Barrister Emmanuel Maji -VS- President of the Federal Republic of

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN IN ABUJA

BEFORE: HONOURABLE MR. JUSTICE SANUSI KADO

22^ND DAY OF MAY 2018 SUIT NO: NICN/ABJ/248/2014

BETWEEN

Barrister Emmanuel Maji ………………………………Claimant

AND

President Of The Federal Republic Of Nigeria ……… Defendant
Alhaji Ahmadu Giade …………………Defendant/Applicant
National; Drug Law Enforcement Agency …. Defendant/Applicant
Secretary to the Government of Nigeria ……. Defendant
Attorney General of the Federation …………. Defendant
Chairman, Senate Committee on Drug and Financial Crime… Defendant
Chairman, House Committee on Drugs and Financial Crimes.. Defendant

REPRESENTATION:

JUDGEMENT

The Applicant commenced this suit via originating summons dated 1^st of September 2014, and filed on the 3^rd day of September 2014. The Applicant is seeking for the following reliefs;

A declaration that the continuous stay in office of the 2^nd defendant (Alhaji Ahmadu Giade) as Chairman/Chief executive of the national drug law enforcement agency(3^rd defendant) beyond 24^th November 2009 or 24^th November, 2013 (as the case may be) having being appointed in that capacity on 25^th November 2005, is unlawful and unconstitutional.
A declaration that any act done by the 2^nd defendant (Alhaji Ahmadu Giade) or duties performed by him in his capacity as Chairman/Chief Executive of National Drug Law Enforcement Agency (3^rd defendant) having exhausted his tenure, after 24^th November 2009 or 24^th November 2013,(as the case may be) is unlawful, unconstitutional, null and void.
AN ORDER OF PERPETUAL INJUNCTION restraining the 2^nd defendant (Alhaji Ahmadu Giade) from parading and conducting himself as Chairman/Chief Executive of National Drug Law Enforcement Agency (3^rd defendant) forthwith.
AN ORDER compelling the 2^nd defendant (Alhaji Ahmadu Giade) to immediately vacate office as Chairman/Chief Executive of National Drug Law Enforcement Agency (3^rd defendant), having exhausted his tenure in that capacity since November, 2009 or 24^th November, 2013 (as the case may be).
AN ORDER compelling the 2^nd defendant (Alhaji Ahamadu Giade) to refund all monies, salaries, allowances and all other benefits paid to or received by him in his capacity since 24^th November, 2009 or 24^th November, 2013 (as the case maybe) till date, having lawfully ceased to be the chairman/chief executive of the agency.
AN ORDER directing the 1^st defendant (President of the Federal Republic of Nigeria) to immediately appoint a new, credible and competent Chairman/Chief Executive for the National Drug Law Enforcement Agency (3^rd defendant).
AND FOR SUCH FURTHER ORDERS as this Honourable court may deem fit to make in the circumstance.

The originating summons is supported by a 39 paragraphs affidavit deposed to by the Claimant himself. In the affidavit in support of the Originating Summons it was stated that the 1^st Defendant, appointed the 2^nd Defendant as Chairman Chief Executive of the 3^rd Defendant sometime on the 25^th day of November 2005, for a term of four years, which tenure lapsed on the 24^th of November 2009, but has continued to hold out himself as the Chairman Chief Executive of the 3^rd Defendant till date. The Applicant averred that he has been so observant in the appointment processes of the Chairman/Chief Executive Officers of the 3^rd Defendant since its establishment in 1989. It was stated that the appointment of the 2^nd Defendant was made in accordance with the law establishing the 3^rd Defendant for a term of four years and same was duly and promptly announced to the general public by the 4^th Defendant. It was averred that shortly before the expiration of the 2^nd Defendant’s tenure the then President Umaru Musa Yar’adua became critically ill and was flown abroad for medical treatment but could not make. It was averred that with respect to appointment into the office of the Chairman/Chief Executive of the 3^rd Defendant tenure of the 2^nd Defendant was never renewed by President Yar’adua before his death and President Goodluck Jonathan as well did not renew the tenure of the 2^nd Defendant. It was stated that the 4^th Defendant is saddled with responsibility of announcing to the general public through the media any appointment or renewal of appointments made by the 1^st Defendant into all public offices in Nigeria and has consistently and dutifully performed such functions especially with respect to appointment into the office of the 3^rd Defendant. It was stated that all previous appointments into the office of the Chairman Chief Executive officer of 3^rd Defendant has always been announced to the general public by the 4^th Defendant and the 4^th Defendant since the 24^th of November 2009 has not announced to the public that the tenure of the 2^nd Defendant was renewed by any president of the Federal Republic of Nigeria after exhausting his 4 year tenure on 24^th November 2009. It was averred that the 2^nd Defendant has remained in office despite expiration of his tenure and spent additional 4 years parading and conducting himself in that capacity without formal or official renewal of his tenure by any president of the Federal Republic of Nigeria. According to the Applicant the additional tenure of 4 years without formal appointment from 24^th November 2009 to 24^th November 2013 elapsed and the 2^nd Defendant despite spending 8 years in office continued and remained in office till date. It was stated that all the previous Chairmen and Chief Executive officers of 3^rd were appointed for a period of 4 years and none of the completed his 4 years before removal from office, save Alhaji Bello Lafiaji the immediate predecessor of the 2^nd Defendant in this suit. It was averred that the 2^nd Defendant has performed several functions and duties and has been receiving salaries, allowances and other benefits in the capacity of Chairman Chief Executive of the 3^rd Defendant from 25^th day of November 2009 and or 24^th November 2013 till date, a period which he has occupied in excess of the tenure legally accruable to him without any official or formal renewal of his appointment.

