DR. AKANBI ADEWOLE & ORS v. ATTORNEY-GENERAL AND COMMISSIONER OF JUSTICE OF ONDO STATE & ORS (2014)

DR. AKANBI ADEWOLE & ORS v. ATTORNEY-GENERAL AND COMMISSIONER OF JUSTICE OF ONDO STATE & ORS

(2014)LCN/7500(CA)

In The Court of Appeal of Nigeria

On Monday, the 3rd day of November, 2014

CA/B/60M/2004

RATIO

APPEAL: ISSUES FOR DETERMINATION; WHETHER A PARTY SHALL NOT RAISE MORE THAT ONE ISSUE FROM A GROUND OF APPEAL

CONSTITUTIONAL LAW: CONSTITUTIONAL RIGHTS; WHETHER CONSTITUTIONAL RIGHTS CAN BE WAIVED
There must be shown proof of the compliance with the Constitution, as it is akin to a Constitutional provision for a “trial” though in a civil proceedings wherein a decision involving Constitutional rights and civil obligations and duty exist.
The law is that such a right cannot be waived or acquiesced therein. It is a constitutional right which is similar or in the nature of a public right wherein public duty is imposed by law in the interest of society and the polity. It cannot be held to have been waived, or condoned. It is not a right for the benefit of the Appellants. Perse. See R. Aniori & Ors v. Muraino B. D. Elemo & Ors (1983) 1 SC 13 pg.19-20 (1983) 1 SC NLR 1. per. MOHAMMED AMBI-USI DANJUMA, J.C.A.

JUSTICES:

MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria

MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria

JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria

Between

1. DR. AKANBI ADEWOLE
2. CHIEF S. A. IDRIS
3. CAPT. VINCENT OYEPATA
4. APOSTLE OGUNDANA EMMANUEL
5. CHIEF OGUNWALE
6. MRS. AYO ELIZABETH
7. CHIEF ALABI MOSES – Appellant(s)

AND

1. ATTORNEY-GENERAL AND COMMISSIONER OF JUSTICE OF ONDO STATE
2. PROFESSOR A. FATUYI
3. CHIEF BISI OGUNDIPE
4. DR. A. O. OPEKE
5. HONOURABLE OLA EKE
6. MR. FEMI TOMIWA – Respondent(s)

MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of the Ondo State High Court of Justice sitting at Akure in Suit No. AK/56/04 delivered on the 24th day of March, 2004.

In the said suit commenced by an originating summons dated 9th March, 2003 and filed on the 9-3-2004, the Appellants herein had claimed against the Defendants thereat, including the only Respondent (subsisting) now, (i.e. the Attorney-General and Commissioner for Justice, Ondo State certain reliefs and upon an application for the determination of the following Questions and Declarations to wit):

1. “Whether the Plaintiffs as members of the State Independent Electoral Commission are entitled to continue in office for a period 5 years from the date of appointment unless otherwise removed in accordance with the provisions of section 201(1) of the Constitution of the Federal Republic of Nigeria, 1999.
2. Whether the purported removal from office of the plaintiffs on or about the 30th day of May, 2008 by the Defendant is in accordance with section 201(1) of Constitution of the Federal Republic of Nigeria 1999.
3. Whether the purported constitution and/or appointment of the 2nd to 6th Defendants as members of the State Independent Electoral commission is ultra vires the powers of the Ondo State Government, unconstitutional, null and void.
4. Whether a person can be appointed in place of any of the Plaintiffs unless and until such a plaintiff has completed his tenure or been removed from office in accordance with section 20(1) of the Constitution.
5. Whether the 2nd to 5th Defendants appointed as members of the Ondo State Independence Electoral Commission upon the unilateral removal and/or dismissal from office are constitutionally disentitled to the office.
6. Whether the compilation and updating of the Ondo State’s voters’ register which shall include the names of all persons entitled to vote in any Local Government Election is a condition precedent to the conduct of Local Government Election in Ondo State.

