CHIEF S. B. ADEYEYE & ORS V. GOVERNOR, EKITI STATE & ANOR
(2011)LCN/4651(CA)
In The Court of Appeal of Nigeria
On Friday, the 24th day of June, 2011
CA/AE/67/2010
RATIO
DUTY OF COURT: DUTY OF COURT IN INTERPRETING THE PROVISIONS OF THE CONSTITUTION
It therefore follows that the primary aim of this court or any other court or tribunal is to do substantial justice. This should be more pronounced in Constitutional matters. That being so, a judge or court interpreting the provisions of the Constitution should always have regard to the background and the social changes which advancement and passage of time have brought in their trail. That is so because no society is static and therefore as society moves from one stage to another changes in the social, cultural, economic and political lives of the people may come with it. It does not however mean that the court should change the words used by the makers of the Constitution. All that is required is for the judge to come to terms with the changing times, even when giving literal interpretation to clear and unambiguous words used in the Constitution. The whole essence is to interpret the Constitution in such a way as to uphold the words used such as to meet the purpose of the framers and the aspirations it holds out for the larger society. In interpreting the provisions of the Constitution therefore, where the language or words used are clear and unambiguous, they must be given their plain meaning. Similarly, in giving effect to the words used, the provisions of the Constitution must be considered as a whole so as not to veer away from the intendment of the framers of the Constitution. Thus, the provisions of the constitution must not be read in isolation of other parts, but every clause should be read with reference to the context and other clauses so as to make a consistent interpretation of the whole constitution relating to the subject matter under consideration. See OJUKWU V. OBASANJO (2004) 12 N.W.L.R (PT.886) P.169 at P.197; A.G; LAGOS STATE V. A.G; FEDERATION (2004) 18 N.W.L.R (PT.904) P.1 and FAWEHINMI V. I.G.P. (2001) 7 N.W.L.R. (PT.767) P.606. PER HARUNA M. TSAMMANI, J.C.A.
INTERPRETATION OF STATUTE: INTERPRETATION OF SECTION 201(1) OF THE 1999 CONSTITUTION AS IT REGARDS THE REMOVAL FROM OFFICE OF ANY PERSON HOLDING THE OFFICE OF CHAIRMAN OR MEMBER OF THE EKITI STATE INDEPENDENT ELECTORAL COMMISSION BY THE GOVERNOR
201-(1) Any person holding any of the offices to which this section applies shall only be removed from that office by the Governor of that state acting on an address supported by two-thirds majority of the House of Assembly of the state praying that he be removed for inability to discharge the functions of the office (whether arising from infirmity of mind or body or any other cause) or for misconduct”. By the above stated provision of the Constitution therefore, any person holding the office of Chairman or member of the Ekiti State Independent Electoral Commission may be removed from that office by the Governor of Ekiti State due to his inability to discharge the functions of the office, by reason of infirmity of the body or mind or any other cause, or for misconduct. PER HARUNA M. TSAMMANI, J.C.A.
BRIEF OF ARGUMENT: STATUTORY PROVISION ON THE DUTY OF A RESPONDENT TO ANSWER ALL MATERIAL POINTS OF SUBSTANCE CONTAINED IN THE APPELLANT’S BRIEF OF ARGUMENT; EFFECT OF THE MATERIAL POINT IN AN APPELLANT’S BRIEF WHICH HAS NOT BEEN COUNTERED IN THE RESPONDENT’S BRIEF
By virtue of order 6 rules 4(2) of the Court of Appeal Rules, 2007, a respondent has a duty to answer all material points of substance contained in the Appellant’s brief of argument and all points raised therein which the respondent wishes to concede as well as reasons why the appeal ought to be dismissed. Consequently, where a point is made in the appellant’s brief and which point is so crucial that it can determine an issue in the appeal, it becomes incumbent on the respondent to respond to, controvert or challenge same. In a circumstance where respondent’s counsel is not in a position to controvert or challenge the point so made, he should at least as a minister in the temple of justice be courageous enough to concede to the point. This would no doubt save the court valuable time and resources. Thus, every material point in an appellant’s brief which is not countered in the respondent’s brief is deemed to have been conceded to the appellant by the respondent. See F.B.N PLC. V. AKINYOSOYE (2005) 5 N.W.L.R (PT.9181)P.340: IDIATA V. EJEKO (2005) 11 N.W.L.R (PT.936) P.34.9: T.G.F.A (NIG) LTD V. M.L. LTD (2005) 17 N.W.L.R (PT.953) P.70: SHONA-JASON LTD. V OMEGA AIR LTD. (2006) 1 N.W.L.R (Pt.960) P.1 and EIGBE V. N.U.T. (2008) 5 N.W.L.R (PT.1081) P.604. PER HARUNA M. TSAMMANI, J.C.A.
CONSTITUTIONAL BODY: DUTY OF THE COURT WHERE THE CHAIRMAN AND MEMBERS OF A BODY OR COMMISSION CREATED BY THE CONSTITUTION ARE REMOVED IN VIOLATION OF THE CONSTITUTION OR THE STATUTE CREATING SAME
…where the Chairman and members of a body or Commission created by the Constitution are removed in violation of the Constitution or the statute creating same, the Court will be quick and ready to order for their reinstatement. However, in a situation where reinstatement is not appropriate or possible, the Court may award damages in lieu of reinstatement. See U.N.T.H.M.B. V. NNOLI (Supra) cited by learned counsel for the Appellants. See also OLANIYAN V UNIVERSITY OF LAGOS (NO.2) (1985) 2 N.W.L.R (Pt.9) P.599: IGBE V GOVERNOR: BENDEL STATE (1983) 1 S.C.N.L.R. P.73: GOVERNOR: EKITI STATE V. OJO (2006) 17 N.W.L.R (PT.1007) P.95: ADEBAYO V. O.A.U.T.H.C.M.B (2000) 9 N.W.L.R (PT.673) P.585. PER HARUNA M. TSAMMANI, J.C.A.
JUSTICES:
UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
HARUNA M. TSAMMANI Justice of The Court of Appeal of Nigeria
Between
1. CHIEF S.B. ADEYEYE
2. CHIEF M.O. OGUNREMI
3. GHIEF O.A. AGIDIGBI
4. MRS. R.B. ASAOLU
5. MRS. S.O. FASANMI
6. MR. O. OLAYINKA
7. MR. S.A. AGBAJE – Appellant(s)
AND
1. GOVERNOR, EKITI STATE
2. ATTORNEY GENERAL AND COMMISSIONER FOR JUSTICE, EKITI STATE – Respondent(s)
HARUNA M. TSAMMANI, J.C.A.(Delivering the Leading Judgment): The Appellants who were plaintiffs at the Ekiti State High Court sitting at Ado-Ekiti in Suit No: HAD/10/2004, were appointed as Chairman and members of the Ekiti State Independent Electoral Commission on the 22nd April, 2001, whilst the 7th Appellant was appointed as member of the said Commission on the 5th of March, 2003.
