respondent to the Applicant viz ref.
9

SGI/A/P.275/552.
An order of court prohibiting the 1st and 2nd
Respondents jointly and severally, or through any
other officers of the government of Imo State, from
retiring or purporting to retire the applicant from
the service of Imo State on the ground of servicefor
35 years.
4. An order on the Respondents to restore the
applicant to his office in the civil service Imo State
and to pay to the applicant all emoluments due and
the to applicant from September 1999 until the
applicants restoration to his office in the civil
service of Imo State.
5. An order of court that in compiling the applicants
entitlement under relief No 4 above, account shall
be taken of the applicant's promotion which was
due 1998 and his 1999 commend promotion.
The exparte application in question was
predicatedon the following grounds:-GROUNDS
UPON WHICH RELIEFS ARE SOUGHT
1. The applicant was retired on grounds of public
interest that is for cause under section 3 (i) (d of
the pensions Act 1990 without being given
opportunity for fair hearing contrary to the rules of
natural justice: and section 36 (1) of the
1999constitution of the Federal Republic of
Nigeria.2. There is no existing law requiring the
retirementof any civil servant on the ground of
service for a
period of 35 years.
3. The applicant has not attained the age of 60
years as provided for mandatory retirement under
the pension Act 1990 applicable
10
to Imo State.

See pages 2 -5 of the Record.
It's instructive that on 14/11/2000 the said exparte
application was moved by the applicant's counsel
and accordingly granted by the trial court thus:
RULING,
The application is granted. Leave is hereby granted
to the Applicant to apply for an order of certiorari.
The Applicant shall enter into a bond in the sum of
N100, 000 securities to prosecute the case.
It is hereby ordered that all actions relating to this
matter be stayed until the final determination of
this case. The Respondents in particular are hereby
restrained from doing anything whatsoever which
may touch or affect this case until the final
determination of the case. The substantive motion
is fixed for 28/ 1/2000 for hearing.
See page 34 of the Record.
At the conclusion of the hearing of the submission
of the parties learned counsel upon the substantive
motion inquestion, the learned trial judge delivered
the ruling thereof on 08/3/2001 to the effect, inter
alia, that -
"In the circumstance the application succeeds. I
hereby order that an order of certiorari be issued
and it is hereby issued to quash the document
Exhibit AG8 annexed to Exhibit "8" and its
contents, and Exhibit AG 6 an annexed to Exhibit
"B" and its contents.
I therefore make the following orders.
l. The letter Reference No SGl/A/P.273/552 of
16/9/99 and its contents, that is, Exhibit AG8 of
Exhibit "B" are hereby quashed.
11

2. The letter Reference No SGI/P.275/552 of
27/6/97 and its content, that is Exhibit AG6 of
Exhibit 'B' are hereby quashed.
3. the Applicant is to return to his employment as a
civil servant as it letters reference Nos
SG1/A/P.275/552 of 16/9/99 that is Exhibit AGs of
Exhibit 'B' and SGI/A/P.275/552 of 27/6/97 that it:
Exhibit AG6 of Exhibit 'B' never existed.
4. The Applicant is entitled to be paid all his
salaries, allowances and emoluments due to him
from September, 1999 when Exhibit AG I of Exhibit
'B' was written and it purportedly took effect,
Reliefs Nos. 3 and 5 in the motion paper for the
prohibition of the Respondents from retiring
the-applicant from service on the ground of service
for 35 years and also for the taking in to account of
the applicants promotion in 1998 and 1999
command in computing his salaries, allowances and
emoluments respectively are refused.
See pages 69 and 70 of the Record.
Being dissatisfied with the aforesaid ruling and
consequential orders of the Trial court, the
Appellants have filed this appeal which is predicted
on three grounds. It is instructive that parties have
filed, exchanged and accordingly adopted their
respective Briefs of Argument.
In particular Appellants Brief (dated 27/6/06) was
filed on 28/6/06. Three issues have been
formulated therein, to wit:
(a) Whether the trial court was right in holding that
this is a proper case for order of certiorari and that
the letters -Exhibits AG 8 and AG 6 of Exhibit B are
12

