GOVERNOR, EKITI STATE & ANOR V. CHIEF FEMI AKINYEMI & ORS
(2011)LCN/4672(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 5th day of July, 2011
CA/AE/2/2011
RATIO
CAUSE OF ACTION: DEFINITION OF THE WORD “CAUSE OF ACTION”
The Black’s Law Dictionary, 8th Edition defines a “cause of action” as “A group of operative facts giving rise to one or more bases for suing, a factual situation that entitles one person to obtain remedy in court from another person. A situation or state of facts that entitles a party to maintain an action in a judicial tribunal”, This definition has been given judicial backing in a plethora of decisions by the courts in Nigeria. See EGBE VS. ADEFARASIN (1987) 1 NWLR (PT.47) 1 SC: OGBIMI VS OLOLO (1993) 3 NWLR (PT.304) 128 @ 136: BELLO VS A. G. OYO STATE (1986) 5 NWLR (PT.45) 828: P. N. UDOH TRADING CO. LTD. VS ABERE (2001) 11 NWLR (PT.723) 114. A cause of action therefore, is the entire set of circumstances giving rise to an enforceable claim. It is the fact or combination of facts, which gives rise to a right to sue and it consists of two elements, viz, the wrongful act of the defendant which gives the Plaintiff his cause of complaint; and the consequent damage. See the following; A. G. FEDERATION VS ABUBAKAR (2007) 10 NWLR (PT. 1041) 1 S.P.D.C. VS. X. M. FEDERAL LTD. (2006) ALL FWLR (PT, 3391 822. PER UWANI MUSA ABBA AJI, J.C.A.
CAUSE OF ACTION: HOW TO DETERMINE WHETHER OR NOT A SUIT DISCLOSES A CAUSE OF ACTION, AND THE RELIEF SOUGHT; WHETHER ONCE IT IS SHOWN THAT THE STATEMENT OF CLAIM RAISES SOME ISSUES OF LAW OR FACT CALLING FOR DETERMINATION BY THE COURT, THE MERE FACT THAT THE CASE IS WEAK AND NOT LIKELY TO SUCCEED IS NOT GROUND FOR STRIKING IT OUT
In order to determine whether or not a suit discloses a cause of action, and the relief sought, the courts are required to examine the averments in the pleadings and see if they disclose a cause of action. Once the statement of claim raises some issues of law or fact calling for determination by the court, the mere fact that the case is weak and not likely to succeed is not ground for striking it out. Thus a pleading can only be said to disclose no cause of action where it is such that nobody can understand what claim the defendant is required to meet. See the following:- IDACHABA VS ILONA (2007) 6 NWLR (PT. 1030) 277: NICON INSURANCE CORP. VS OLOWOFOYEKU (2006) 5 NWLR (PT.973) 244. In NISSAN NIG. LTD. VS YOGANATHAN (2010) 4 NWLR (PT. 1183) 135 at 157 – 158, Mukhtar, J.C.A., relying on the decision of the Supreme Court in DANTATA VS MOHAMMED (2007) 7 NWLR (PT.664) 176 at 196 – 197 paras. H – A, defined cause of action thus: “The phrase cause of action means simply a factual situation the existence of which entitles one person to obtain a remedy against another person. It is a fact or combination of facts which when proved would entitle a Plaintiff to a remedy against a defendant. It consists of every fact which could be necessary for the Plaintiff to prove if traversed; in order to support his right to judgment of the court. That is the fact or combination of facts which give rise to a right to sue” The well laid down position of the law is that once the statement of claim discloses some cause of action or raises some questions of fact or law fit to be decided by the Judge, then the fact that the case is weak and/or unlikely to succeed is no ground for striking out the suit. PER UWANI MUSA ABBA AJI, J.C.A.
CAUSE OF ACTION: WHEN CAN IT BE SAID THAT A PLAINTIFF HAS NO REASONABLE CAUSE OF ACTION IN A SUIT
It is thus trite that the preposition that a Plaintiff has no reasonable cause of action can only be made upon an examination of the facts pleaded in the Statement of claim, and in the instant case upon the Originating Summons and the affidavit in support. It has nothing to do with the nature of the defence which a defendant may have to the Plaintiff’s claim. The averments in the Originating Summons and the affidavit in support is the assessment whether or not the Plaintiff has reasonable cause of action. See SHELL PETROLEUM DEVELOPMENT CO. OF NIGERIA LTD, VS ONASANYA (1976) 6 SC @ 94. PER UWANI MUSA ABBA AJI, J.C.A.