The 1st Appellant was Chairman of the Commission, while the 2nd – 7th Appellants were members. Their respective appointments were for duration of five (5) years pursuant to Section 199(c) of the 1999 Constitution of the Federal Republic of Nigeria. However, on the 11th July, 2003, the Secretary to the Ekiti State Government wrote the Appellants intimating them that their services were no longer required with effect from 30th of June, 2003 and that they have been relieved of their posts as Chairman and members of the Commission respectively.
The said letters terminating the appointment of the Appellants were annexed to their affidavit in support of the action as Exhibits I, J, K, L, M, N and O respectively. The Appellants were aggrieved by the action of Ekiti State Government and therefore took out an originating summons against the Respondents seeking for the determination of the following questions:
1. Whether by the effect of the provisions of Sections 197, 198, 199 and 201 of the 1999 Constitution of the Federal Republic of Nigeria and the terms of the plaintiffs’ respective appointments as contained in their individual letters of appointment, the plaintiffs are not entitled to continue in office until the 22nd March, 2006 except Mr. S.A. Agbaje whose tenure is due to expire by 5th March, 2008.
2. Whether under the law establishing the State Independent Electoral Commission, Ekiti State of which the plaintiffs are Chairman and members, it is competent for the plaintiffs to be removed from office by 1st Defendant without any cause whatsoever.
3. What is the legal effect of the dissolution of the State Independent Electoral Commission and resultant removal of the plaintiffs from office before the expiration of their current term of office.
The Appellants, as plaintiffs, then claimed for the following reliefs:
1. Declaration that under the terms of their membership of the Ekiti State Independent Electoral Commission as contained in the Sections 197, 198, 199 and 201 of the 1999 Constitution of the Federal Republic of Nigeria and their respective letters of appointment, they are entitled to continue in office as Chairman and members of the Commission until 22nd March, 2006 except the 7th plaintiff Mr. S.A. Agbaje whose tenure is due to expire by 5th March, 2008, unless removed for good cause.
2. Declaration that the purported removal of the plaintiffs from their respective offices via the dissolution of the Boards of all Parastatals, Agencies and Commissions as contained in circular letter No: EK/P&E/11/46 of the 2nd June, 2003 as well as individual letters dated 11th July, 2003 is illegal, unconstitutional, against the rules of natural justice, null, void and of no effect.
3. Declaration that the first – sixth plaintiffs and the 7th plaintiff are entitled to receive salaries and allowances attached to their offices as Chairman and members of the Ekiti State Independent Electoral Commission up till 22nd March, 2006 and 5th March, 2008 respectively.
4. An Order of injunction restraining the Defendants from treating the plaintiffs appointments as Chairman and members of the Ekiti State Independent Electoral Commission as having come to an end or appointing other persons to replace them and perform the duties of their offices.
OR IN THE ALTERNATIVE
5. An Order of payment of the first to sixth plaintiffs and seventh plaintiff, the total of all remunerations due to them up till and including 22nd March, 2006 and 5th March, 2008 respectively as damages for premature removal from office.
The originating summons which is dated the 28th day of January, 2004 was filed before the lower court on the 29th of January, 2004. It is supported by an affidavit of 39 paragraphs deposed to by Chief Samuel Bamidele Adeyeye who is the 1st Appellant. The affidavit was deposed to with the consent and authority of the other Appellants. Annexed to the affidavit are several documents marked as Exhibits A – U respectively.
The Respondents filed a Counter Affidavit of 7 paragraphs, with several sub-paragraphs wherein they resisted the Appellants’ claims. The votes and proceedings of the Ekiti State House of Assembly dated 6th day of June, 2003 was Exhibited to the Counter Affidavit of the Respondents as Exhibit PAF1. The Appellants responded to the Counter Affidavit by filing a Further and Better Affidavit dated 14/02/2005. Arguments on the Motion were taken before the lower court on the 8/03/2005, 29/7/2005, 18/10/2005, 27/01/2006 and 13/2/2006 respectively. In a considered judgment delivered on the 26th May, 2006, the learned trial judge refused the plaintiffs/Appellants’ claims before him and consequently dismissed same as lacking in merit. The Appellants are dissatisfied with the said judgment and have now appealed to this court vide Notice of Appeal dated the 7th day of July, 2006.
Before this appeal could be heard, the Appellants filed an Amended Notice of Appeal vide Motion on Notice dated the 3rd February, 2010 and filed the 12th February, 2010. The Amended Notice of Appeal which is dated the 14th of May, 2010 was filed on the 17th of May, 2010 but deemed filed on the 1st of November, 2010. By the Amended Notice of Appeal, the Appellants premised their appeal on 4 Grounds. They are hereunder reproduced, but without their particulars:
GROUND 1:
The decision is against the weight of evidence.
GROUND 2:
The learned trial judge erred in law by holding thus:
“Since Exhibits I – O were issued and served of (sic) the plaintiffs after obtaining the resolution of the House of Assembly and the fact that the plaintiffs were paid and received their salaries for month of June, 2003 couple (sic) with my earlier holding that the effective date of the dissolution of the commission was 30/6/03 it means that exhibit ‘H” is no more relevant in this case (as the plaintiffs cannot probate (sic) and reprobate). They can not eat their cake and have it and that the provision of Section 201 was (sic) compiled with in reliving (sic) the plaintiffs of their positions as Chairman and members of the Commission.”
GROUND 3:
The learned trial judge erred in law by holding that the removal of the appellants from office as Chairman and members of Ekiti State Independent Electoral Commission was valid.
GROUND 4:
The learned trial judge erred in law by holding that the appellants were not entitled to receive their salaries and allowances attached to their offices as Chairman and members of Ekiti State Independent Electoral Commission.
From the four (4) Grounds of Appeal, the Appellants distilled the following issues for determination: viz:-
1. Whether the 1st and 2nd respondents who were the Governor as well as the Chief Law Officer of Ekiti State respectively had the powers to dissolve the Ekiti State Independent Electoral Commission.
2. Whether the appellants can be removed by the respondents before the expiration of five years tenure provided for by the 1999 Constitution.
3. Whether the appellants’ acceptance of their salaries for the month of June, 2003 after the purported dissolution of the Ekiti State Independent Electoral Commission by the 1st Respondent precluded the appellants from complaining against their removal as Chairman and members of the Commission.
4. Whether the appellants are not entitled to receive their full salaries and allowances attached to their office as Chairman and members of the Ekiti State Independent Electoral Commission for the unexpired term.
The Respondents filed their Brief of Argument on the 18th of March, 2011 and was deemed properly filed and served on the 11th of April, 2011 vide motion on Notice also dated and filed the 18/03/2011.
Therein, the Respondents formulated two issues for determination as follows:-
1. Whether the 1st Respondent (i.e. the Governor of Ekiti State) has the power to remove the Appellants from office under the 1999 Constitution and the Ekiti State Independent Electoral Commission Law, No. 3 of 2001.