hereby quashed:
(b) Whether the court was right to suo motu extend
the life of an application which was brought out of
time with out any application for extension of time?
(c) Whether the trial court was right in holding that
the Respondent, who had been retired on grounds
of public interest under the pension Act, be
restored to his office and for all his emolument to
be paid.
On his own part, the Respondent has in the Brief
thereof (dated l4/7/06) filed on 18/7/06, inter alia,
raised a preliminary objection challenging the
competence of the appeal on the ground that it
"was not brought within time and is an abuse of the
process of this Honourable court".
The Respondent has also identified 3 issues therein
to wit:
"(a) whether the trial court was not right in holding
that the certiorari was applicable in his case.
(b) Whether the trial court was not right in
regularizing the application before it.
(c) Whether the order to pay Respondent's unpaid
emoluments was not proper.
In response to the Respondent's brief, the Applicant
filed a Reply Brief (dated 28/7/06) on 10/8/06. I
have deemed it expedient to first deal with the
issue of preliminary objection raised by the
Respondent in the Brief thereof and replied thereto
in the Appellant Reply Brief in question.
As it were, the argument of the learned senior
counsel on the preliminary objection is predicated
on the grounds that:
13

The purported appeal which is copied at pages
51-56 bears neither a date upon which it was
signed nor a date upon which it was filed.
...the record of appeal was only signed on
15/5/2003 and the appeal number is CA/PH/191
/2003.
Without more, his Honourable court is with respect,
not in a position to presume that the notice of
appeal came in to existence earlier than 2003 since
appeal number is assigned upon transmission of the
Notice of Appeal from the High Court to the Court
of Appeal.
Appeal from a final decision of the High court lies to
the court of Appeal within ninety days of delivery of
the decision. In the absence of any date reasonable
conclusion is that date of filing is unknown.
The only reference from available facts is that the
Notice of Appeal could not have come in to
existence prior to 2003,for a decision delivered on
8th March 2001 an appeal showing only a 2003
date on the face of the record of appeal with a
2003 appeal number, is out of time and
incompetent and ought to be struck out. This
Honourable court is urged to strike out the
purported appeal.
2. REPLY TO THE PRELIMINARY OBJECTION
2.01 The Appellants humbly submit that the Appeal
filed in this court is competent for the following
reasons:
(a) Judgment was delivered in this suit in the lower
court on 8th March 2001, the Appellant filed their
Notice of Appeal in the court below within time the
14

counsel who prepared the Notice did not include
any date and the court official who assessed it did
not insert the date of filing (page 56 of the Record).
The Notice of Appeal however, was exhibited in the
motion for stay of Execution filed in the lower court
on 22no March, 2001. This is at pages 71 -75 of
the records. There is therefore a presumption that
the Notice of Appeal was filed before or on 22nd
March, 2001.
(b) The date the record of appeal was signed and
the appeal numbers (stated in paragraph 2.01 of
Respondents Brief) with humility can not be used to
determine when the Notice of Appeal was filed.
(c)The summons to parties by Registrar to settle
Record and the settlement of Record are at pages
76 and 77 of the record.
(d) It is trite that appeal is deemed to have been
brought when the Notice of Appeal has been filed in
the Registry of the court below; order 3 Rule 5,
Court of Appeal Rules.
(e) It is the duty of the Registrar of the court below
under order 3 Rule 8, court of Appeal Rules, to
enclose on the Notice of Appeal the fees, receipt
number and the date of payment and to transmit
the record of appeal to the court of Appeal.
(f) It is the Registrar of the court that enters the
appeal in the cause list order 3 Rule I3 (2). The
Honourable court is most humbly urged to hold that
the Notice of Appeal was filed on 22nd March 2001.
We most humbly urge the court not to punish the
Appellants for the mistake of the court registry or
the carelessness, negligence or in advertence of
15

counsel. AG FEDERATION V. AJAYI (2002) 12
NWLR (part 682) 809; LONG-JOHN V. BLACK
(1998) LRCN 3854, at 3893 (i). The Appellants
have not been shown to have been guilty of any
negligence.
It is humbly submitted that the appeal was brought
within time; it is competent and not an abuse of
the process of this Honourable Court.
I have accorded an ample regard upon the
submissions of the two learned counsel and
vis-a-vis, he record of proceedings of the trial
court. There is no doubt that the Notice of Appeal
contained in pages 51 - 56 of the Record is neither
dated nor carries the date on which it was
supposedly filed in the lower courts Registry. There
is, however a sufficient proof to show that it was
received and fees paid therefore duly assessed at a
total of N70.00 by the Registrar of the court below,
Thus, as admitted by the learned Assistant Director
the omission to insert the dates was entirely the
fault of the counsel that drafted the Notice of
Appeal and the Registrar of the court below that
assessed and processes same. As rightly alluded to
by the learned Assistant Director the copies of the
said Notice of Appeal had earlier been exhibited in
the Motion for stay of execution which was filed in
the lower court on 22/3/2001.See pages 71-75 of
the Record. Thus, this lends credence to a
presumption that the Notice or Appeal was filed on
or before the said 22/3/2001. The intentions of the
learned senior Advocate that the said Notice of
Appeal could not have come into existence earlier
16

