The appellant was a lecturer between 1957 and 1961 in various schools and these schools were scattered all over the country including Lagos. Sometime in 1961, he was awarded a scholarship by the Federal Government to read anthropology. This course he successfully pursued in the University of London after which he applied to the Federal Public Service Commission to the post of Administrative Officer Class IV in November 1964. Appellant was transferred to the Eastern Region as it was known at that time and there he was until the outbreak of the civil war.

During the war, the appellant served with the rebel enclave known as the Republic of Biafra until the cessation of hostilities in 1970. After the war, appellant was re-instated into what had, as a result of creation of States, become the East Central State. His service within the rebel enclave was not to be counted for the purpose of pension and gratuity.

Towards the end of 1970, the appellant decided to study law. He resigned his appointment for this purpose in November, 1970 by giving a month’s notice. Before then, he had applied to the Ministry of Education for the recommendation of the Students Advisory Committee, and by a letter dated 5th October 1970 (Ex.F1), he was informed by the Permanent Secretary Ministry of Education that he had secured the status of a recommended private student. Appellant was also given approval to travel to the United Kingdom. This was contained in a letter written by the Secretary to the Government (Secretary Division). A letter to assist him to obtain a visa to the United Kingdom was also issued by the Ministry of Education.

Notwithstanding the letter of resignation by the appellant, he, on 8th December, applied to the Ministry of Establishments (Ex.G) for study leave without pay to commence from 27th December 1970. There was no reply to this letter of application before the appellant left to study law. Things started to happen by 10th December 1971 when a letter was written to the appellant terminating his appointment “for irresponsibly abandoning” his post effective from 27th December, 1970. This cloud hung over the appellant until he completed his law studies and returned to Nigeria. Somehow, on 14th January, 1974, he got a letter from the Secretary to the Military Government to the effect that the notice of termination of his appointment which was conveyed to him by the letter dated 10th December, 1970 had been cancelled and his resignation of appointment had been accepted with effect from 27th December, 1970. With this letter (exhibit 11), the position was that the appellant voluntarily resigned his appointment and had not been forced out of the service by termination of his appointment.

On 21st February 1974, the appellant got a temporary month-to-month appointment as Administrative Officer Grade III and on 27th May of the same year, his appointment on probation as Administrative Officer Grade III (no longer on month-to-month basis) was approved.

The appellant was therefore in the Federal Government services as Administrative Officer Grade III until 19th May 1976 when he finally resigned his appointment. It was before this resignation that he applied for a condonation of his break in service and to which application he got the letters dated 25th February 1977 and 11th March 1977 which had earlier been reproduced in this judgment. As the dates show, the letters were received after the resignation from the service.

The learned trial Judge construed the question raised in the declaratory action, and based on the facts hitherto recited in this judgment, as one of entitlement, as or right, to condonation of the break in service by the appellant. It was on this basis of “entitlement as of right” that the learned trial Judge proceeded to set down the rules as contained in the circular relied upon by the appellant. The learned trial Judge declared that as the circular required that the officer seeking condonation must “have served for at least 3 years and must also have been confirmed in his appointment before resignation, and also since the appellant was only confirmed in his appointment long after he had resigned the appointment, he failed in his claim as of right. The learned trial Judge concluded –

“It may be true the plaintiff satisfied all the requirements for confirmation by passing all the necessary examinations but the fact still remains that he was not a confirmed officer before he resigned to go abroad on 27th December, 1970, and this alone disqualified him from claiming to the right accorded by Ministry of Establishments’ Circular No.1, 1964 and Rules for Condonation of Break in Service attached thereto.”

The declaratory suit was accordingly dismissed. On appeal to the Court of Appeal it was held that the decision of the trial Judge was correct.

An appeal was lodged at the Supreme Court.