2. Whether the Appellants can be removed by the Respondents before the expiration of five years tenure provided for by the 1999 Constitution and/or whether the removal of the Appellants are justified under the relevant Laws.
The Appellants did not file any Reply Brief.
The Appeal was heard on the 4th day of May, 2011. At the hearing, Mr. Bamidele Omotoso of learned counsel who settled the Appellants’ Brief of Argument, adopted the said Brief of Argument, and urged us to allow the appeal, set aside the judgment of the trial court and grant the reliefs sought by the Appellants. The Respondents’ Brief of Argument was settled by Dayo Akinlaja Esq. of learned Attorney-General for Ekiti State, but as he was absent at the hearing, the said Respondents’ Brief of Argument was deemed as having been argued. Therein, we were urged to resolve the two issues formulated in favour of the Respondents and to dismiss the appeal while affirming the judgment of the lower court.
I have considered the four issues formulated by the Appellants and the two issues formulated by the Respondents. After deep reflection, I am of the view that issues 1 and 2 formulated by the Appellants are similar in context with the two issues formulated by the Respondents.
However, the Respondents neither adopted nor proffered any argument in respect of the issues 3 and 4 formulated by the Appellants. In that respect I prefer the issues formulated by the Appellants and adopt same in the determination of this appeal. I shall also consider the issues in the sequence in which they were argued, but I shall consider issues 1 and 2 together.
In arguing issues 1 and 2, learned counsel for the Appellants contended that, by a letter dated the 2nd June, 2003 entitled “Irregular Appointment and Dissolution of Boards”, the Respondents dissolved all the Commissions in Ekiti State including the Ekiti State Independent Electoral Commission which was confirmed by the learned trial judge in his judgment at page 148 of the record of appeal. He then reproduced Section 197 of the Constitution of the Federal Republic of Nigeria, 1999 which establishes the States Independent Electoral Commissions and further contended that Sections 198, 199 and 201 of the Constitution (supra) provides for the appointment, tenure of office and removal of Chairman and members of the Commission. It was also contended that the fact of the appointment of the Appellants as Chairman and members of the Ekiti State Independent Electoral Commission as deposed in paragraphs 3, 4, 5, 6, 7, 8, 9, 10, 11, 19, 20 and 21 of the Affidavit in support of their originating summons was admitted under paragraph 5 of the Respondents’ Counter Affidavit, and it therefore remains undisputed that the Appellants were so appointed. That considering the provisions of Sections 197, 198 and 199(1)(c) of the 1999 Constitution, the 1st Respondent acted in excess of his powers when he directed the dissolution of the Commission of which the Appellants were Chairman and members respectively. That the Constitution having established the Commission, only the constitution itself could dissolve the Commission.
The case of OJIBARA V. GOVERNOR KWARA STATE (2004) 30 W.R.N. P.26 at P.81 lines 25 – 34 were cited in support. That the only power granted the 1st Respondent in relation to the Commission is the power to constitute the membership in accordance with the stipulations in part II of the Third Schedule to the Constitution.
Mr. Emmanuel Bamidele Omotoso of learned counsel for the Appellants went on to contend that, Section 199 (1) (c) of the 1999 Constitution (supra) provides for the term of office of the Chairman and members of the Commission to be for a period of five years and to ensure security of tenure of the members of the Commission, Section 124(4) of the Constitution provides for their remuneration and that their removal must comply with Section 201 (1) of the Constitution. That as shown by Exhibits I, J, K, L, M, N and O all dated the 11th July,2003 and signed by the Secretary to the Ekiti State Government, it is not in dispute that the Appellants were removed from office. That in purporting to comply with the provisions of Section 201 (1) of the Constitution, the 1st Respondent addressed the Ekiti State House of Assembly on the 6th June, 2003 wherein he adduced two reasons why he sought the approval of the Ekiti State House of Assembly for the removal of the Appellants. It is further contended by the Appellants that those same reasons were further deposed to by the Respondents in paragraphs 5(iv) (xiv) of their Counter Affidavit as justifying the removal of the Appellants from office, which the learned trial judge agreed with.
It is therefore the submission of learned counsel for the Appellants that Section 201 (1) of the 1999 Constitution (supra) provides for only two grounds on which the 1st Respondent can remove the Chairman or members of the Commission, viz:-
(i) Inability to perform the functions of the office (whether arising from infirmity of mind, body, or any other cause), or
(ii) Misconduct.
The case of GOVERNOR OF KWARA STATE V. OJIBARA (2006) 18 N.W.L.R (PT.1012) P.645 at P.654 Paras C – D Per Oguntade; J.S.C was relied on. Learned counsel then contended that the scope of the term of “any other cause” must be read ejusdem generis with infirmity of mind or body. That the term must be taken as analogous to “infirmity of mind or body” but does not extend to any reason that may catch the whims of the 1st Respondent. The dictum of Ikongbe; J.G.A at pages 83 lines 25-45 in the case of OJIBARA V GOVERNOR, KWARA STATE (supra) was cited in support. That in the instant case, the Appellants were removed on the grounds that they did not believe in the philosophy of the administration of the 1st Respondent and the 1st Respondent’s conviction that they are incapable of discharging their functions. It is then submitted for the Appellants that, it has been deposed under paragraphs 4, 5, 6, 7, 8, 9, 10, 11, 12 and 13 of their Further and Better Affidavit that they do not belong to any political party nor have they engaged in any conduct which could render them incapable of discharging their functions as Chairman and members of the Ekiti State Independent Electoral Commission.
It is further submitted for the Appellants that the Respondents have not shown that the Appellants were unable to discharge the functions of their office. That Exhibits I-O do not show any allegation against the Appellants as there is nothing in those Exhibits to show that they were removed for non-performance. That there is also nothing in the address of the 1st Respondent to the Ekiti State House of Assembly suggesting that the Appellants were guilty of any misconduct. That the removal of the Appellants was based primarily on the fact that it was the Governor of Alliance for Democracy (A.D) that put them in place. That, that position of the Respondents is a mockery of the provisions of Sections 199 and 201 (1) of the 1999 Constitution which granted the Appellants a tenure of five years. Relying further on the dictum of Oguntade, J.S.C in GOVERNOR. KWARA STATE V. OJIBARA (SUPRA) at PP.659 – 660 PARAS. F – C, learned counsel for the Appellants submitted that the clear intention of the drafters of the Constitution of the Federation, 1999 on the purpose for granting members of the State Independent Electoral Commission a tenure of 5 years is that, the members are expected to be independent and unbiased in their day to day judgment of affairs and events, and to create in that body continuity and stability in the electoral process and governance.
It is also the submission of learned counsel for the Appellants that, since the appointment of the Appellants were done in accordance with the Constitution of the Federal Republic of Nigeria, their removal must also be in accordance with the provision of the Constitution. That since it is not in doubt that the Appellants were appointed for a period of five years each, the 1st – 6th Appellants were to remain in office till March 2006, while the 7th Appellant was to remain in office till March, 2008.