than 2003 is, with due respect no doubt fallacious.
It is trite that by virtue of order 3 Rule 5 of the
court of Appeal Rule, 2002, an appeal shall be
deemed to have been duly brought when the notice
of appeal has been filed in the Registry of the court
below. For the avoidance of doubt, a distinction
ought to be drawn between bringing or filing an
appeal and entering an appeal. As alluded to above,
an appeal can only be brought or filed in the court
below; order 3 Rule 5 of the court of Appeal Rules
(supra). Whereas, an appeal shall be deemed to
have been entered in the court when the relevant
record of proceedings in the lower court has been
duly transmitted to and received in the lower court
has been duly transmitted to and received in the
Registry of this court. See order 1 Rule 21 (1) of
the court of Appeal Rules (supra); OYO STATE INEC
V. AG OYO STATE (2006) ALL FWLR (part 334)
2017 paragraphs B-C.
It is rather obvious that the omission regarding the
dates on inquestion on the face of the Notice of
Appeal was attributable to the negligence of both
the Appellants counsel and the lower courts
Registry. I am not unaware of the firm stand of this
court and nay the Supreme Court that "Rules of
court are meant to be complied with". See
SOLANKE v. SOMEFUN (1974) JSC 141 at 141;
NNEJI V. CHUKWU (1988) 3 NWLR (part 81)184;
NDUKA V. APPIO (1993) 5 NWLR (part 292) 201.
However,most cherishingly, it is also a trite golden
principle of law that the sin of counsel and nay
court Registrar (as in the instant case) ought not
17

e visited on the litigant, most particularly having
due regard to the glaring fact that the appellants
were not shown by the Respondent to have been
personally guilty of any negligence. See
LONG-JOHN V. BLAKK (supra) (1998) 59 LRCN
3864 at 3893 paragraphs H - I.
To hold otherwise would, in my opinion amount to
breaching the right to fair hearing accorded the
Appellant under Section 36 (1) of the 1999
constitution , (supra) which cherishingly provides
inter alia that:
In the determination of his civil rights and
obligations including any question or determination
by or against any government, 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.
It may as well be posited that the word "person" as
couched in the above section 361 (1) denotes a
living person as well as juristic person; thus
applicable to the Appellants as much as the
respondent. It is trite that the well cherished
principle of fair hearing is not merely a technical
doctrine. It is rather one of substance.Undoubtedly,
it is not the question of whether a party is entitled
to be heard before a decision is reached; but rather
whether the had, as a matter of act, been accorded
an opportunity to be heard. See BAMAIYI V. THE
STATE (21001) FWLR (part 46) 956 at 974
paragraphs D - E per WAIFO JSC, thus:
"Once an appellate court comes to the conclusion
18

that the party was entitled to be heard before, a
decision was reached but was not given opportunity
of hearing the order or judgment thus entered is
bound to be set aside."
See also KOTOYE V. CBN (1989) NWLR (part 98)
419; ATANO V. AG. BENDEL STATE (1988) 2 NWLR
(part 75) 201; NTUKDEM V. OKO (1986) 5 NWLR
(part 45) 909. Thus, in the light of the foregoing
postulations. I have no hesitation whatsoever in h
preliminary objection is unmeritorious and it's
accordingly hereby discountenanced.
Having contrasted the 3 issue formulated by the
Appellants Brief with those of the Respondents, I
have had very little, in any, difficulty in
appreciating that they are not at all at cross
purposes. I have thus deemed it appropriate to
adopt 3 issues formulated by the Appellants for the
purpose of determining this appeal; after all it's
their own appeal. See GUDA V. KITTA (1991) 12
NWLR (Part 629) 21.
ISSUE NO 1:
"Whether the Trial Court was right in holding that
this is a proper case for order of certiorari and that
the letters Exhibit AG8 and AG6 of Exhibit B are
hereby quashed"
It is said that this issue covers ground one of the
Grounds of Appeal.
Reference was made by the learned Appellants
counsel to sections 207 and 318 of the
1gggconstitution (supra) conferring delegatory
powers to the 1st Appellant and defining the term
19