The Applicant in line with the Rules of this Court filed a written address which was adopted by Counsel for the Applicant as his argument on the application. In the written address Counsel submitted four issues for determination, to wit:

Whether having regards to the provisions of section 171(d) of the constitution of the federal republic of nigeria,1999 (as amended) and the provision of section 2(2) of the National Drug Law Enforcement Agency as well as the doctrine of consistency, the 1^st defendant can validly appoint or allow the 2^nd defendant or any other person as a chairman/chief executive of the agency (3^rd defendant) for a tenure of only (4)years subject to renewal for a further term of four(4) years and no more?
whether the continuous stay in office of the 2^nd defendant as chairman/chief executive of the national drug law enforcement agency (3^rd defendant) beyond 24^th November,2009 or 24^th November,2013(as the case may be),is not unlawful and unconstitutional having been appointed in that capacity on the 25^th November,2005?
Whether the 2^nd defendant is liable to refund to the federal government of Nigeria all monmies, salaries, allowances and other benefit paid to or received by him in his capacity as chairman/chief executive of the 3^rd defendant(NDLEA),having exhausted his tenure and lawfully ceased to be the chairman/chief executive of the 3^rd defendant since 24^th november,2009 or 24^th November, 2013(as the case maybe)
whether the failure of the 1^st defendant to appoint a new person to the office of chairman/chief executive of the agency (3^rd defendant), the said office having been vacant since 24^th November,2009 or 24 november,2013(as the case may be) is not unlawful and unconstitutional, having regard to the provisions of section 171(d) of the constitution of the federal republic of Nigeria,1999(as amended) and section 2(2) of the national drug law enforcement agency Act,capN30,LFN,2004.
O. Ayeni, Esq; Counsel for the Applicant in his oral argument informed the Court that he is relying on all the paragraphs of the affidavit in support of the originating summons. Counsel also adopted the written address filed along with the originating summons.

On issue one, it is the submission of Counsel that the power to appoint 2^nd Defendant is by virtue of section 171(d) of the Constitution of the Federal Republic of Nigeria vested in the 1^st Defendant. Counsel submitted that though the NDLEA Act does not specify the number of years that constitutes a tenure for the chairman but that does not mean that the legislators intended a chaotic situation whereby successive presidents of the federal republic of Nigeria would be empowered or entitled to allot different number of years as tenure to their respective appointees according to their whims and caprices or even allot a life time. It is the contention of the Applicant that the doctrine of consistency demand that where law does not specify how a particular thing should be done, the fact that such thing has been consistently been done in a particular manner or pattern for several years in relation to persons in that category, it becomes an enshrined and an unshakable standard, a precedent which then serves a guide to the subsequent doing of such thing by the authority concerned. It is submitted the previous chief executive of 3^rd Defendant have been appointed on 4 years tenure which most of them did not complete. It is submitted that the immediate predecessor in office to the 2^nd Defendant could not complete his second tenure as he was removed 13 months into his second tenure. Counsel refereed to section 5(2) and section 2(2) of the NDLEA Act though the Act did not specify tenure for chairman and DG, the practice has been to appoint them on fours tenure. The claimant cited the case of brigadier general mohammed buba maruwa Vs Admiral muritala nyako (2012)1 MSCJ,34@40,R5. Counsel urged the Court to hold that where any statute is silence on tenure of any appointee into any public office, any appointee to such office can only occupy such office for a maximum of 8 years. Counsel submitted opening the constitutional gate of section 171(d0 of the constitution and section 2(2) of the NDLEA Act to an indefinite tenure in office by appointees like the 2^nd Defendant into public offices is not only absurd and contrary to provisions of the constitution and public policy but will lead to gross abuse in Nigerian Society. Counsel also made reference tenure of Directors in the Federal Civil Service. Counsel submitted that where the legislatures in their own wisdom see or have cogent or compelling reasons to empower an appointor to appoint an appointee to occupy a public office longer than his tenure such provisions will be specifically made in the statute. On this submission Counsel relied on the case of GOVERNOR OF KWARA STATE V OJIBARA (2007) ALL FWLR pt. 348, 846. Counsel made reference to certain statutes that provide for tenure of office. According to Counsel the 1^st Defendant cannot make any appointment for a period exceeding the period he himself is entitled to under the law section 135(2). Counsel contended 1^st Defendant lacks power to appoint 2^nd Defendant for a period longer than 4 years and if renewed not longer than 8 years.