That the reasons for their removal was untenable and in flagrant violation of Section 201(1) of the 1999 Constitution. Relying further on the case of IGBE V. GOVERNOR OF BENDEL STATE & ANOR (1983) N.S.C.C. P.54 AT P.66 LINES 20 – 25 Per Obaseki, J.S.C, learned counsel submitted that Section 201 (1) of the Constitution does not provide for the removal of the Appellants based on the belief in the political aspirations and philosophy of any Governor or administration, nor does the Constitution provide for the removal of the Appellants based on change of policy. He therefore submitted that the removal of the Appellants was based on Grounds not stated in Section 201(1) of the Constitution, and the 1st Respondent has therefore acted unconstitutionally. We were then urged to resolve these issues in favour of the Appellants.
I had pointed out earlier that the learned Attorney-General for Ekiti State had in his brief of argument for the Respondents formulated two issues for determination, which he argued together. Learned Attorney-General had submitted that the Respondents have the powers to remove the Appellants from their individual offices after following due process as provided for under the 1999 Constitution of the Federal Republic of Nigeria and the State Independent Electoral Commission Law, No. 3 of 2001 . That the contention of the Appellants that the Respondents had no power to dissolve the Ekiti State Independent Electoral Commission is mischievous as the Respondents never dissolved the said Commission but only removed the Appellants from office after following the provisions of the Constitution and the Ekiti State Independent Electoral Commission Law, No.3 of 2001.
The learned Attorney-General therefore contended that, under the 1999 constitution of the Federal Republic of Nigeria, and the Ekiti State Independent Electoral Commission Law, the Appellants could be removed from office in any of the following ways:
(i) Completion of the five years term in office;
(ii) Removal from office by the Governor before expiration of a term of five years pursuant to provisions of Section 199 (2) of the constitution; and
(iii) Removal from office by the Governor before expiration of a term of five (s) years on any of following grounds:-
(a) Inability to discharge the functions of his office by reasons of infirmity of mind;
(b) Inability to discharge the functions of his office by reason of infirmity of body;
(c) Inability to discharge the functions of his office by reason of any other cause; and
(d) Misconduct.
Learned Attorney-General disagreed with learned counsel for the Appellants that “any other cause” in section 201(1) of the 1999 Constitution must be read ejusdem generis with infirmty of mind and body. Those infirmities of mind or body or any other cause are three different grounds envisaged by the 1999 Constitution for removing the Appellants from office. He also relied on OJIBARA v. GOVERNOR, KWARA STATE (2004) 30 W.R.N, and P.26 at PP.63 – 64 lines 25 – 30 for a proper interpretation of Section 201(1) of the 1999 Constitution, and Section 7 of the Ekiti State Independent Electoral Commission Law, and proceeded to submit that, the contention of the Appellants’ Counsel that the scope of the term of “any other cause” must be taken as analogous to “infirmity of mind or body” is totally faulty and misconceived. That it is obvious from the record of this appeal that the 1st Respondent enumerated the reasons that are cogent enough which necessitated the removal of the Appellants from their offices. He referred us to pages 60 – 61 of the record of appeal so as to see the reasons the 1st Respondent enumerated for the removal of the Appellants from their offices. It was therefore submitted that, from the prevailing circumstances at the material time the Appellants were removed from office, there are many causes which though not an affirmity of any kind, but resulted in the inability of the Appellants to function as appropriate in the Commission. That “any other cause” cannot be limited to the infirmity of mind or body, but embrasive as decided in the case of OJIBARA V. GOVERNOR KWARA STATE (2004) 30 W.R.N. P.26 at P.81 lines 25 – 34. It is the further submission of learned Attorney-General that, the 1st Respondent offended no provisions of the Law by presenting an address to the Ekiti State House of Assembly soliciting for the approval of two-third majority of the members so as to remove the Appellants from office for the reasons canvassed before the House. That the House of Assembly is given the power under the 1999 Constitution and the Ekiti State Independent Electoral Commission Law, to approve or not to approve the request of the 1st Respondent to remove the Appellants from office and that the 1st Respondent is not in a position to give reasons or defend the position of the Ekiti State House of Assembly on why the House ratified the removal of the Appellants from office. That it is unfortunate for the Appellants who in their own wisdom did not join the Ekiti State House of Assembly as a party in this suit and that it is very detrimental to their case.
Let me pause at this juncture to state that the joinder or non-joinder of the Ekiti State House of Assembly was never an issue before the lower court and it was never pronounced upon by the learned trial judge. It is not an issue in this appeal and the Respondents never sought the leave of this court to raise same in this appeal. In any case, by virtue of Section 201(1) of the 1999 Constitution, the power of removal of the Chairman and members of the State Independent Electoral Commission rests with the Governor (1st Respondent) and which power he shall exercise only subject to the approval of the State House of Assembly on the required two-thirds majority of the members of the House. He initiates the removal and not the House, and therefore, he has the burden to lay before the House the reasons why the members of the commission should be removed. The 1st Respondent cannot place the blame on the House when things turn out to be awry. It is therefore mischievous for the learned Attorney-General to seek to push the burden on the Ekiti State House of Assembly to give reasons why they approved the removal of the Appellants from office. The House only acts on the reasons laid before it by the Governor in his address.
Now, learned Attorney-General went on to submit that the 1st Respondent followed due process and obeyed the provisions of the Laws to the letters before removing the Appellants from office, and therefore their removal from office was legal and constitutional. That, just as the issue of unquestionable integrity, loyalty, trust, confidence and proper attitude could qualify a person for appointment as Chairman and members of the Ekiti State Independent Electoral Commission, it follows that a lack of or deficiency in any of these attributes could also disqualify a person from such appointment and therefore justify removal from office by the Governor. The case of OJIBARA v GOVERNOR, KWARA STATE (SUPRA) at P.64 lines 20 – 30 was again cited to submit that, functions in office could warrant the removal from office and that any negative attitude in office is tantamount to “any other cause” as stipulated in Section 201(1) of the Constitution. That questionable integrity and the like on the part of the Appellants which would not allow the 1st Respondent to work with the Appellants has been given judicial approval for the removal of the Appellants from office by the Supreme Court in the case of IGBE V GOVERNOR OF BENDEL STATE & ANOR (1983) N.S.C.C. (Case No.14) P.54 at P.59. We were then urged to resolve the two issues in favour of the Respondents.
I begin the resolution of the issues under consideration by stating that, in the determination of those issues, I shall have it at the back of my mind, the dictum of Sir Udo Udoma; J.S.C in the case of NAFIU RABIU V. KANO STATE (1980) 8-11 S.C, P.130 at PP.148 – 149, where he stated thus:-
“‘…….the function of the Constitution is to establish a frame work and principles of government, broad and general in terms, intended to apply to the varying conditions which the development of our several communities must evolve, ours being a plural, dynamic society, and therefore mere technical rules of interpretation of statutes are to some extent inadmissible in a way so as to defeat the principles of government enshrined in the constitution”.