"Civil service of the state" respectively' That' the
trial judge was wrong in holding that certiorari lies
to quash Exhibit AG8 annexed to Exhibit 'B' and its
contents and Exhibit AG6 annexed thereto; see
pages 19 and 21 of the Record.
It's contended that in making Exhibits AG8 and
AG6, the 2nd Appellant was not under any duty to
act judicially. See ARZIKA V. GOVERNOR OF
NORTHERN REGION (1961-) ALL NLR (part 1- iv)
379.That, no grounds were established by
Respondent's counsel to warrant the granting of an
order of certiorari, which allegedly does not even
apply in the instant case. Reference was made to
STATE V. THE PRESIDENT GRADE 'A' CUSTOMARY
COURT OYO EXPARTE ALIMOTU ATOKE (1967)
NMLR 269 CIVIL SFRVICE PROCEDURE IN NIGERIA,
by FIDELIS NWADIALO, 2nd Edition, at page 1056
regarding grounds essential for the grant of order
of certiorari.
Counsel submitted that in an application for
certiorari, it is the legality, not the correctness of
the action that is looked at. See GOVERNOR OYO
STATE & ORS v. FOLAYAN & ORS (1995) 8NWLR
(part 413) 292 ar322- 323 paragraphs H - B. That
the trial judge was wrong in holding that Exhibit
AG8 did not emanate from the 1st Appellant. See
section 207, 1999 constitution which empowers the
1st appellant to any officer or body in Government.
See also section 133 (a) and 134 (1) of the
Federation 1990.
The court is thus urged to allow the appeal on this
ground.
20

On the other hand, the submission of the learned
senior counsel on issue No 1 is inter alia, to the
effect that its clear that the Appellants are
disputing the competence of the trial court to grant
the relief of certiorari in a circumstance of an
administrative act and not the propriety of the
order itself. According to the learned senior
counsel:
The notion of certiorari being limited to judicial or
quasi judicial acts is now an absolute legal concept.
This is because since 1976 the supreme court of
Nigeria has through the case of A.K HART V.
MILITARY GOVERNOR of rivers state (1976) 11sc
211 imported in to Nigeria law the modern concept
of the applicability of certiorari to non judicial act.
It was thus contended that both the 1st and 2nd
Appellants are subject to an order of certiorari; asit
can not be argued that both do not need to actfairly
in deciding whether or not the Respondent
ought to be retired. It was contended further that
HARTS case (supra) is apposite to the retired "in
the public interest' of the state.
Again, it was argued that Exhibits AG6 and AG8
emanated from the 2nd Appellant whose office is
provided for under section 208 (2) (a) of the 1999
constitution (supra): that it's clear from the
provision of the constitution that the 2nd Appellant
is excluded from the category of offers to whom the
1st Appellant could delegate its functions to appoint
in to or dismiss from or exercise disciplinary control
over persons employed in the civil service of a
state. That, there is even no evidence on record
21

that the 1st Appellant did in fact delegate its
function to the 2nd Appellant. That, reference to
Exhibit G8 as approval by the 1st Appellant is no
evidence of authorization of 2nd to do the act since
the act would logically have taken place before an
approval would arise. Further references were
made in that regard to WILSON v. AG BENDEL
STATE (1985) 2 SC 191 at 192; KATTA V. CEN
(1991) 9 NWLR (part 214) 126 at 146 B-E
It is urged that the learned trial judge was right
when he held that the 2nd Appellant had no
competence to retire the Respondent. The court is
thus urged to resolve issue No 1 in the affirmative,
dismissed ground one of the grounds of appeal and
the appeal itself.
The Appellants in the Reply Brief thereof are
however of the view that the act of the 2nd
Appellant was purely administrative and that
HART'S case (supra) relied upon by the learned
senior counsel for the Respondent is not applicable
to the instant case. That in HART'S case (supra),
the Appellant was indicted for various allegations
by the civil service commission which reported and
recommended disciplinary action against him to the
military Governor. The Governor in turn approved
the recommendations with some modification which
he lacked the constitutional power to do.
Contrariwise, its contended that in the instant case
there is no disciplinary under one in Exhibits AG6
and AG8: that the Respondent was retired merely
on grounds of public interest under the pensions
Act; that the 2nd Appellant was delegated by the
22