On issue two, Counsel submitted that the continued stay of the chairman was unlawful as his stay in the office was not renewed as it was not publicized, he submitted further that the position of chairman/chief executive of NDLEA is a public office and that an appointment to that office must be publicized and cannot be done through the back door. Counsel queries that since the appointment of 2^nd Defendant was announced to the general public, the question to ask is at what point was 2^nd Defendant’s tenure renewed and at what point was is announced to the general public. Counsel submitted if the tenure of 2^nd Defendant was not renewed after his first term then his continued stay in office beyond the date of expiry is unlawful and unconstitutional. Counsel also submitted that assuming but without conceding that the 2^nd Defendant’s tenure was even renewed for a further term of 4 years after exhausting his initial 4 years on 24^th November 2009, his further renewed tenure of 4 years ought to have again elapsed since 24^th November 2013. Counsel submitted that it is anomalous that the 2^nd Defendant who has occupied his office for almost nine years since November 2005, he has remained in office till date and may remain in office for life contrary to provision of the constitution.

On issue three, Counsel submitted that the 2^nd defendant’s tenure of 4 years elapsed on the 24^th November 2009, having been appointed on 25^th November 2005 and same was never ever validly renewed by any president of the Federal Republic of Nigeria (The appointor) or at all. Having exhausted his initial tenure, his tenure must first of all be formerly and validly renewed by the president of the Federal Republic of Nigeria (1^st Defendant) pursuant to section 171(d) of the Constitution of the Federal Republic of Nigeria 1999, (as amended) for him to continue in office. Counsel submitted that where a precondition for doing an act or thing has not been complied with, no act subsequent thereto can be regarded as valid. Where the law prescribes the doing of a thing as a condition for the performance of another, the non-doing of such thing renders the subsequent acts void. FIRST BANK OF NIGERIA V VICTOR NDOMA EGBA (2006) ALL FWLR (Pt.307) 1012. Counsel submitted that assuming without conceding that the tenure of the 2^nd Defendant was renewed for 4 years (which was never done on public notice), the purported 2^nd tenure elapsed again on 24^th November 2013. According to counsel all acts done or duties performed by the 2^nd Defendant beyond 24^th November 2009 or 24^th of November 2013, as the case may be when his lawful authority to occupy the said office had already ceased are absolutely unlawful, unconstitutional, null and void and of no effect whatsoever, and the collateral concomitant of this is that all monies, salaries, allowances and other benefits paid to or received by him in the capacity of the 2^nd Defendant while as such are illegal, and so he is liable to refund same to the Federal Government of Nigeria. Counsel urged the Court to nullify all acts done by the 2^nd Defendant when he no longer had lawful or valid authority to do so, and to also compel him to refund all monies, salaries, allowances and other benefit received by or paid to him even if giving of orders by this court would appear punitive.

On issue four, counsel urged the court to hold that the 1^st Defendant is in flagrant breach of the provisions of section 171(d) of the Constitution of the Federal Republic of Nigeria, 1999, (as amended). ant when he no longer unlawfully paraded and conducted himself any act done, salaries, allowances received by the 2^nd defendant after 24^th November 2013 is unlawful, illegal and he is liable to refund same to the federal government.

Counsel to the plaintiff also submitted in favor of their issue four (4) that it is a flagrant breach of the provision of section 171(d) of the constitution of the Federal Republic of Nigeria, 1999, (as amended) and section 2(2) of the national drug law enforcement agency, by his failure to appoint a new chairman/Chief Executive since the 2^nd Defendant exhausted his tenure in November 2009 without any valid renewal or in November 2013 as the case may be. Counsel submitted that the power of the 1^st Defendant to appoint or renew the appointment of 2^nd Defendant is derived from section 171(d) of the Constitution, as amended. Counsel assuming but without conceding that the tenure had been renewed for further 4 years the tenure has elapsed for two cumulative 8 years and therefore no longer entitled to third tenure or more tenure more so that the idea of third term or tenure elongation is alien and an aberration to the Nigerian Society and no other appointee to such similar public office in Nigeria enjoys such privilege under our laws.

It is the submission of counsel that the 1^st Defendant cannot by his own whims and caprices whittle down the provisions of the Constitution and anoint the 2^nd Defendant for a tenure in perpetuity or life tenure. Counsel urged the court to hold that failure of 1st Defendant to appoint new Chairman of 3^rd Defendant after the expiration of tenure of 2^nd Defendant is unlawful and in violation of the Constitution of the federal Republic of Nigeria. Finally counsel urged the court to grant the reliefs being sought as contained in the originating summons.

RESPONDENTS OPPOSITION TO THE ORIGINATING SUMMONS.