It therefore follows that the primary aim of this court or any other court or tribunal is to do substantial justice. This should be more pronounced in Constitutional matters. That being so, a judge or court interpreting the provisions of the Constitution should always have regard to the background and the social changes which advancement and passage of time have brought in their trail. That is so because no society is static and therefore as society moves from one stage to another changes in the social, cultural, economic and political lives of the people may come with it. It does not however mean that the court should change the words used by the makers of the Constitution. All that is required is for the judge to come to terms with the changing times, even when giving literal interpretation to clear and unambiguous words used in the Constitution. The whole essence is to interpret the Constitution in such a way as to uphold the words used such as to meet the purpose of the framers and the aspirations it holds out for the larger society. In interpreting the provisions of the Constitution therefore, where the language or words used are clear and unambiguous, they must be given their plain meaning. Similarly, in giving effect to the words used, the provisions of the Constitution must be considered as a whole so as not to veer away from the intendment of the framers of the Constitution.
Thus, the provisions of the constitution must not be read in isolation of other parts, but every clause should be read with reference to the context and other clauses so as to make a consistent interpretation of the whole constitution relating to the subject matter under consideration.
See OJUKWU V. OBASANJO (2004) 12 N.W.L.R (PT.886) P.169 at P.197; A.G; LAGOS STATE V. A.G; FEDERATION (2004) 18 N.W.L.R (PT.904) P.1 and FAWEHINMI V. I.G.P. (2001) 7 N.W.L.R. (PT.767) P.606.
Now, from the various affidavits of the Appellants and the Counter-Affidavit of the Respondents, it is not in dispute that the appointment of the Appellants as Chairman and members of the Ekiti State Independent Electoral Commission was made pursuant to the provisions of Section 197 of the 1999 Constitution of the Federal Republic of Nigeria. At least, Exhibits A, B, C, D, E, F and G annexed to the Affidavit in support of the originating summons attest to that fact. It is not in dispute that the 1999 Constitution under which the Appellants were appointed has made provision for the removal of the Chairman and members of the Commission from office, and which removal must be via an address by the Governor to the House of Assembly requesting that such persons be removed. Such address must receive the support of two-thirds of the members of the State House of Assembly before such persons can be removed by the Governor. It is also not in dispute that on the 6th day of June, 2003, the Governor of Ekiti State (1st Respondent) presented an address to the Ekiti State House of Assembly wherein he sought the approval of the House to remove the Appellants from office and the House in a unanimous resolution gave approval to the Governor to remove the Appellants from office. Consequently, the Governor of Ekiti state in the exercise of the powers granted him under section 201 of the 1999 Constitution of the Federal Republic of Nigeria, relieved the Appellants of their appointments with effect from 30th June, 2003, which was communicated to the Appellants vide Exhibits I, J, K, L, M, N and O respectively all dated 11th June, 2003. It is pertinent to point out at this stage that, the 1st to 6th Appellants were appointed in March, 2001 while the 7th Appellant was appointed in March, 2003, and by virtue of section 199(1)(c) of the 1999 constitution, they were to hold their offices for a period of five years from the date of their respective appointments. It is clear from the record of appeal and the arguments of counsel, that the crux of the matter is not that the 13th Respondent did not follow or observe the procedure as stipulated in section 201 (1) of the 1999 constitution in removing the Appellants, but that he removed them for reasons other than those stipulated in the said section 201(1) of the constitution. To understand and articulate the issue better, I propose to reproduce the said section 201(1) of the 1999 constitution. It stipulates thus:
“201-(1) Any person holding any of the offices to which this section applies shall only be removed from that office by the Governor of that state acting on an address supported by two-thirds majority of the House of Assembly of the state praying that he be removed for inability to discharge the functions of the office (whether arising from infirmity of mind or body or any other cause) or for misconduct”.
By the above stated provision of the Constitution therefore, any person holding the office of Chairman or member of the Ekiti State Independent Electoral Commission may be removed from that office by the Governor of Ekiti State due to his inability to discharge the functions of the office, by reason of infirmity of the body or mind or any other cause, or for misconduct. In construing this provision, Mr. Dele Omotoso of learned counsel for the Appellants posited that, “any other cause” in the said Section 201 (1) of the 1999 Constitution must be read ejusdem generis with infirmity of body or mind as “any other cause” is analogous to “infirmity of mind or body”. The learned Attorney-General does not agree with the interpretation given to the phrase “any other cause” by learned counsel for the Appellants. In his view, the infirmity of mind or body or any other cause are three different grounds envisaged by Section 201(1) of the 1999 Constitution for removing the Appellants from office. Incidentally both counsel relied on the same authority of OJIBARA V GOVERNOR: KWARA STATE (SUPRA) cited by both counsel. Learned counsel for the Appellants relied on the dictum of Ikongbe, J.G.A at page 83 lines 25 – 45 of the report where the learned jurist of blessed memory while contributing to the lead judgment said:-
‘If this was all that Mr. Ashaolu meant when he submitted that “any other cause” must be taken as analogous to infirmity of mind or body then in my view, he was right. If however, he meant that “any other cause” must be the same thing in its character as ‘infirmity of mind or body” before it qualifies as a cause empowering the Governor to exercise his power of removal then I must disagree with him. To the latter extent, I would agree with my learned brother where he said in the lead judgment the appellants have placed two restricted an interpretation on the term in this context.
While I do not agree with Attorney-General that the term extends to any reason that may catch the whims of the Governor, at the same time I cannot agree that only a cause that amounts to “infirmity of mind or body” in the context of the provisions. In other words, it is not only ‘infirmity of mind or body” that qualifies as a cause giving the Governor the power to remove. Any cause, which though not an infirmity of any kind, results in the inability of the Chairman and members to function as a corporate body so qualifies”.
I think the interpretation given to the phrase “any other cause” in the said Section 201(1) of the Constitution is not dissimilar with that expressed in the dictum of Mikailu, J.C.A in the lead judgment at pages 63 – 64 lines 25 – 20 relied on by the learned Attorney-General. Therein, it was stated as follows:
“Going by the wordings of Section 201 (1) of the Constitution, the removal is to be for:
“Inability to discharge the functions of the office whether arising from infirmity of mind or body or any other cause or for misconduct.”
What is clear from the above is that the removal must be based on two heads as follows:
1. Inability to discharge the functions of the office whether arising from infirmity of mind or body or any other cause.-
2. Misconduct as defined under section 205(d) of the Constitution.
A careful consideration of the 1st head would disclose that it contains three sub-heads. In the clause within the brackets ‘whether arising from infirmity of mind or body or any other cause the word or, which has appeared therein twice is playing a disjunctive role like the ‘or’ coming before the words “for” misconduct. The two ‘ors’ therein playing disjunctive rather than conjunctive role have made the first head of inability to discharge the functions of the office into three sub-heads, namely:
a. Inability to discharge the functions of the office arising from infirmity of mind;
b. Inability to discharge the functions of the office arising from infirmity of body; and
c. Inability to discharge the functions of the office arising from ‘any other cause’.