1st Appellant to communicate the decision thereof
to the Respondent in accordance with section 207
of the 1999 constitution.
It is trite principle of law that an administrative
body or authority in ascertaining facts has a duty to
act judicially notwithstanding that the proceedings
thereof have none of the procedures or formalities
of and are not conducted in accordance with the
practice and procedure of court of law. As
authoritatively held by the Supreme Court:
"The modern concept which however, commends
itself to us is that the duty placed on such a body is
to act fair" per FATAYI WILLIAMS, JSC (supra) at
page 633 paragraphs 40-45.
Most undoubtedly, its also trite law that wherever
any body or persons having legal authority to
determine questions affecting the rights (and
obligations) of subjects, and having the duty to act
judicially or fairly, act in excess or contrary to their
legal authority, an order of certiorari or prohibition
would lie. It does not matter whether such "body of
persons having legal authority to determine
question affecting the rights (and obligations) of
subjects" is a judicial" or "administrative" tribunal.
According to the Supreme court, in HART'S case
(supra):-
It is the same with individual officers (as in the
instant case) discharging public functions (see R.V.
BOYCOTT & ORS EXPARTE KEASLEY (1939) 2 K.B.
651), and to ministers of the crown such as in the
case of the King v. Minister of Health Exparte Yatte
(1930) 2 K.B. 98. (Per Bracket added). FATAYI
23

WILLIAMS JSC (as he then was) at 634 paragraphs
10 15; see also R. V. ELECTRICITY
COMMISSIONERS (1924) 1 K.B. 171 at 204-205.
It is needless to state that the case of ARZIKA V.
GOVERNOR NORTHERN REGION (supra) heavily
relied upon by the Appellant learned counsel was a
High Court decision, which is not only out of reality
of the current situation but also not binding on this
court. By the well cherished golden rule of stare
decisis, this court has a duty to be bound by the
wise and authoritative decision of the Supreme
Court in HART V. MILITARY GOVERNOR OF RIVERS
STATE (supra).
From the above postulations there is no doubt that
the trial court had the jurisdiction to entertain the
application and make the necessary order for
certiorari to issue quashing the non-judicial act i.e.
administrative act of the Appellant. On the issue of
whether or not the trial court was right in holding
that this is a proper case of certiorari and thereby
quashing Exhibits AG6 and AG8, referred to above,
I have deemed it expedient to allude to the record
of the lower court at pages 16-18, especially at
page17 paragraphs 5-25 thus:-
"A state civil service commission shall comprise the
following members-
(a) a chairman; and
(b) not less than two and not more than four other
persons, who shall in the opinion of the Governor
are persons of unquestionable integrity and sound
political judgment.
2. (1) the commission shall have power without
24

prejudice to the powers vested in the Governor and
the state judicial service commission to-
(a) Appoint persons to offices in the state civil
service; and
(b) Dismiss and exercise disciplinary control over
persons holding such offices
2. The commission shall not exercise any of its
power under such paragraph (1) of this paragraph
in respect of such offices of head of divisions of
ministries or of departments of the Government of
the state as may from time to time be designated
by an order made by the Governor except after
consultation with the Head of the civil service of
the state.
What is more, section 207 of the 1999 constitution
(supra) is to the effect that-
"207. subject to the provisions of this constitution,
a state civil service commission may, with the
approval of the Governor and subject to such
condition as it may deem fit, delegate any of the
powers conferred upon it ,by this constitution to
any of its members or to any officer in the civil
service in the state"..
The office of the 2nd Appellant, on the other: hand
is also a creation of the constitution by virtue of
section 208 thereof which inter alia provides thus:
208. -- (1) power to appoint persons to hold or act
in the office to which this section applies and to
remove persons so appointed from any such office
shall vest in the Governor of the State. 2. The
offices to which this section applies are namely _
(a) Secretary to the Government of the state.
25