In opposing the originating summons the 2^nd and 3^rd Defendants filed an 18 paragraphs counter-affidavit, sworn to by Rifkatu Philip Barde, a litigation Officer in the Department of Prosecution and Legal Services of the 3^rd Defendant. In the counter affidavit it was averred that it is not compulsory that appointments to the office of the 2^nd Defendant must be publically announced. It was stated that the announcement of the past occupants of the office of the 2^nd Defendant were never publically announced. It was also stated there is no position of Director-General in the 3^rd Defendant and that the positions occupied by David Ashang, Lanre Ipinmiso and Femi Ajayi were positions of secretary to the agency and not Director General. It was also stated that the first Secretary of the 3^rd Dendant was David Ashang but Tiamiyu Olugbenga served as protem Secretary of the 3^rd Defendant. It was averred that the National Drug Law Enforcement Agency Act and the Constitution did not provide for tenure of office of the 2^nd Defendant or Board members of 3^rd Defendant. It was averred that Alhaji Bello Lafiaji was appointed as the Chairman.Chief Executive of 3^rd Defendant for a period of 5 years tenure sometime in October 2000 which was reviewed in year 2005 and Alhaji Bello Lafiaji’s second tenure was short lived as he was removed from office shortly after the renewal of his appointment in year 2005. It was stated that vide exhibit NDLEA 1, Alhaji Ahmadu Giade was appointed on 28^th November 2005 for a 5 years term as the Chairman/Chief Executive of the 3^rd Defendant and vide exhibit NDLEA 2, the appointment of the 2^nd Defendant was on 14^th September 2010 renewed for a further term of 5 years. It was stated that vide exhibit NDLEA 3, as the expiration of the 2^nd Defendant’s tenure was approaching, he transmitted a letter of notification of expiration of his second term of appointment to the president, Commander in Chief of the Federal Republic of Nigeria. It was also averred that in January 2016, the 1^st Defendant appointed Colonel Muhammadu Mustapha Abdallah (Rtd) for a 5 ears term as Chairman/Chief Executive of the 3^rd Defendant.

The 2^nd and 3^rd Defendants filed along with the counter-affidavit a written address.

In arguing in opposition to the Originating Summons, Counsel submitted that only the first two declaratory reliefs and the fifth relief which is for refund of salaries earned for period in excess of 2^nd Defendant’s tenure may still be alive. While the other reliefs are technically dead for having been overtaken by events.

It is submitted that the Claimant is not just to prove facts he asserts, but to bring satisfactory evidence to establish his claim. This burden is discharged by leading positive evidence to establish his case as it will not suffice to rely even on the weakness of the Defendants case, ACB PLC V EMOSTRODE LTD (2002) FWLR (Pt.104) 540, (2002) 8 NWLR (pt.770) 501 and BENEVA AFRIBANK NIG. PLC (2013) ALL FWLR (Pt.702) 1652, AKINFE V UBA PLC (2007) 10 NWLR (Pt.1041) 185.

Counsel submitted that all that the Claimant did in this case is to use his figment of imagination and deposed to unsubstantiated facts. All the facts deposed to by the claimant are not supported by any documentary exhibit. Counsel referred to paragraphs 4 to 16 of the counter-affidavit together with three exhibits attached thereto and submitted that facts deposed to by the Claimant in his supporting affidavit are completely false as they are product of speculation and his figment of imagination. Counsel submitted that exhibits 1 and 2 clearly attest to the fact that contrary to the speculation, assumptions and imagination of the claimant. Counsel submitted by the two exhibits 2^nd Defendant was duly appointed for a two terms tenure of 5 years each which he diligently and meticulously served the country and relinquished office at the expiration of his tenure. It is contended that simply because appointment was not announced does not mean that such appointment was not made. It is submitted it is unfortunate that a person who claims to be a qualified lawyer practitioner will simply base a lawsuit purely on the basis of what was said or not said to the press. This is especially when he could have availed himself of the benefit of the freedom of information Act to seek any information over which he had doubt.

Whether or not, in the light of the facts and circumstances of this case, the claimant has established his case on balance of probabilities as required by law to enable him obtain the reliefs sought’’.

It is submitted that the answer to the issue of determination is in the negative as the claimant woefully failed to discharge the onus placed upon him by law. It is submitted it is trite he who assert must prove. This principle is captured in sections 131 to 133 of the Evidence act 2011 that squarely placed the burden of proof first on the claimant before it is shifted to the Defendant. See also cases of JACK V WHYTE (2011) ALL FWLR (Pt.43) 247, (2001) 3 SCNJ 55 and OMOWORARE V OMISORE (2011) ALL FWLR (Pt.582) 1670.