Under this head the ground for removal must be for inability to discharge the function of the office. That inability may arise from infirmity of mind or body or inability arising from any other factor outside infirmity of mind or body. Here, one may ask whether it is only from infirmity of mind or body inability to discharge the functions of office can arise. The answer is no. Inability to discharge functions of office may arise from, other factors other than infirmity of mind or body. It would be wrong to hold otherwise as to say any other cause must be analogous to infirmity of mind or body. Therefore in this context inability to discharge the functions of office arising from any other cause should mean inability to discharge the functions of office arising from any negative attitude. Consequently any other cause must mean negative attitude resulting in inability to discharge the functions of office.”
By the dicta expressed in the judgment cited above, it is clear that learned counsel for the Appellants, was in error when he contended that “any other cause” should be or must be read ejusdem generis with infirmity of mind or body. To say that “any other cause” is analogous with “infirmity of mind or body” only means that the “any other cause” must lead to or result in the inability of the holder of the office to discharge the functions of the office. In other words, any circumstance coming under the phrase “any other cause” must affect negatively the ability of the holder of the office in the discharge of the functions of his office. The scope of “any other cause” in the said provision therefore encompasses a variety of factors or situations that may affect the ability of such a person holding the office of chairman or member of the Commission in discharge of the functions of the office. So long as he is unable to discharge the functions of the office he holds, it will suffice for his removal. It is not restricted to infirmities of body or mind. Its scope is wide enough to include all genres of factors which lead to the inability of the holder of the office to discharge the function of the office.
Now, by the record of this appeal, it is obvious that on the 6th day of June, 2003, the 1st Respondent (Governor of Ekiti State) addressed the Ekiti State House of Assembly wherein he sought the approval of the House in order to remove the Chairman and members of certain Executive bodies, including the Ekiti State Independent Electoral Commission. See pages 65 of the record of proceedings. The 1st Respondent gave as his reasons for seeking to remove the Chairman and members of the Commission in the said address. I hereunder reproduce the portions of the address I find as germane to the resolution of the issues:-
“4………..the local government system is the third tier of government and the nearest to the grass root, would have to be democratized in Ekiti State without further delay. In order to attain this lofty objective, government desires to put in place a body which harbours her philosophy of equity, impartiality, objectivity, accountability and transparency in the handling of public affairs. It is the view of government that for the intended local government elections to commend the desired credibility, the institution saddled with the responsibility to conduct elections must be constituted in a manner that will evoke and guarantee the confidence of the public in general and specifically the political parties……..”
5. Similarly, it is the desire of our government to re-organise oriented systems that will meet the yearnings of the populace. Towards this end, there is the need to put in place more dynamic and capable hands that believe in the philosophy of the present administration.
We need people that share our goals and aspirations in this regard.
7. I am convinced that the current Chairman and members of …… Ekiti State Independent Electoral
Commissions……..are incapable of discharging the functions of their offices for some of the reasons stated above. By this address, therefore, and pursuant to the powers conferred on me by section 201 of the Constitution of the Federal Republic of Nigeria, 1999 and all other Laws enabling me in that regard, I solicit your two- third majority support through a resolution of this House to remove the Chairman and members of the following executive bodies:
1. Ekiti State Civil Service Commission;
2. Ekiti State Independent Electoral Commission; and
3. Ekiti State Judicial Service Commission”.
It is clear from the tenor of the address of the 1st Respondent before the Ekiti State House of Assembly as reproduced above, that he did not seek the removal of the Appellants because they are incapable of discharging the functions of their offices due to infirmty of mind or body; or for misconduct. Rather, it would appear that he sought their removal for their incapacity to discharge the functions of their office under the general phrase of “any other cause”. That cause in my view as can be gleaned from the said address of the 1st Respondent can be summarized as the desire of the 1st Respondent to put in more dynamic and capable hands that believe in the philosophy of the administration; and who share the goals and aspiration of that administration. Indeed, the point was made more poignantly in paragraphs 5(iv) to 5(xiv) of the Respondents’ joint Counter Affidavit. The whole gamut of the Respondents’ case therein is that, the Appellants were removed from office because they were appointed as Chairman and members of the Ekiti State Independent Electoral Commission by Otunba Adeniyi Adebayo, based on their loyalty and commitment to him as members of Alliance for Democracy (A.D) and share the same political philosophy, ideology and orientation with him. The Respondents went on depose under paragraphs 5(v) – 5(xiv) as follows:
“5 (V).Throughout the period the 1st to 6th plaintiffs were in office, 22nd April, 2001 to 30th June, 2003, they remained strong, loyal and active members of the Alliance for Democracy in Ekiti State.
(vi) Throughout the period the 7th plaintiff was in office, 5th March, 2003 to 30th June, 2003, he remained a strong, loyal and active member of the Alliance for Democracy in Ekiti State.
(vii) Throughout their time in office, the 1st to 7th plaintiffs in the discharge of their duties, espoused the political philosophy and ideologies of the Alliance for Democracy and executed the programme of the Otunba Adeniyi Adebayo (of A.D) led administration.
(viii) The 1st Defendant, Dr. Peter Fayose was sworn in as the 2nd Executive Governor of Ekiti state on 29th May, 2003 following his success at the polls in the April, 2003 Gubernatorial Elections in Ekiti state.
(ix) The 1st Defendant, Dr. Peter Fayose, contested and won the 2003 Gubernatorial Election on the platform of the Peoples’ Democratic Party (P.D.P) another registered political party in Ekiti State.
(x) The political ideology, philosophy and orientation of the P.D.P and the 1st Defendant is totally at variance with that of the Alliance for Democracy of the 1st to 7th plaintiffs.
(xi) The 1st to 7th Plaintiffs did not believe in the political philosophy, policies and programmes of the P.D.P and the defendants and have maintained a hostile, antagonistic, pessimistic and negative attitude to them.
(xii) The 1st to 7th Plaintiffs because of their political persuasion and negative attitude, cannot be loyal to the defendants, work with them as a team or execute the policies and programmes of the defendants in the state Independent Electoral Commission (SIEC) Ekiti State.
(xiii) On 6th June, 2003, the 1st defendant delivered an Address to the Ekiti state House of Assembly urging the house for a Resolution to remove 1st to 7th- plaintiffs from office on grounds that they neither believe in the philosophy and ideas of his administration nor share its goals and aspirations and as such cannot discharge the functions of their office.”
In a nutshell therefore, the 1st Respondent sought the removal of the Appellants as Chairman and members of the Ekiti State Independent Electoral Commission basically and purely on grounds of political differences. The issue now is whether differences in political persuasions or ideology between a sitting Governor and members of the State Independent Electoral Commission would qualify as “any other cause” as would incapacitate the members of the Commission from discharging the functions of their offices. I think a consideration of the functions of the commission would be helpful in resolving the issue. The functions of a State Independent Electoral Commission are clearly stated in part IIof the Third schedule to the Constitution of the Federal Republic of Nigeria, 1999. Therein, it is enshrined that:-
“4. The Commission shall have power-
(a) to organise, undertake and supervise all elections to local government councils within the state;
(b) to render such advise as it may consider necessary to the Independent National Electoral Commission on the compilation of and the register of voters in so far as that register is applicable to local government elections in the state”.