With particular regard to the instant case no
evidence was adduced at the trial court to show
that the 1st Appellant had at any time delegated its
power to the 2nd Appellant or any person for that
matter, to issue out Exhibits AG6 and AG8 in
question. It is common ground that at the time the
Respondent was purportedly retired as a result of
Exhibit AG8 was a public servant in the services of
Imo State serving as secretary of the Executive
Council. A close perusal of the provisions of PART II
of the THIRD SCHEDULE Paragraph A 2 (1) and (2)
to the constitution (supra), shows clearly and
unequivocally that the power to appoint, discipline,
retire or dismiss the Respondent from the state
service is duly vested in the 1st Appellant. Thus in
the absence of any clear evidence of delegation of
the 1st Appellants power to the 2nd Appellant,
Exhibits AG6 and AG8, are as rightly held by the
learned trial judge, null, void, and of no effect
whatsoever. There is no doubt that the purported
retirement of the Respondent vide Exhibits AG6
and AGS, has amounted to a flagrant usurping of
the constitutional powers of the 1st Appellant by
the 2nd appellant. I consider it highly irregular and
reprehensible the 2nd Appellant had put himself
and the Government of Imo State in the
unfortunate albeit unnecessary situation where he
had to take a decision which he had no
constitutional power to take. As alluded to above,
it's a trite principle of law that wherever any body
of persons (or authority) having legal authority to
determine questions affecting the light of subjects
26

or citizens, and having the duty to act judicially or
fairly, acts in excess or contravention of their legal
authority, an order of certiorari or prohibition
would issue. See HART V. MILITARY GOVERNOR
RIVERS STATE (supra) at 634 pagraphs 10 - 15.
Thus, in the light of the above reasoning, my
answer to issue No 1 is no doubt in the affirmative.
And also hold.
ISSUE NO 2:
The above issue is said to have been distilled from
ground 2 of the Grounds of Appeal. It raises the
question of whether the lower court was right 1.o
have suo motu extended the time to file the
application which was brought out of time without
any application for extension of time. Reference
was made by learned counsel to Appellants to order
43 of Imo State High Court (Civil Procedure) Rules,
1988 which he said was not complied with by the
Respondent. See ABDULAAI V. GAPA (1992) 2
LRCN 144 at 159; order 43 Rule 4
(2). MADUKLU V. NKEMDILIM (1962) ALL NLR 587.
That, the application having been brought out of
time, invalidates the whole proceedings. Ser RE.
APPOLLOS UDO (1987) 4 NWLR (part 63) 120.
Thus, the application is statute barred; EGBE v.
ADEFARASIN (1985) 1 NWLR (part 3) 549.
It was further contended that a court should-nor
grant any prayer nor asked for by a party in a
proceeding. See EKPENYONG V. NYONG (1975) 2
SC 71.
The court is urged to thus allow the appeal and
27

dismiss the application for judicial review by way of
certiorari inquestion.
On his part, the Respondent's learned senior
counsel, inter alia submitted that order 22 Rule of
Imo State High Court (Civil Procedure) Rules
(supra) is of general application to all parts of the
Rules where in times is fixed for the doing of any
act in a proceeding. That, order 43 is not an
exception; so also is order 2 which provides that
failure to comply with any of the rules is to be
treated as an irregularity which the trial court has
competence to remedy. See UBA LTD V. NWORA
(1978) 11-12 SC 1 at 9-10. That, the act of the
trial judge was within his competence under the
Rules: the Appellants complaint is thus lacking in
merit. The Court urged to thus resolve issue 2 in
the affirmative and dismiss the ground two.
I have accorded an ample regard upon the
submissions of the two learned counsel on issue No
2 and vis-a-vis t re authorities referred to therein.
It's instructive that the learned trial judge had in
the Ruling thereof dated 08/3/2001 contained in
the Record especially from pages 45 - 47 thereof
extensively alluded to the submission of learned
counsel on the issue of the implication of filing the
application on an order of certiorari out of time by
the Respondent.
References were made to various authorities
including OBIORA V. OSELE (1989) 1 NWLR (part
97) 279 at 302 to the effect that -
"The point is that the spirit of justice does not
reside in Rules of court, in forms and formalities
28

nor in technicalities. These should all aid and not
defeat justice."
Having thus reviewed the submissions of learned
counsel on the issue, the learned trial judge cameto
the conclusion that:
In the circumstances of the facts stated above, I do
not think that it was unreasonable for the Applicant
to have waited for so long before bringing the
application.
In the interest of justice therefore, I grant the
Applicant an extension of time to bring this
application. I order that the motion Ex-parte for
leave to apply for certiorari filed on 12/10/2000 isto
be deemed to have been filed within time.
In my view, having considered the circumstances
surrounding this case as a whole, the granting of
extension of time by the learned trial judge, suo
motu, to the Respondent to file the application and
for deeming the motion ex-parte for leave to apply
for certiorari as having been filed within time, is
neither novel nor irregular. It is my view that,
considering the extent of the frustration to which
the Respondent had been subjected by the
appellants in the lawful pursuit of justice.I can not
but commend the learned trial judge forhaving
exercised his discretionary power as he did,in
favour of the Respondent. As the supreme had
stated in WORA'S case (supra).
Surely, this discretion, which the learned Chief
Judge undoubtedly has in that matter, must be
exercised judiciously, bearing in mind that it is
the duty of the court when ever possible not onlyto
minimize the cost of litigation but also to see to
29