ISSUES FOR DETERMINATION: WHETHER IT IS ON THE BASIS OF ISSUES THAT THE PARTIES FOUND THEIR CONTENTION IN AN APPEAL
It is now elementary that only issues are argued on appeal and not the grounds of appeal because it is on the basis of the issues that the parties found their contention. See INNOCENT OZIMS vs. ANORUO (1993) 3 NWLR (pt. 181) 571 @ 579: BAMGBOYE VS. OLANREWAJU (1991) 4 NWLR (PT.184) 132 @ 152: and SADIQ VS. AKINKUNMI (2000) 18 WRN 164 @ 170: (2001) 2 NWLR (PT.696) 101 @ 109. PER UWANI MUSA ABBA AJI, 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. GOVERNOR, EKITI STATE
2. ATTORNEY GENERAL, EKITI STATE Appellant(s)
AND
1. CHIEF FEMI AKINYEMI
2. BOSUN OSHUNTOKUN
3. JIDE EGUNJOBI
4. J. B. AMIRA
5. DELE AJIBOLA
6. BAMISAIYE DADA
7. OLU ALE Respondent(s)
UWANI MUSA ABBA AJI, J.C.A. (Delivering the Leading Judgment): The Respondents herein, who were the Plaintiffs at the Ado-Ekiti Division of the High Court of Justice, Ekiti State, in Suit No: HAD/119/2010, took out an Originating Summons dated the 1st day of November, 2010, against the Appellants (Defendants at the High Court) for the determination of the following questions:-
1. Whether the Plaintiffs who are the Chairman and members of the Ekiti State Local Government Service Commission constituted under the Local Government Service Commission law can be removed or their tenure terminated and the Commission dissolved by the Defendants otherwise than in accordance with the provisions of the Local Government Service Commission Law, No.2 of 2000.
2. Whether the Defendants, who are the Executive Governor of Ekiti State and the Chief Law Officer of the State, have the powers to dissolve the Ekiti State Local Government Service Commission and thereby relieve the Plaintiffs of their appointments without regard to Sections 3(1) and 4(1) of the Ekiti State Local Government Service Commission Law, No.2 of 2000.
3. Whether the Defendants are not bound by the aforesaid provisions of Ekiti State Local Government Service Commission Law No.2 of 2000 which established the Ekiti State Local Government Service Commission in their actions and decisions concerning the Plaintiffs.
4. Whether the purported dissolution of the Ekiti State Local Government Service Commission and termination of the appointment of the Plaintiffs as Chairman and members respectively by a general radio announcement was a violation of the provisions of Sections 3(1) and 4(1) of the Ekiti State Local Government Service Commission Law No.2 of 2000 and is hereby ultra vires and null and void.
5. Whether the Radio announcement by the Defendants on the 22nd day of October, 2010, dissolving all Commissions, Boards and Parastatals in Ekiti State is not ultra vires null and void in so far as it relates to the Plaintiffs.
Whereof the Respondents (Plaintiffs) claimed against the Appellants (Defendants) the following reliefs:-
1. A DECLARATION that the purported dissolution of the Ekiti State Local Government Service Commission and termination of the Plaintiffs’ appointment as Chairman and Members of the Commission by the Defendants alongside all other Commissions, Boards and Parastatals vide a radio announcement on the 22/10/2010 is unlawful, wrongful, illegal, ultra vires, null and void against the rules of natural justice and of no effect whatsoever.
2. AN ORDER setting aside the purported dissolution of the Ekiti State Local Government Service Commission.
3. AN ORDER of injunction restraining the Defendants from treating and/or regarding the appointment of the Plaintiffs as Chairman and Members respectively of Ekiti State Local Government Service Commission as having come to an end, and/or appointing other persons to replace them before the end of their 3 year tenure as guaranteed by Sections 3(1) and 4(1) of the Ekiti State Local Government Commissions Law No.2 of 2000.
4. AN ORDER re – instating the Plaintiffs as Chairman and Members of the Ekiti State Local Government Service Commission forthwith and restoring to them all other rights, perquisites and entitlements of their offices.
OR IN THE ALTERNATIVE
5. AN ORDER of payment to the Plaintiffs the total of all remunerations due to them up till and including 11th day of February, 2011.
Attached to the Originating Summons is a 29 paragraphed Affidavit, deposed to by Mr. Jide Egunjobi (the 3rd Respondent/Plaintiff) and to which was attached Exhibits A, B, C1, C2, D and E.
The Respondents also filed a motion on Notice, dated the 1st day of November, 2010 for:-
AN ORDER OF INTERLOCUTORY INJUNCTION restraining the Defendants their servants, agents and/or privies from constituting any other Local Government Service Commission or appointing anybody as Chairman and members of Local Government Service Commission pending the final determination of the substantive suit herein. The motion on notice was supported by a 29 paragraphed Affidavit deposed to by Mr. Jide Egunjobi (3rd Plaintiff/Respondent) and to which was also attached Exhibits A, B, C1, C2, D, E, F, and G.s.
On the 18th day of November, 201 0, the Appellants (Defendants) filed a Notice of Preliminary Objection, contending that the Lower court lacks the jurisdiction to entertain the action and same is liable to be struck out in limine.