And the Plaintiff seeks the following declarations:

“1. A declaration that the Plaintiffs as members of the State Independent Electoral Commission are entitled to continue in office for a period of 5 years from the date of appointment of each of them unless otherwise removed in accordance with the provisions of section 201(1) of the Constitution of the Federal Republic of Nigeria, 1999.
2. A declaration that the purported removal from office of the Plaintiffs on or about the 30th day of May, 2003 by the Ondo State Government represented by the Defendant is inconsistent with section 209(1) of the Constitution of the Federal Republic of Nigeria 1999 and is accordingly void and of no effect whatsoever.
3. A declaration that the purported constitution and/or appointment of the 2nd to 6th defendants members of the State Independent Electoral Commission is ultra vires the powers of the Ondo State Government, unconstitutional, null and void.
4. A declaration that no person can be appointed in place of any of the Plaintiffs unless and until such a plaintiff has completed his tenure or been removed from office in accordance with section 201(1) of the Constitution.
5. A declaration that the present membership of the Ondo State Independent Electoral Commission unconstitutionally constituted are disentitled to the office having regard to the Constitution of the Federal Republic of Nigeria 1999.
6. A declaration that the compilation and updating of the register of voters which shall include the names of all persons entitled to vote in any Local Government Election is a condition precedent to the conduct of Local Government Election in Ondo State.
7. A perpetual injunction restraining the Defendant, its agents, functionaries, servants or appointees to the Ondo State Independent Electoral Commission from interfering with the tenure, office, rights, privileges or duties of the plaintiffs, howsoever or whatsoever while in office.
8. A perpetual injunction restraining the Defendants by their agents, representatives or appointees to the Ondo State Independent Electoral Commission from carrying on or carrying out the work of the Plaintiff Commission regarding election into Local Government offices of Ondo State howsoever whatsoever.
9. An order of court invalidating the appointment of members of Ondo State Independent Electoral Commission made on or about 30th May, 2003 by the government of Ondo State upon the unilateral and arbitrary termination of the Plaintiffs right to office”
10. An order of court returning the Plaintiffs to office as Commissioners of Ondo State Independent Electoral Commission with rights, privileges duties, responsibilities whatsoever or howsoever.
11. An order of court directing that the compilation and updating of Registry of voters be compiled before the conduct of the Local Government Election in Ondo State.”

FACTS OF THE CASE

The case of the appellants is as stated in the affidavit IN support of the originating summons. But in summary it is as follows:

The Appellants were appointed as Constitutional employees to the Ondo State Independent Electoral Commission at various times by the government of Ondo State that ended its tenure on May 29th, 2003. That the last tenure of the newest appointee i.e. 4th appellant under section 199(1) (c) should constitutionally end in February 2007 (See; Records P.13).

On or about 30th day of May, 2003 less than 24 hours after the new government came into power it was without any notice in writing, oral communication or official or formal information Of any type, announced on the air-waves the removal of all Appellants from constitutional office. Immediately thereafter the government of Ondo State appointed the 2nd to 6th Respondents as members of Ondo State Independent Electoral Commission in place of the Appellants. Appellants from the date of removal made all efforts to find out and resolved the unlawful removal through negotiation until January 2004 (see Records at p. 24).

In view of lack of positive response from the government of Ondo State after series of negotiation meetings, Appellants by way of originating summons dated 9th March, 2004, initiated the cause of action against the Respondent with affidavit of urgency.

On 17th March, 2004 the matter was heard and on 25th March, 2004 the learned trial Judge dismissed the cause of action on the ground that Public Officers Protection Law Cap 103 debars Appellants from initiating this action, consequently that the Court lacked jurisdiction.

At the trial, the Learned Judge thereat, His Lordship A. O. Akinwalere, J having taken the addresses of respective learned counsel for the parties and after a perusal of the summons and all the supporting documentary annextures thereto the affidavit of the parties; and in particular having considered a Notice of Preliminary Objection on points of law filed by Counsel to the Defendant, C. K. Akinsola, Esq. in the following terms:-

“TAKE NOTICE that the Defendants/Applicants intend at the hearing of this suit to rely on the following preliminary objection on the grounds and particulars herein contained:

GROUNDS

1. That the court lacks the jurisdiction to entertain this suit

PARTICULARS

(a) That this suit was not initiated or constituted according to the due process of Law.
(b) That the mode of commencement of this suit is inappropriate as material facts in this case are in dispute.
(c) This suit contravenes the Public Officers Protection Law of Ondo State i.e. Cap 103 Section 2(a.)
(d) This suit occasions:
(1) a misjoinder of parties
(2) a misjoinder of causes of action (therefore the suit is incompetent)
(e) The originating summons does not disclose common interest of the Plaintiffs
(f) This suit discloses no reasonable cause of action against the Defendants.
(g) The 1st Plaintiff has not authorized Dr. Tunji Abayomi or any other Counsel to institute this action.
(h) The 2nd-8th plaintiffs lacks the Locus stand to institute this action.