it that justice is not delayed
unnecessarily...............
In our view, the learned Chief Judge, in the
exercise of his power under order 18 rules 6 should
have extended the time Suo Motu up to 18th April
1976, the delay when he delivered his ruling. By
ordering the Defendants as he did to apply within
ten days to file another statement of defence, the
learned Chief judge if we may say so again with
respect was merely taking refuge in an
unnecessary legal technicality which would
obviously delay the hearing of the action further,
We think he should have extended the time to the
file the statements of defence to the date of his
ruling, order that the statements of defence already
file had been duly filed and then fix and then fix a
date for the hearing of the case.
The above Supreme Court's case is no doubt a
veritable authority on the fact that the days when a
matter can be defeated merely on technical points
are gone. Most undoubtedly; courts, as cherishable
temples of justice, are purposely established to
administer substantial justice and not technical
justice between parties. In view of the, foregoing
reasoning there is no basis whatsoever to interfere
with the trial courts exercise of its discretionary
power; which I believe ii exercised both judicially
and judiciously. Resultantly, my answer to issue No
2 is most undoubtedly in the affirmative. And also
hold.
ISSUE NO 3;
30

This issue is said to have been distilled from ground
3 of the Appellants grounds of appeal. It raises the
question of whether the learned trial judge was
right in holding that the Respondent be restored to
his office and paid all his emoluments in spite of his
having been retired by the Appellant.
The argument of the Appellants on this issue is,
inter alia, to the effect that (i) the Respondent did
not challenge or protest his notice of retirement
vide Exhibit AG8; ii) that there is nothing in either
Exhibits AG6 or AG8 to imply that the Respondent's
retirement was as a result of any disciplinary
action; thus rendering chapter 4 of the Imo State
Civil Service Rules, 1979, in applicable to the
instant case; iii) that, rather the Respondent failed
to comply with chapter 11 of the Civil Service Rules
(supra); iv) that the term "public interest" is not
defined by the pensions Act, thus the definition of
similar term as contained in the Civil Service Rules
(supra) "can not be imported into the pensions
Act"; that its trite law that meanings can not be
read into a document when the wordings thereof
are clear and unambiguous. The Appellants learned
counsel thus urged on the court to answer issue No
3 in the negative, reverse the order of the court
below that the Respondent be restored to his office
and paid all emoluments due thereto.
On his own part, the Respondents learned senior
counsel submitted, inter alia, on issue No 3 that
ground 3 covered under this issue is with out any
merit.
Reference was made to the lower court's ruling
31

especially at 49 thereof regarding the findings of
the learned trial judge that the 2nd Appellant had
no competence to retire the Respondent. That,
there was no appeal against this conclusion on lack
of 2nd Appellants competence to retire the
Respondent.
According to the learned senior counsel, "the
purported retirement is deemed not to have
occurred at all and the respondent is deemed not to
have occurred at all and the respondent is deemed
not to have left the service at any time. That, the
trial court's order to that effect is unassailable and
this court is urged to thus affirm same.
On the Appellants' submission to the effect that the
Respondent's retirement by the 2nd Appellant does
not imply a disciplinary action, t1e learned senior
counsel replied thus:
'5.03 (ii) Section 3 (1) (g) of pension Act under
which the Appellant claimed to have acted provides
that a person who is retired in the public interest
shall not be granted pensions or gratuity. If this is
not See also Rules 04114, 04107 and 04108 of the
Imo State Civil service Rules (supra).
It was further contended that the Respondent
never claimed what he was illegally retired for
public interest but that his claim was that:
He was illegally retired by the 2nd Appellant on the
ground that he had served for 35 years when he
had not so served. It was the Appellant who,
finding themselves unable to grapple with the
obvious fact of the Respondent not serving 35
years, presented the issue of public interest as a
32