As the name implies therefore, it is my firm view that the framers of the 1999 Constitution intended to create an independent body, free from political manipulations or interferences from any quarters. It is therefore not in the spirit and intendment of the 1999 Constitution to subject the actions of the Chairman and members of the Commission in the discharge of the functions of their offices to the political ideology, ideosyncracy and persuasion of that of a sitting governor or any other body whatsoever. Infact, such persons once appointed, should be shielded from the actions and desires of politics and the political class, so that they conduct a free, fair and acceptable election, where all the stakeholders will be satisfied. To insist that they carry out the ideology, ideals, philosophy or programmes of a particular political party or keep loyalty to the political desires and aspirations of a sitting governor is, in my view, tantamount to defeating the spirit of the Constitution. Perhaps for illustration and to buttress the independence of a State Independent Electoral Commission, I find it pertinent to reproduce Section 202 of the said 1999 Constitution of the Federal Republic of Nigeria. Therein, it is stipulated that:-
“In exercising its power to make appointments or exercise disciplinary control over persons the State Civil Service Commission, the State Independent Electoral Commission and the State Judicial Service Commission shall not be subject to the direction and control of any other authority or person”.
I totally agree with learned counsel for the Appellants when he submitted that the import of the stipulations in Section 202 of the 1999 Constitution is that the members of the State Independent Electoral Commission are expected to be independent and unbiased in their day to day conduct of affairs and events in the Commission. See GOVERNOR, KWARA STATE V. OJIBARA (2006) 18 N.W.L.R (Pt.10120 P.645 at PP.659 – 660. where the Supreme Court held that the Constitution has granted the Governor tenure of four years, while members of the Independent Electoral Commission are granted five years tenure. That it is a deliberate purpose of the Constitution to create an Electoral Commission, the lifespan of which exceeds those of the Governor and the Legislators, so as to create continuity and stability in the electoral process and governance; so it is not the intendment of the Constitution that the membership of the Commission should change with the fortunes of the political parties in a state.
I think that settles the point on this issue. I only wish to add that, Section 201(1) of the 1999 Constitution does not envisage the removal of the Chairman and members of the State Independent Electoral Commission based on the perceived difference of the members’ political aspirations and philosophy with that of a Governor or any administration.
I do not accept the argument of learned Attorney-General for the Respondents that, the Chairman and members of the Commission could be removed for “disloyalty, distrust between the members and a sitting Governor. It may well be so in respect of Commissioners and members of other executive bodies not coming within the ambit of Section 197 of the Constitution, but certainly not with members of the bodies recognised under Section 197 of the Constitution. It is therefore my view, and I do hold that the reasons adduced for the removal of the Appellants do not qualify as “any other cause” as to incapacitate or has incapacitated the Appellants from discharging the functions of their offices. In any case, the Appellants had deposed in paragraphs 4, 5, 6, 7 , 8, 9, 10 and 11 of the Further and Better Affidavit denying membership of any political party or engaging in any political activity which could render them incapable of discharging the functions of their offices as Chairman and members of the Ekiti State Independent Electoral Commission. Therein they deposed as follows:-
“4. That none of the plaintiffs is a member of any political party, particularly the Alliance for Democracy.
5. That none of the plaintiffs has sympathy for any political party in the state.
6. That the plaintiffs did not at anytime actively or passively support the first Executive Governor of Ekiti State in coming to power on 29th May, 1999.
7. That the plaintiffs’ appointment was based strictly on merit without any political consideration.
8. That none of the plaintiffs shared the same political philosophy, ideology and orientation with the former Executive Governor of Ekiti State.
9. That none of the plaintiffs was an active member of Alliance of Democracy in Ekiti State nor was any remained loyal, strong and committed to the aforesaid party.
10. That none of the plaintiffs executed the programmes of the Otunba Adeniyi Adebayo of Alliance for Democracy led Administration.
11. That none of the plaintiffs has any political ideology, philosophy or orientation, but politically neutral during and after the administration of the first Executive Governor or Ekiti State.’,
Those depositions have therefore effectively countered the accusations of the Respondents against the Appellants. The Respondents were therefore unable to show that the Appellants were unable to discharge the functions of their offices for “any other cause”.
Indeed, the letters, “Exhibits “I-O” do not show that they were being removed because they were unable to discharge the functions of their offices of organising, undertaking and supervising the conduct of free and fair elections to local governments in Ekiti State. Rather, the Exhibits show that they were being relieved of their posts due to the dissolution of the Commission. There is no inkling in those exhibits that they were being relieved or removed for their inability to perform the functions of their offices. Having thus held, I hereby resolve issues 1 and 2 in favour of the Appellants.
The Appellants’ counsel argued issues 3 and 4 together. He began argument on those two issues by adopting his arguments and submissions on issues 1 and 2. He then cited the holding of the learned trial judge on page 154 lines 14 – 21, and contended that, since the removal of the Appellants is unconstitutional, null and void, the 1st Respondent has acted ultra-vires of his powers, and therefore the effect is that the appointments of the Appellants were never terminated. It was further submitted that, once the removal of the Appellants from office as Chairman and members of the Ekiti State Independent Electoral Commission is declared null and void, the acceptance by the Appellants of their salaries for the month of June, 2003 after their purported removal from office cannot render the Respondents’ act valid as decided in the case of U.A.C LTD V. MACFOY (1961) 3 ALL E.R., P.1169. That their removal is void and remains void notwithstanding the Appellants’ acceptance of salaries for the month of June, 2003. He then relied on the case of MILITARY ADMINISTRATOR BENUE STATE & 7 ORS V. ULEGEDE Esq, & ANOR (2001) ALL N.L.R (Reprint) P.389 at P.410 Paras. D – E to submit that, the Appellants are therefore entitled to remain in office until 22nd March, 2000 (for the 1st to 6th Appellants) and 5th March, 2008 (for the 7th Appellant).
Learned counsel for the Appellants went on to submit that, the Appellant did seek before the lower court an alternative relief against the Respondents, which is for the payment of all remunerations due to them till the expected date their respective appointments would expire. That those expected remunerations were itemized under paragraph 38 of the affidavit in support of the originating summons. He however brought it to the notice of this court that, few months after the decision of the lower court and the filing of the Notice of Appeal, the Respondents paid the Appellants part of their entitlements. That the lower court had refused the Appellants’ relief for their allowances and other remunerations. He therefore submitted that, this court has the power to either order the reinstatement or where the reinstatement is not practicable as in the instant case, order the Respondents to pay the Appellants their outstanding salaries and allowances up to the expected date their appointments would expire. The case of UNIVERSITY TEACHING HOSPITAL MANAGEMENT BOARD V. NNOLI (1992) 6 N.W.L.R (Pt.250) P.752 at P.768 PARAS. A-B was cited in support. We were then urged to resolve issues 3 and 4 in favour of the Appellants and to order the Respondents to pay to the Appellants their outstanding salaries and other allowances for the unexpired term of their offices.