RELIEFS SOUGHT

(I) That this suit be struck out with substantial cost in favour of the Defendants”.

At its hearing of 17-03-2004 whereat Hon. D. I. Kekemeke Honourable Attorney-General and Commissioner of Justice Ondo State Leading C. K. Akinsola, Director Civil Litigations, Ministry of Justice, Ondo State argued in favour of the preliminary objection and Dr. Tunji Abayomi with him Ezeanozie Ugochukwu, Ewuzie Maduka and S. I. Azagu for the Plaintiffs/Respondents, the court proceeded to hold inter alia thus:-

“Pursuant to S.74 of the Evidence Act, I take Judicial Notice of S.197 and S. 201 of the Nigerian Constitution 1999 and as this is the only ground on which the respondents can be removed before the expiration of their term I hold that the Attorney General who is the Chief Law Officer who it is apparent is representing the interest of the state in the said removal of the Respondent acted pursuant to the said provisions mentioned immediately above.

As I said earlier in this ruling if the objection of the defendants/applicants on the fact that this action is statute barred succeeds them, there is no need for me to consider the other ancillary matters of non joinder or misjoinder of parties.

I have no doubt in my mind that the applicants in this case were sued for an act done pursuance or (sic) execution of an act or law of any public duty or authority.

In view of the matters I am of the considered view that the plaintiffs/respondents action was caught by the provisions of the Public Officers (Protection) Law Cap 103 Vol. V. Laws of Ondo State 1978. This preliminary objection on point of Law succeeds and it is upheld. This suit is dismissed. I make no order as to costs.”

Dissatisfied, with this Ruling/Judgment dismissing the suit as done above, the Plaintiffs/Appellants have lodged the instant appeal and upon the Ground set out in the Notice of Appeal contained at pages 61-62 of the record of Appeal and reproduced herein under as follows:

“3. THE GROUND OF APPEAL

The learned trial judge erred in law when he dismissed the plaintiff action on the ground that the Public Officers’ Protection Law section 2 (a) Laws of Ondo State Cap 103 is a bar to the action of the plaintiffs.

PARTICULARS

(i) The plaintiffs were appointed to the Ondo State Independent Electoral Commission at various time by the government of Ondo State that ended its tenure on May 29th, 2004.
(ii) Under section 199(1) (c) each plaintiff is guaranteed a constitutional tenure of a period of five years from the date of appointment.
(iii) On or about 30th day of May the government of Ondo State announced on the airwaves the removal of all plaintiffs from Constitutional office.
(iv) The government of Ondo State thereafter appointed the 2nd to 6th defendant as members of Ondo State Independent Electoral Commission in place of the plaintiffs.
(v) Heretofore no letter, notice, formal information of removal has been communicated to the plaintiffs.
(vi) Plaintiffs from the date of removal made all efforts to resolve the problem through negotiations.
(vii) In view of lack of positive response from the government of Ondo State Plaintiffs by an originating summons dated at 9th March, 2004 initiated the cause of action against the defendants supported with affidavit of urgency.
(viii) The court only set the case for hearing on 17th March, 2004.
(ix) The court gave a ruling on 25th March, 2004 dismissing the cause of action on the ground that Public Officers Protection Law Cap 103 debars plaintiffs from initiating this action.

RELIEFS SOUGHT FROM COURT OF APPEAL:-

(i) An order setting aside the decision of the trial court delivered on 25th of March, 2004.
(ii) An order directing that the cause of action be heard by a different Judge of the High Court of Ondo State”.

By motion on Notice dated 2-6-14 which was moved and granted on 15-10-14, the Honourable Court granted the Appellants’ application to have the names of the 2nd to 6th Respondents struck out of the suit. This was granted on 15-10-14.

I should also observe that, in the record of appeal transmitted, there is a Motion on Notice for amendment of the Notice of Appeal.

It was filed on 20-2-12 but was not moved nor referred to in the brief of Argument adopted by the Appellants at the hearing. So also a motion dated 29th March, 2004 and filed 30/4/2004. They are deemed abandoned.