It is submitted that for a lawyer who claimed to be actively involved in observing the activities of the 3^rd Defendant not to have studied its enabling law and appreciate the fact that there is no position Director-General known to law is highly unfortunate. It is also submitted that the failure of the claimant to cite any specific provisions of the NDLEA Act or 1999 Constitution is highly fatal to his case as presently constituted having been initiated by way of originating summons. It is submitted in the absence of any clear cut provisions in any law regulating or written instrument limiting the tenure of the 2^nd Defendant to any specified period of time, he cannot be made to refund any money for service he rendered with the knowledge and blessing of his appointing authority even if it is for the sake of argument it is assumed he had no appointment letter. This is because doctrine of estoppel would avail the 2^nd Defendant who worked for his remuneration. In concluding his submission Counsel urged the Court in view of the unfounded, vexatious and malicious nature of this suit undertaken by the Claimant who claimed to be legal practitioner to dismiss this suit with substantial cost against the claimant and his counsel in favour of the 2^nd and 3^rd Defendants.

COURT’S DECISION:

I have very carefully and painstakingly perused the originating summons and its supporting affidavit. I have equally thoroughly examined the content of the counter-affidavit filed in opposition to the originating summons, as well as the addresses of Counsel for both parties.

The Claimant has submitted four issues for determination. While the 2^nd and 3^rd Defendants/Applicants submitted lone issue for determination. In my view the issue calling resolution is:

‘‘ whether having regard to the provisions of section 171(d) of the Constitution of the Federal Republic of Nigeria, 1999, (as amended) and the provisions of section 2(2) of the National Drug Law Enforcement Agency Act, the Claimant is entitled to the reliefs being sought’’.

The Claimant commenced this action via Originating Summons, the reliefs being sought as well as the issues submitted by the Claimant for determination, left no one in doubt that the Claimant is seeking for interpretation of the provisions of Constitution and a statute regarding appointment, tenure, and expiration of office of the 2^nd Defendant. It is apparent that the Claimant also want this Court to determine whether the 1^st Defendant has abdicated the responsibility and power of appointment vested in him by the law.

The very nature of an originating summons is to make things simpler by avoiding the necessity of calling witnesses to testify before the Court. The use of originating summons available to any person wishing to seek for determination of question or construction arising under the provisions of Constitution or a statute for a declaration of his interest. The Claimant in the case at hand is seeking for interpretation of the provisions of the Constitution and a statute regarding appointment, tenure and expiry of office of 2^nd Defendant, as well as question of abdication of duty on part of the 1^st Defendant to appoint a successor after the purported expiry of the tenure of the 2^nd Defendant.

It has been laid down in a plethora of cases that in the interpretation and construction of the constitution or statutes the court are enjoined to act in accordance with the intendment of the law makers, and to lean against any interpretation that will provide absurdity. A statute must not be given a construction that will defeat its purpose. Once the words used in the Constitution or statute are clear and unambiguous, they ought to be accorded their simple grammatical meaning. See ADEWUNMI V AG EKITI STATE (2000) 2 NWLR (PT.751) 474, FAWEHINMI V IGP (2000) 7 NWLR (PT.665) 481, AWOLOWO V SHAGARI (1979) 6-9 SC 51. The Courts are vested with power to interpret the Constitution and statutes. See JABIN ONESA OGAGA V THOMAS E. UMUKORO & ORS. (2011) LPELR -8229(SC). In interpreting the intention of statute or Constitution, the Court must endeavor to give the words used in the constitution or statute its ordinary, natural and grammatical construction unless such interpretation would lead to absurdity or inconsistency with the rest of the legislation. ALHAJI ADISA V OYINWOLA & ORS. (2000) 10 NWLR (pt.67) 116, RALPH NWAZURIKE & ORS. V AGF (2007) 2 SCNJ 369, AMAECHI V INEC (2008) 5 NWLR (PT.1080) 227. GASSOK V TUTARE & ORS (2013) LPELR-20232(SC). It is the law that the Courts in interpreting the provisions of the Constitution or a statute must read together related provisions of the Constitution or the statute in order to discover true meaning of the provisions. In ACTION CONGRESS & ANOR. V INEC (2007) 12 NWLR (PT.1048) 222@ 259 KATSINA-ALU, JSC (as he then was) retired CJN, had this to say

‘‘it is a settled principle of interpretation that a provision of the Constitution or a statute should not be interpreted the words being interpreted in isolation but rather in the context of the Constitution or statute as a whole. Therefore, in construing the provisions of a section of a statute, the whole of the statute must be read in order to determine the meaning and effect of the words being interpreted; see BUHARI V OBASANJO & ORS (2005) 13 NWLR (Pt.941) 1. But where the words of a statute are plain and unambiguous, no interpretation is required, the words must be given their natural and ordinary meaning’’. See also JOSHUA GUTTING V TUNYANG DAVWANG (2013) LPELR-21921(CA).

The discussion on whether or not, the Claimant is entitled to the declaratory and injunctive reliefs as well as order for refund of salaries and allowances back to the Federal Government by the 2^nd Defendant will depend on proper construction of the provisions of section 171(d) of the Constitution of the Federal Republic of Nigeria, 1999, (as amended) and the provisions of section 2(2) of the National Drug law Enforcement Agency Act, which are the fulcrum of the Claimant’s complaint before the Court. The sections concerned are reproduced hereunder:-

‘‘171. (1) Power to appoint persons to hold or act in the offices to which this section applies and to remove persons so appointed from any such office shall vest in the President.