It should be noted that the Respondents did not utter a word in respect of issues 3 and 4 as formulated and argued by the Appellants. In other words, the Respondents did not respond at all to those issues. By virtue of order 6 rules 4(2) of the Court of Appeal Rules, 2007, a respondent has a duty to answer all material points of substance contained in the Appellant’s brief of argument and all points raised therein which the respondent wishes to concede as well as reasons why the appeal ought to be dismissed. Consequently, where a point is made in the appellant’s brief and which point is so crucial that it can determine an issue in the appeal, it becomes incumbent on the respondent to respond to, controvert or challenge same. In a circumstance where respondent’s counsel is not in a position to controvert or challenge the point so made, he should at least as a minister in the temple of justice be courageous enough to concede to the point. This would no doubt save the court valuable time and resources. Thus, every material point in an appellant’s brief which is not countered in the respondent’s brief is deemed to have been conceded to the appellant by the respondent. See F.B.N PLC. V. AKINYOSOYE (2005) 5 N.W.L.R (PT.9181) P.340: IDIATA V. EJEKO (2005) 11 N.W.L.R (PT.936) P.34.9: T.G.F.A (NIG) LTD V. M.L. LTD (2005) 17 N.W.L.R (PT.953) P.70: SHONA-JASON LTD. V OMEGA AIR LTD. (2006) 1 N.W.L.R (Pt.960) P.1 and EIGBE V. N.U.T. (2008) 5 N.W.L.R (PT.1081) P.604. The Respondents having failed totally to respond to the Appellants’ issues 3 and 4 and the arguments of the Appellants in that regard, are deemed to have conceded to the Appellants the point or points canvassed therein. Being that as it is, I only wish to add that, in a situation such as this, where the Chairman and members of a body or Commission created by the Constitution are removed in violation of the Constitution or the statute creating same, the Court will be quick and ready to order for their reinstatement. However, in a situation where reinstatement is not appropriate or possible, the Court may award damages in lieu of reinstatement. See U.N.T.H.M.B. V. NNOLI (Supra) cited by learned counsel for the Appellants. See also OLANIYAN V UNIVERSITY OF LAGOS (NO.2) (1985) 2 N.W.L.R (Pt.9) P.599: IGBE V GOVERNOR: BENDEL STATE (1983) 1 S.C.N.L.R. P.73: GOVERNOR: EKITI STATE V. OJO (2006) 17 N.W.L.R (PT.1007) P.95: ADEBAYO V. O.A.U.T.H.C.M.B (2000) 9 N.W.L.R (PT.673) P.585. In the instant case, the Appellants had asked for the alternative relief that all their salaries and other allowances for the unexpired term of their office be paid to them. The respective remaining or outstanding salaries and allowances have been tabulated at pages 4 to 6 of the affidavit in support, though learned counsel for the Appellants disclosed to this Court at pages 22 – 23 of the Appellants’ Brief of Argument that the Respondents had paid to the Appellants part of the entitlements enumerated in the affidavit. The balances remaining unpaid were also tabulated at page 23 of the said Appellants’ Brief of Argument. That is what they are entitled to as their outstanding salaries and allowances. I grant this alternative relief because it is clear, due to the effluxion of time, that it is no longer practicable to order the reinstatement of the Appellants. Having thus held, I resolve issues 3 and 4 in favour of the Appellants.
In the final analysis, I am of the view, and do hold that this appeal has merit. It therefore succeeds and is accordingly allowed.
Consequently, prayers 1, 2, 3 and the alternative prayer 5 sought in the originating summons are hereby granted. Prayer 4 is refused for the reasons that it is impracticable perform. I award Thirty Thousand Naira (N30, 000.00) as cost in favour of the Appellants jointly and severally.
UWANI MUSA ABBA AJI, J.C.A.: I have had a preview of the lead judgment just delivered by my learned brother H.M. Tsammani, J.C.A. The main contention in the appeal is the removal of the Appellants from their offices as chairman and members of the state Independent Electoral commission by the 1st Respondent which they argued contravenes section 201 (1) of the 1999 constitution in that the constitution does not envisage the removal of the chairman and members of the state Independent Electoral commission based on perceived difference of the members political aspirations and philosophy with that of the Governor.
My learned brother, Tsammani, JCA has dispassionately considered and exhaustively dealt with this issue and all issues raised in the appeal to the extent that I have nothing more to add. I therefore adopt same as my judgment. I hold that the appeal has merit and it is hereby allowed by me.
I endorse the consequential order as to costs.
CHIDI NWAOMA UWA, J.C.A.: I have read the draft of the judgment delivered by my learned brother, HARUNA M. TSAMMANI, J.C.A.
He has painstakingly reviewed and resolved the issues raised in this appeal and I agree with his reasoning and conclusion arrived at in holding that this appeal has merit, and allowing same. I will only chip in a few words in respect of prayer four (4) sought in the originating summons which his Lordship rightly refused. In prayer four, the appellants sought an injunction restraining the respondents from treating their appointments as having come to an end or appointing other persons to replace them. In resolving issue one, and from the court’s records, there is no dispute that the chairman and members of the commission’s tenures would have ended on 22nd March, 2006 and in respect of the 7th Appellant 5th March, 2008. The appellants’ appointments had a definite term of office of five (5) years pursuant to S. 199(c) of the 1999 Constitution of the Federal Republic of Nigeria, from the date of appointment, same had expired. As at the date the amended Notice of Appeal dated 14/5/10 was filed on 17/5/10, deemed filed on 1/11/10 based on which the appeal was determined, the appellants’ various terms of office had expired.
The provision of the constitution and their appointment letters did not indicate or make provision for extension of tenure under any circumstances, and the learned counsel to the appellants did not refer us to any other law that permits us to do so. The appellants’ various appointments as chairman and members of the commission ended on 22/3/06 and 5/3/08 respectively.
Also, nature abhors vacuum, their various offices could not have been left vacant and not functional while waiting for their action to be determined, and this would have paralyzed the commission. The prayer sought in paragraph (4) before the trial court ceased to be a live issue when the appellants’ various terms of office of five (5) years ended. The appellants cannot be restored to the offices from which they were removed, even though granted prayers 1-3. See, the recent decision of this court in AKINTUNDE V. YINKA, (2011) 5WRN P. 114 at 141 and AKEREDOLU V. AKINREMI (1986) 2 NWLR (PART 25) 710 at 725: (1986) 4 S.C 352; 1986 1 NSCC 183: 1986 S SCNJ 71. It is for these and the fuller reasons comprehensively dealt with in the leading judgment, that I also allow the appeal. I abide by the order made as to costs.
Appearances
Bamidele Omotoso Esq. (A.A. Adeleke (Mrs.) For Appellant
AND
Respondents are absent and unrepresented. For Respondent