Although, there was no application made for the appeal to be heard on the Appellants’ Brief of Argument alone, let alone considered one way or the other, ultimately there was proof (?) of hearing Notice on the lone Respondent, who did not appear.

The Appellants’ Brief of Argument was adopted on 15-10-14 and the appeal argued accordingly.

The Appellants formulated 4 (four) Issues from the single Ground of appeal which he filed. This would appear to amount to proliferation of Issues.

The law is that parties shall not raise more than one Issue from a ground of appeal.
See Unilorin v. Oluwadare (2003) 3 NWLR (Pt. 808) 557; Williams v. Adebayo (2012) LPELR-7940 CA; Nwarskwo v. Yar’Adua (2010) 12 NWLR (Pt. 1209) 518 (SC). However, a calm perusal of the Appeal and in particular the judgment vis-Ã -vis the Grounds of Appeal shows that a lone issue can be reformulated from the 4 issues as proliferated in this appeal, as all the 4 issues stem from the Notice of Appeal and Judgment appealed.

I am, however not unaware that the issue of jurisdiction as formulated in issue Number 4 i.e. “Whether the court was right in declining jurisdiction” can be taken at any level of proceedings. However, in the 4 issues as raised, the jurisdictional issue can be encapsulated as it is in the issue whether the action of the Plaintiffs/Appellants was statute barred at the trial court thus stripping the said court of jurisdiction to entertain same. I am however tempted, to reason that the Appellants Counsel merely engaged himself in an parrying repetition of arguments. The issues will in the circumstances be considered but resolved on the merit by me, as neither the issues nor the argument thereon are incompetent. See Stantoil Nig. Ltd v. Inducom (Nig.) Ltd 2014 9 NWLR (Pt. 1411) 43 @ 98 per Ogunwumiju, JCA.

For the above, I shall consider all the issues of the Appellants seriatim; as argued, so that the Justice of the matter may be arrived at.

Firstly, Appellants argued Issues 1 and 2 together and in this manner;

That the Appellants were constitutionally entitled to a term of 5 years in office as commissioners of the Ondo State Electoral Commission by virtue of S.199 (1) of the 1999 Constitution which provides inter alia thus:

(a) – (in applicable)
(b) – (in applicable)
“(c) in the case of a person who is a member otherwise than as an ex-officio member or otherwise than by virtue of his having previously held an office, for a period of five years from the date of his appointment.”

The Learned Counsel for the Appellants submitted that the appellants could only be removed or have their constitutionally tenured appointment truncated or brought to an end pursuant to S. 201 of the 1999 Constitution, which provides for removal only upon an address of the Governor presented on grounds of inability to discharge the functions of the office. Whether arising from infirmity of mind or body or any other cause and upon the support of such an address by a two-third majority of the State House of Assembly that he be so removed; that the uncontroverted affidavit evidence, particularly paragraphs 8 and 9 thereof of the originating summons had disclosed that the removal was without prior Notice, allegation, information, complaint or advice but simply on a sudden announcement on radio on or about 30th day of May, 2003, they having spent only a part of their tenure.

That the removal was not therefore the act of a particular individual and could not be ascribed to the Attorney General, the 1st Defendant/1st Respondent, who was only sued in a representative capacity.

That the Appellants who claimed the enforcement of their Constitutional right under S.201 of the 199 Constitutiona cannot have that right delimited by any legislation other than the Constitution itself.

The cases of A-G Abia v. A-G Federation (2002) FWLR (Pt. 101) 1419; A-G Bendel State v. A-G Federation (2001) FWLR (Pt. 65) 448 were referred.

Section 6 (6) of the 199 Constitution relating to the Judicial powers of the courts was also relied upon.

RESOLUTION OF ISSUES 1 AND 2 AS ARGUED.

There is no doubt that there was a complaint against non-compliance with the Constitution. Counsel urges that a complaint against a violation of a right to due process under S. 201 of the 1999 Constitution is a public right violation issue which cannot be taken away or prevented by any law.

I agree absolutely with the Appellants that a public right, more so a Constitutionally guaranteed right and its procedure of protection or departure there from under the Constitution is sacrosanct and may only be departed from as allowed or as stipulated under the Constitution, as compliance thereto is mandatory for any legal efficacy and validity. See S. 6(6) of the 1999 Constitution.