(2) The offices to which this section applies are, namely –

(a) Secretary to the Government of the Federation;

(b) Head of the Civil Service of the Federation;

(d) Permanent Secretary in any Ministry or Head of any Extra-Ministerial Department of the Government of the Federation howsoever designated; and

(e) any office on the personal staff of the President.

(3) An appointment to the office of the Head of the Civil Service of the Federation shall not be made except from among Permanent Secretaries or equivalent rank in the civil service of the Federation or of a State.

(4) An appointment to the office of Ambassador, High Commissioner or other Principal Representative of Nigeria abroad shall not have effect unless the appointment is confirmed by the Senate.

(5) In exercising his powers of appointment under this section, the President shall have regard to the federal character of Nigeria and the need to promote national unity.

(6) Any appointment made pursuant to paragraphs (a) and (e) of subsection (2) of this section shall be at the pleasure of the President and shall cease when the President ceases to hold office;

Provided that where a person has been appointed from a public service of the Federation or a State, he shall be entitled to return to the public service of the Federation or of the State when the President ceases to hold office’’.

While section 2 of the National Drug Law Enforcement Agency Act, provides:-

(1) The Agency shall consist of the following-

(a) aChairman;
(b) a representative of the Nigeria Police Force, not below the rank of an Assistant Inspector-General;

(d) the Director of Customs and Excise;

(e) the Director, State Security Service;

(f) a representative of the Federal Ministry of Justice not below the rank of Director;

(g) the Director-General, National Intelligence Agency;

(h) a representative each of the Ministries of External Affairs, and Health not below the rank of Director; and

(i) three other persons.

(2) The President, Commander-in-Chief of the Armed Forces shall appoint the Chairman and the members specified in paragraph (i) of subsection (1) of this section on the recommendation of the Attorney-General of the Federation.

Before considering the purport of section 171(d) of the Constitution, (as amended) and section 2(2) of the National Drug Law Enforcement Agency Act, it is pertinent at this juncture to point out here that two of the reliefs being sought are declaratory in nature and the law is trite that the law required a party seeking for declaration before the court to plead and prove his claims for declaratory reliefs on the evidence called by him without relying on the evidence called by the defendant is indeed well settled. The burden of proof to establish declaratory reliefs to the satisfaction of the court is quite heavy in the sense that such a declaration are not granted on admission by the Defendant. In other words, declaration of right as sought by the claimant in the two reliefs against the defendants cannot be made on admission or weakness of the defence. Declaration is neither made on admission or default of pleading. ANYANRU V MANDILAS LTD (2007) 10 NWLR (PT.1043) 462 DUMEZ NIGERIA LTD V NWAKHOBA (2008) 18 NWLR (PT.1119) 361 SC.

As pointed out in early part of this judgment, once the provision of Constitution or a statute are clear and unambiguous, the duty of Court is to interpret the clear provisions by giving the plain wordings their ordinary natural meaning without more. It is not the function of the court in interpretation to give meaning contrary to the clear intention of the law makers. The court has no business sympathizing with any of the parties so as to conform to the party’s view of the law. The duty of making law or amending or repealing the law lies squarely within the province of the legislature. This is in line with the old age long doctrine of separation of power. It is the constitutional function of legislature to enact, laws, including amendment and revocation and the duty of the court is to interpret the laws as passed or amended or revoked to achieve the intention of legislature. Where the provisions to be interpreted is plain and unambiguous the court must give it its plain meaning without recourse to extraneous matters outside the legislation under consideration so as to found in favour of one of the parties. It is apparent therefore the court in interpreting the provisions of section 171(d) of the Constitution and section 2(2) of the National Drug Law Enforcement Agency, the Court will endeavor to construe and interpret the said provisions of the Constitution and statute in such a way as to discern the real intention of the draftsman.

Now, applying the above principle of interpretation to the cases at hand, it is obvious from the provisions of section 171(d) and section 2(2) of the NDLEA Act that the 1^st Defendant has been vested with power of appointment to the office of the 2^nd Defendant. The power is vested on the 1^st Defendant Constitutionally and statutorily. The office of the 2^nd Defendant being a creation of section 2(1) (a) of the NDLEA Act as head of extra Ministerial Department of the Federal Government falls within the purview of section 171(1) (d) of the Constitution of the Federal Republic of Nigeria, which the 1^st Defendant is vested with power Constitutionally to appoint or remove. The provisions of section 2(2) of the NDLEA Act statutorily vest in the 1^st Defendant the power of appointment of persons to the office of the 2^nd Defendant.

However, a careful perusal of the sections under consideration will show that contrary to the submission of the Claimant the sections did not provide for a two terms tenure of four years each (8 years cumulative) for the holder of the office of the 2^nd Defendant. To accept that view will do violence to the clear and unambiguous provisions of section 171(d) of the constitution, as amended, and the provisions of section 2(2) of the NDLEA, Act. The two provisions relate exclusively to the power of the 1^st Defendant to make appointment to the office of the 2^nd Defendant and removal as well. If the draftsman has intended to provide for tenure of two terms of four years for the holder of the office it would have stated so in the provisions in unambiguous terms. In the absence of such provision, I have no choice than to reject such call from the Claimant to make pronouncement on that.