shield.
I think I can not agree more with that submission!
The Record of the trial court is unequivocally clear
as regards the state of the pleadings, the
submissions of the parties learned counsel and
vis-a-vis the findings, and consequential orders of
the learned trial judge thereupon. See most
especially page 48 of the Record wherein the
learned trial judge appraised the issue at stake,
most particularly regarding the contents of Exhibit
AG8 thus:
"In order to fully appreciate the issue in
controversy I set out hereunder the contents of the
said Exhibit AG8. It reads:
RETIREMENT FROM THE IMO STATE GOVERNMENT
SERVICE.
I am directed to convey the civil service
commission's approval for you to retire from the
Civil service with retrospective effect from 7th June
1997 after 35 years of service.
This i1 on grounds of public interest in accordance
with section 3 (i) (g) of the pensions Act of 1979.
2. Since the overstay was culpable on you, all
salaries and allowances pied to you after 6th June,
1997 should be deducted en bloc from your
gratuity.
3. In view of the above, you should surrender your
duty and all items of Government property in your
possession to the most senior Administrative offer
in the Exco secretariat.
4. You are to submit your retirement/pension
papers for necessary actions.
33

Contrary to the contention of the Appellant learned
counsel in the Reply Brief thereof at paragraph
5.03, its rather obvious that as rightly postulated
by the learned senior counsel that under the
provisions of section 3 (1) (g) of the pension Act
(supra) the Respondent would not be entitled to
any pension or gratuity. The provisions of the said
section 3 (1) (g) of the pension Act (supra) are to
the effect that:
"3.(1) No pension or gratuity shall be granted
under this Act to any officer except on his
retirement from the public service in any of
the circumstances that is
(g) If he is required by the Federal Civil Service
Commission to retire on the ground that his
retirement is in the public interest;"
Most undoubtedly, the implication of section 3 (i)
(g) of the pensions Act (supra) is that for the
Respondent to quality, to be entitled to pension or
gratuity under paragraph (g) --
(i) The Federal Civil Service Commission must have
required him to so retire on the ground that his
retirement is in the public interest.
(ii) That he is a staff or employee of the Federal
Civil Service."
From the foregoing postulation, its rather obvious
that the Appellants reliance on the said section 3
(1) (g) of the pensions Act in retiring the
Respondent on the alleged "ground of public
interest" is rather fallacious and highly
preposterous, to say the least. Thus my inevitable
answer to issue No 3 no doubt in the affirmative.
34

And also hold.
Hence, in the final analysis and for all the reasons I
have given in this judgment, I find myself agreeing
with the learned senior counsel for the Respondent
that this appeal lacks any substantial merit and
ought to thus; be dismiss. According, without any
further hesitation, the appeal is hereby dismissed.
The ruling of the Trial Court delivered on the 8th
day of March 200l hereby affirmed.
The Respondent is entitled to N10, 000.00 (Ten
Thousand Naira) cost against the Appellants.
MUSA DATTTJO MUHAMMAD. J.C.A: I have
read in draft the lead judgment of my learned
brother SAULAWA JCA. I entirely agree with him
that where a plaintiff's employment such as the one
in the instant came has statutory flavour, he can
only be disengaged from that employment in the
manner provided by the law.
By law 1st appellant has the authority to hire and
fire the respondent. The law does not vest this
power in those others who purportedly terminated
the employment of the respondent. Such a
determination of employment by a person or
authority that lacks the necessary statutory
authority to undertake the exercise is manifestly
illegal and must, and in affirming the decision of
the lower court, is hereby set aside. See Federal
Civil Service Commission v. Laoye (1989) 2 NWLR
(pt 106 652.
Respondent herein is aggrieved. It is said that the
should be denied relief simply because of the
35

seeming wrong procedure resorted to in his quest
for succour. We must continue to make judicial
officers and as an institution by addressing
substance rather than forming the discharge of our
functions.
Besides, the rules of court have provided that any
breach of its adjectival laws is an irregularity which
becomes fatal only where it had caused the other
side some manifest injustice. In the instant case no
such injustice has been manifested by the
appellants who inspite of the breach in procedure
participated in the ensuing proceedings without any
objections. They cannot complain now.
For the foregoing and more so the detailed reasons
and conclusions reflected in the read judgment, I
also dismiss this appeal. I make same consequential
orders as made in the lead judgment.
MONICA BOLNA'AN DONGBAN-MENSEM J.C.A:
I agree with the lead Judgment prepared by learned
brother, SAULAWA JCA.
The appeal is without merit and is accordingly
hereby dismissed.
I adopt the order as to cost made in the lead
Judgment.
Appearances
36

E. C. AGUTA (MRS) For Appellants
M. I. AHAMBA KSC, SAN
37
For
Respondent