This argument, however, appears academic as far as the Appellants grouse is not whether the Limitation of Action Law of Ondo State can take away the Appellants’ right to the enforcement of their 5 year Constitutional tenure.

The Judgment appealed from did not in any case deny the Appellants’ right to sue in protection of their secured tenure; but however held that the right of action would appear to have been defeated, as the A-G sued must have acted in the cause of duty and in good faith.

On the whole, I do not think that the Limitation Law has taken away the right to assert a Constitutional Right. What it has done is to provide that the assertion of such a Constitutional right or any right for that matter must be done within a limited period of time.

The Appellants, have not, in any case, called for a nullification of the said Limitation law by a case stated, on ground of a Constitutional violation or inconsistency.

Issues 1 and 2 are however resolved in favour of the Appellants.

ISSUE 3

On Issue No 3, it was argued that the Public Officers’ Protection Law is subject to the Constitution as S. 6(6) of the Constitution prefixes the provision thus – “shall extend not withstanding anything to the contrary………”

It was also argued as relevant to the said Issue No 3 that there was no action by any public officer in the matter on appeal as the announcement of the Appellants, removal was done less than 24hrs after the new Government came to power and before the new Government could be said to have appointed its public officers such as commissioners for approval. Referring to paragraphs 7 – 11 of the affidavit in support of the originating summons (at pg. of records).

That the act of announcement and purported removal was therefore malicious and not an act done in pursuance or in execution or intended execution of any law or public duty or authority.

That the announced removal was at least a continuing injury which the Appellants did everything to resolve. See page 21-35. It was also argued that even if the removal or announced dissolution of (OAIEC Independent Electoral Commission) constituted an action by a public officer, can the action nevertheless be debarred by the Public Officers Protection Law? Learned Counsel argued that the action subsisted for the exercise of the Lower Court’s Jurisdiction on the grounds that;

1. The Public Officers Protection Law is not designed to protect actions in bad faith. Referring to the case of Nwakwere v. Adewumi (1960) 1 ALL NLR.
2. That abuse of power or malice will not be protected by the Public Officers’ Protection Law. Lagos City Council v. Ogunbiyi (1969) 1 ALL NLR 297 @ 299 referred (Note that the Appellants’ Counsel did not cite the Appellant or of Plaintiff’s name in full as he Quoted) “Lagos City” and omitted “Council” thereat. Ofoboche v. Ogoja Local Government (2001) FWLR (Pt. 68) 1051.

That the Appellant had shown by paragraphs 7 – 18 of the Affidavit in support of the originating summons thereof, proof of bad faith, malice and abuse of office.

Finally it was submitted that there was no act done in pursuance of law or public duty; and that even if there was, the dissolution within 24 hours of the new Government had shown Malice, bad faith and abuse of office and thus deprived the Defendants/Respondents of the protection of section 2 (a) of the Public Officers Protection Law, Cap 103 Vol. V. Laws of Ondo State, 1978.

ISSUE 4

On this issue, it was argued that it was wrong of the trial court to have declined Jurisdiction as that refusal amounted to abuse of the Constitution and constituted an injury to the Constitution; which the Appellants were entitled to.

In conclusion, this court has been urged to hold that the Public Officers Protection Law, Cap. 103 does not limit the right of a person to assert a Constitutionally prescribed right against the Government because the Constitution takes precedence over any other law or enactment.

Finally, that since the action of the government is a continuous injury and since the public officers protection law is designed to protect the officer who acts in good faith and not officers who act in malice or bad faith this court should set aside the decision of the lower court and order hearing afresh by a different Judge of the High Court of Ondo State.

An appeal entails the re – hearing of the entire case. This, an Appellate Court will do where the complaint is that the decision is perverse in that there was no legal basis or factual basis for the same. In some instance, the task is made easier by a disclosure of a deficiency even on the face of the record; and where it may show that Justice has not been done in a case. See Lawal v. Adekeye (1974) 6 SC 83; Balogun v. Akanji (1985) 1 FWLR (Pt. 70) 301; Nsirim v. Nsirim (2001) FWLR (Pt. 96) Pg. 433 @ 445.

On the face of the record, of this appeal, the Appellants by their affidavit evidence in support of their originating summons made several averments relating to the fact that their appointment was protected and preserved for a 5 year tenure Constitutionally and to be determined only upon the satisfaction of certain conditions and in a particular Manner and by acts of both the Governor and the House of Assembly.