A hard look at the affidavit evidence in support of the Originating summons will revealed that there is no iota of evidence to prove the two terms of four year being canvassed by the Claimant. All the submissions to that effect goes to naught for having not been backed by any cogent and credible evidence. As pointed out earlier in seeking for declaratory reliefs the Claimant is under an obligation to prove his entitlement to the declaration on credible and acceptable evidence.

From the foregoing, the Claimant has woefully failed to prove his entitlement to the declaratory reliefs 1 and 2, due lack of discharge of burden of proof placed on him by the law. This position is reinforced by the failure of the Claimant to tender any exhibit purporting to be the letter of appointment of the 2^nd Defendant stating the tenure of his office and its expiry date. If the assertion of the Claimant to the effect that the appointment to the office of the 2^nd Defendant has in the past been announced via media, such evidence of the announcement has not been brought to the notice of the Court for its inspection in proof of the assertions.

For purpose of discovering the true intent of legislature the court is duty bound to read entire section of the law to be interpreted, if the section has many sub-sections as in this case. See DICKSON V SLVA 2017 8 NWLR PT1567 167 @ 224, INAKOJU V ADELEKE 2007 4 NWLR PT.1025 423, OYENIYI V ADELEKE 2009 ALL FWLR PT.476 1902. It is cardinal principle of law that a court cannot, while interpreting a statute, embark on judicial legislation, namely law-making The aim is for court to expound the law and not to expand the law. The business of the court is to determine what the law is and not what it ought to be. The court is enjoined to always tow the path of objectivity and not be subjectivity. The court has no duty to supply omissions in a statute. The court will not lend its weight to interpretation that would result in breaching the object of the statute. See AMALGAMATED TRUSTEES LTD V ASSOCIATED DISCOUNT HOUSE LTD 2007 15 NWLR PT.1056 118 @ 233.

In the light of the foregoing principles of law, a careful perusal of the entire provisions of section 171 of the Constitution of the Federal Republic of Nigeria, (as amended), will generally revealed that it was designed to make provisions for making appointments into certain offices by the 1^st Defendant in this this case. By sub-section (6) of the said section, all the appointment to be made under the section shall be at the pleasure of the president and shall ceased when the president ceases to hold office. This is a pointer to the fact that there was no period of years pegged for the appointment. However, all appointees from public service of the Federation or a State are entitled to return to the public service of Federation or of the State as the case may be. The intention of the legislature is patently clear to the effect that any appointment under this section shall be at the pleasure of the president this means that the appointment is at the discretion of the president without any number of years to serve attached, save that the appointment be by effluxion of law ceases with ceasing of the tenure of the holder of the office of the president. It is therefore clear that any appointment not made in compliance with the tenor and letter of this section will be in violation of the law.

The Claimant in his written address has submitted that with expiration of the first tenure of the 2^nd Defendant and its non-renewal because of the renewal not made public, all acts done or duties performed by the 2^nd Defendant beyond 24^th November 2009 or 24^th November 2013 as the case may be, when his lawful authority to occupy the said office had already ceased are absolutely unlawful, unconstitutional, null and void and of no effect whatsoever, and the collateral concomitant of this is that all monies, salaries allowances and other benefits paid received by him in the capacity of 2^nd Defendant while he unlawfully paraded and conducted himself as such are illegal, and so he is liable to refund same to the Federal Government. Counsel urged the Court to nullify all the acts done and compel the 2^nd Defendant to refund monies received for the period when he no longer had lawful or valid authority to act. For the 2^nd and 3^rd Defendant it was argued that because of absence of any clear cut provision of law regulating or written instrument limiting the tenure of the 2^nd Defendant to any specified period of time, he cannot be made to refund any money for services which he rendered with the knowledge and blessing of his appointing authority even if for the sake of argument he had no appointment letter. The Claimant has not shown by evidence the actual amount of money to be refunded and how the amount was arrived at. This leg of the Claimant’s reliefs like the 1^st and 2^nd reliefs of declaration has not been proved there is no evidence to support the request. It should be remembered that I have indicated in this judgment that the law applicable to this suit did not provide for four year terms of office of the 2^nd Defendant. The law has given power to the 1^st Defendant power to make appointment into the office of the 2^nd Defendant, however, the appointment shall ceased with the cessation of the tenure of the 1^st Defendant. From this it will be seen that whenever a person is appointed by an incumbent president to the office of 2^nd Defendant that appointment in the first instance can never be for a period of 4 four years the reason being that by the time such appointment is made the 1^st Defendant would have spent some period into his four years tenure unless re-elected to occupy the office of the president again for the second term. In the circumstances where a person is appointed to the office of the 2^nd Defendant at the expiration of the tenure of his appointor he ceased to hold that office, but where the incoming president allowed the person to continue in office he is presumed to have been duly appointed otherwise if that is not the case the appointor would have appointed another person. In view of this there is no justification to request the 2^nd Defendant to make any refund for work he actually performed. The 2^nd Defendant also enjoy protection of the law, as all acts done or performed are presumed to be correct in the eyes of the law until the contrary is proved. This is expressed in the common law maxim in the latin phrase ‘‘omnia presumuntur rite esse acta’’. Phipson on evidence 11^th edition have this to say on this presumption ‘‘the presumption is akin to presumption of innocence in criminal cases, it applies to judicial and official acts, though in most cases conclusive it is in general only rebuttable’’. The continuance of the 2^nd Defendant in office is a presumption that he has been re-appointed. This presumption can only be rebutted by production of cogent and credible evidence. The onus of rebuttal of this presumption is on the Claimant and he has failed to do so by his evidence. See BUHARI V INEC (2008) 18 NWLR (Pt.1120) 246, AMALA V STATE (2004) 12cNWLR (Pt.888) 520SHITTA-BAY V AG FEDERATION & ORS. (1998) 10 NWLR (Pt.570) 392 & ORS.

Before concluding this judgment, it behooves on me to point out that the counter-affidavit filed in opposition to this application has made positive assertions to the effect that the 2^nd Defendant has vacated office and a new Chairman of the 3^rd Defendant has been appointed, see paragraphs 14 and 15 of the counter-affidavit. The implication of the counter-affidavit is that reliefs Nos. 3, 4, and 6 as contained in the Originating Summons are spent and no longer live issues in contention, as the reliefs have become moot. This position is taken in view of the Claimant’s non rebuttal of the said paragraphs of the counter-affidavit. The Claimant’s failure to file a further and better affidavit to contradict or controvert the assertion in paragraphs 14 and 15 of the counter-affidavit amount to admission of the assertions contained therein.

I refrain from using the contents of exhibit NDLEA 1, NDLEA 2 and NDLEA 3, attached to the counter-affidavit on the premise that in an action of this nature the Claimant succeed on the strength of his and as well fails on lack of cogent and credible evidence to prove his claim. The evidence Act by sections 131, 132 and 133(1) of the evidence Act 2018, required he who assert to prove. It is after credible evidence has been adduced in proof of assertion that the opposing party will be called upon to defend by producing cogent and compelling evidence in defence of his position. In the absence of lack of proof it is not necessary to consider the exhibits attached to the counter-affidavit. Another militating factor against the use of the three exhibit is the fact that those exhibits are public documents in the absence of the original being produced for the inspection of the Court, certified true copies in line with section 104 of the Evidence Act are the only secondary evidence allowed by law to be admissible. In the absence of any certification in compliance with the provisions of the evidence Act, the exhibits are valueless have no evidential value, they are hereby discountenanced. See MALLAM DAUDA ALHAJI AHMADU PEGI BIYE V ALHAJI SALE IBRAHIM BIYE 2014 LPELR-24003, SENATOR IYIOOLA OMISORE V OGBENI RAUF AREGBESOLA 2015 LPELR-24803.

For avoidance of doubt the orders of the Court are as follows:-

Relief 1 and 2, have failed due to lack of cogent or credible evidence in proof. Being declaratory reliefs the Claimant succeeds or fails on the strength of his case. The affidavit evidence adduced by the Claimant is based on speculation and conjecture. The Claimant has no certainty on the actual terms and condition of service of the 2^nd Defendant against whom the declaratory reliefs were sought. The Court cannot make declaration based on insinuation and analogical deductions not backed by law or evidence.
The reliefs Nos. 3 and 4 fails and are hereby refused on the ground that they are spent and moot. The counter-affidavit has averred that the 2^nd Defendant has vacated his office and a new Chairman/Chief Executive of 3^rd Defendant had been appointed and he has resumed office. In the absence of further affidavit to contradict the averment in the counter-affidavit, this Court has no choice than to accept the evidence in the counter affidavit to the effect that the 2^nd Defendant has left office.
Relief 6 is also refused due lack of proof by cogent and credible evidence in rebuttal of the presumption of regularity of official acts.

However, on the community consideration of the entire provisions of section 171 of the Constitution of the Federal Republic of Nigeria, 1999, (as amended), and section 2(2) of the National Drug Law Enforcement Agency Act, it is my humble view that the two provisions of the constitution and statute have vested in the President of the Federal Republic of Nigeria, the power to at his pleasure make appointment into the office of the 2^nd Defendant in this suit as well as power of removal. The person so appointed pursuant to the foregoing provisions of the law is to cease to hold such office when the president (his appointor) ceased to be the president of the Federal Republic of Nigeria, the reason being that the appointment into the office of the 2^nd Defendant is at the pleasure of the president. And I so hold.

The totality of all I have been saying is that this suit failed due to lack proof and is hereby dismissed.

Judgment entered accordingly.

I award no cost.

Sanusi Kado,

Judge.