There was no counter affidavit to the averments made; and to the precipitate truncation of tenure as averred on oath.

In spite of the above situation, the learned trial court proceeded to speculate when he held that the fact that the Attorney-General and Commissioner for Justice was sued, was evidence of the fact that the act of truncation of tenure was an official act done in good faith and in the public interest. See page 16 of the Record of Appeal wherein the trial court held inter alia thus:-

“Pursuant to S.74 of the Evidence Act I take Judicial Notice of S.197 and 201 of the Nigerian Constitution 1999 and as this is the only ground on which the respondents can be removed before the expiration of their term I hold that the Attorney-General who is the Chief Law Officer who is apparent in representing the interest of the state in the said removal of the respondent (sic) acted pursuant to the said provisions mentioned immediately above.”

The above findings are not supported by any evidence on the record of Appeal. Neither the Hon. Attorney-General nor any other Defendants/Respondents then so plead or submit; nor could any such evidence be inferred without threading on the fringe/pith of speculation. Speculation is not the function or duty of a court or Judge.
Since those finding and conclusion there from are not related to any evidence not derivable there from, they must be set aside. See Ogundulu v. Chief Olabode Phillips (1973) 2 SC 71. See recently, the dictum of Ogunbiyi, JSC in Gbemisola v. Bolarinwa (2014) 9 NWLR (Pt. 1411) @ 41-43 A-B.
The trial court neither appraised the facts, nor evaluated the available evidence proffered by affidavit, but merely proceeded peremptorily on assumption. This court has a duty to interfere with the conclusion arrived at.
To do Justice in any matter, it is the duty of the trial court to consider all the evidence proffered by all the parties, ascribe value to them, make definite findings of fact, apply relevant law and come to a conclusion. See Abubakar v. Joseph (2008) 13 NWLR (Pt. 1104) page 307 and Stanoil (Nig) Ltd (supra) @ 80 (H). Having made a general and extrinsic panaromic view and conclusion why the impugned Judgment cannot stand, I shall now proceed to consider whether, the action was statute barred assuming it was performed by a public officer in the execution of public duty.

It is the statement of claim or originating process that determines whether an action is statute barred or not. See Stanoil (Nig) Ltd v. Inducom (Nig) Ltd supra (CA). The Plaintiffs/Appellants filed their suit on 9-3-2004 in respect of a purported removal on 30th day of May, 2003, a period of 10 month 9 days, well beyond the 3 months stipulated for the bringing of an action against public officer acting in or purporting to act in the official realm and in good faith. The computation of the period commences from the discovery of the wrong.
The Plaintiffs/Appellants discovered the wrong upon the announcement complained of and series of entreaties were futilely made to the State Governor for the payments of entitlements consequent the botched 5 – year tenure. Williams v. Williams (2008) 10 NWLR (Pt. 1095) 364 @ 383 is to the date of the commencement of computation based on date of discovery of fraud.

In the instant matter, there was no concealment of the wrongful act! Not withstanding the above diagnosis of the scenario in this matter and the law, I am strongly inclined to think that the Constitutional provisions for the mode of removal of the Appellants from their protected tenure of 5 years demanded that even the alleged act of the Attorney-General or participation cannot validate it eopso facto.
There must be shown proof of the compliance with the Constitution, as it is akin to a Constitutional provision for a “trial” though in a civil proceedings wherein a decision involving Constitutional rights and civil obligations and duty exist.
The law is that such a right cannot be waived or acquiesced therein. It is a constitutional right which is similar or in the nature of a public right wherein public duty is imposed by law in the interest of society and the polity. It cannot be held to have been waived, or condoned. It is not a right for the benefit of the Appellants. Perse. See R. Aniori & Ors v. Muraino B. D. Elemo & Ors (1983) 1 SC 13 pg.19-20 (1983) 1 SC NLR 1.

It is in this wise that I see the declarations Nos. 1 and 2 of the Plaintiffs/Appellants as contained in page 2 of the record of appeal as desirable demands. I should however observe that though a court is not an investigator but an unbiased umpire, this court sought to find out at the hearing of this appeal from learned counsel for the Plaintiffs/Appellants, Dr. Olatunji O. Abayomi, Esq. If “F. Ewuzemo” inscribed above his name in the originating summons is a signature or a signing by one Ewuzemo for him. He appeared to have claimed the insignia as his signature and without any controversy; so shall it be, as relating the competence of the originating summon in the circumstances, this presumably competent suit raises a violation of a Constitutional right and duty.

Issue No. 3 of the Appellant is, however sought to be justified by dwelling on speculations. Speculative arguments and conclusions are what I can see in the arguments of Appellants’ Learned counsel on Issue No. 3.

I fail to understand how, the termination of a secured appointment within 24hrs or any shorter period of a new Government can logically be taken to be evidence of bad faith or as malice. Malice must be pleaded and proved as Neither can the short duration, Quick or immediacy of action be proof of not acting within public duty or in execution or intended execution thereof by a New Government. In the same way, it cannot be logically and sensibly contended that “no public officer acted” as announcement over the radio in respect of which the Appellants responded or reacted by a suit speaks for itself. An announcement is not by a ghost. It has an origin and sponsor. In any case, if there was no act done, why then the suit, culminating in this appeal?

It is speculative to argue that it was the Attorney-General who “acted” and “In bad faith”, as there is no evidence on the record to support any of those assertions – that the Attorney-General acted and in any way or Manner/Animus. Be that as it may, the Governor, who is by law imbued with power under the instant Constitutional law, has not been shown not to have been the one who acted in person or through any other officer. Though the reasoning and arguments on Issue 3 is, with respect, fluid in several respects, my conclusion is that the issue No 3 has merit and is resolved in favour of the Appellants. That is to say, the action of the Respondents does not come under the Public Officers Protection Law.

I find and hold that Issue 4 ought, also to be resolved in favour of the Appellants as proceeding to hold that the action was covered by the Public Officers Protection Act and thus striking same out, was in the circumstance, an abdication from a Constitutional duty by the trial court.

Before concluding, I must observe that the record of appeal in this matter, compiled and transmitted by departure from the Rules by Reliance on a bundle of documents to be deemed properly transmitted appears incompetent as the motion for same appears to have been signed for Dr. Olatunji Abayomi.

In the same manner there appears to be an incompetent motion for injunctive orders dated 29th March, 2004 and filed 30-3-04 as it is signed by an unidentified and unnamed person for Dr. Tunji O. Abayomi. The Notice of Appeal is to the same effect, but “Coldly” admitted by counsel as being regularly signed by him. I, therefore, so presume for all the processes that have loudly agitated my mind supra. Having, however resolved all the issues in favour of the Appellants, the appeal, per force is meritorious and succeeds.

Accordingly, it is my Judgment that the decision of the trial court delivered in suit No. AK/56/04 on 25th March, 2004 be set aside and quashed for perversity and miscarriage of Justice. In its stead, I grant the Appellants’ counsel’s prayer for the restoration of the said suit to the cause list of the Ondo State High Court of Justice to be heard by a different Judge on its merit. This court would have simply granted the Declaratory reliefs prayed for as 1 and 2 in the originating summons as contained on page 2 of the Record of Appeal, but shall refrain from so doing because by the nature of the orders entered and the reasoning thereof the trial court had not determined the suit on its merit to enable a review on the merit – thereof by this court. Expeditious hearing of the originating Summons in this matter as filed shall, however, be under taken by a Judge to be assigned by the Honourable Chief Judge of Ondo State as he may, please.

Appealed is Allowed.
Costs – No costs awarded.

MOJEED ADEKUNLE OWOADE, J.C.A.: I was privileged to read, in draft, the lead judgment of my learned brother Mohammed Ambi-Usi Danjuma, JCA. I agree entirely with him that the appeal has merit and ought to be allowed. I too allow the appeal, the judgment of the trial court is also hereby set aside.

I abide by the consequential order(s) contained in the lead judgment.

JAMES SHEHU ABIRIYI, J.C.A.: I had the privilege of reading before now the draft of the Judgment just delivered by my learned brother MOHAMMED A. DANJUMA, JCA.

I too agree that the judgment of the Lower Court in suit No: AK/56/2004 be set aside. Since the suit was not determined on the merits by that Court, it is hereby remitted to the Hon. Chief Judge of Ondo State to be reassigned to another Judge for expeditious hearing.

Appearances

Dr. Olatunji Abayomi For Appellant

AND

Respondent served, but not represented by counsel For Respondent