The grounds upon which the objection was brought is that –
1. The Plaintiffs/Respondents has no cause of action.
2. The action is incompetent before the court, and
3. The action is frivolous, vexatious and therefore incurably incompetent and defective.
The Affidavit in support of the Preliminary Objection was filed on the 19th day of November, 2010 deposed to by one Seun Olayinka, containing seven (7) paragraphs and to which was attached Exhibits AG1 -AG 10.
On the 19th day of November, 2010, the court ordered that Written Address be filed by both counsel to the Originating Summons as well as the Notice of Preliminary Objection. On the 22nd day of December, 2010, parties adopted their Written Addresses and judgment was reserved. See pages 1 – 103 of the Records.
In a considered judgment, the learned trial judge, Hon. Justice A. K. Fowe, on the 17th day of January , 2011, found in favour of the Respondents, and granted all the reliefs sought by them, except prayer No.4, which sought for reinstatement of the Respondents into their respective positions in the Local Government Service Commission of Ekiti State but instead granted the ALTERNATIVE RELIEF sought for the payment of their full entitlements up to and including the 11th day of February 2011, when their 3 – year tenure would have expired.
Being aggrieved by this decision, the Appellants filed two notices of appeal on the 18th day of January, 2011 and on the 9th day of February, 2011 respectively. However, the Notice of Appeal dated 5th February, 2011 and filed on the 9th day of February, 2011 was predicated upon Eight (8) grounds of appeal from which the Appellants’ Brief of Argument was filed.
The Grounds of Appeal, without their particulars are hereby reproduced:-
1. The Learned trial Judge erred in Law in holding that the Plaintiffs/Respondents had a cause of action in this case.
2. The learned trial Judge misdirected himself on the facts of this case by holding thus.
“The defendants depose that the Plaintiffs were not appointed pursuant to the said Law (Local Government Service Commission Law) and they attached Exhibits AG 1 to AG 8 and attached also Exhibits AG 9 and AG 10 to show that the Plaintiffs appointment were different from those of their predecessors in office. I humbly disagree with the learned counsel to the defendants. Both the Plaintiffs and their predecessors were appointed under the same law i.e. Local Government Service Commission 2000,”
3. – The Learned trial Judge erred in law in holding thus:
“I hold that the word (sic) “the appointment is at the pleasure of the Governor pleased” is merely a supplusage and has no effect on the appointment of the Plaintiffs which has been stated in the said letter as being under the Local Government Service Commission. The said words, I hold cannot rub (sic) or displace the appointment… I dare say that whether it is under the pleasure or displeasure of the Governor will not matter once the appointment is made under Local Government Service Commission Law of 2000.”
4. – The Learned trial Judge erred in Law in holding that the appointments of the Plaintiffs enjoyed statutory flavor sequel to which His Lordship declared the termination of the appointment of the Plaintiffs by the 1st Defendant/Appellant as unlawful, wrongful, illegal, ultra vires, null and void.
5. The Learned trial Judge erred in Law in overruling the contention of the Appellants that the Respondents should have led evidence to show that their appointment were regularly made in compliance with the Local Government Service Commission Law.
6. The Learned trial Judge erred in Law in holding that the dissolution of the Ekiti State Local Government Service Commission was null and void.
WHEN
1. There was no evidence of such dissolution.
2. The Commission was not a party to this action.
7. The learned trial Judge erred in law in granting an order of injunction restraining the Defendants/Appellants from treating and/or regarding the appointments of the Plaintiffs/ Respondents as having come to an end and/or from appointing other person(s) to replace them before the end of three years prescribed in the Ekiti State Local Government Service Commission Law No.2 of 2000.
8. The Judgment is against the weight of evidence.
In line with the practice of this court, briefs of arguments were filed and exchanged by learned counsel representing the parties to the appeal. The Appellants briefs, of argument, settled by Dayo Akinlaja Esq., Hon. Attorney General, Ekiti State, dated the 24th day of February 2011, was filed on the same day while the Respondents Brief of argument settled by Obafemi Adewale Esq., dated the 10th day of March, 2011and filed on the 11th day of March 2011. The Appellant’s Reply Brief to the Respondents’ Brief is dated and filed on the 16th day of March, 2011.
The Appellants’ distilled two (2) issues for determination from the eight (8) grounds of appeal at page 5 of the Appellants’ Brief of Argument. Issue one was distilled from Ground One while Issue two was distilled from Grounds Two – Eight. The Issues for determination which were adopted by the Respondents in their Brief are to wit:-
1. Whether the Learned trial Judge was not wrong in holding that the Respondents had a cause of action in this case.
2. Whether the learned trial Judge was not wrong in giving judgment to the Respondents in the light of the facts and circumstances of this case
The Briefs of Argument were adopted and relied upon by learned counsel as their submissions in support of their respective positions in the appeal at the hearing of the appeal on the 12th day of April 2011. The Learned counsel for the Appellants expanciated his argument and urged the court to allow the appeal while the learned counsel for the Respondents also expanciated his argument and urged the court to dismiss the appeal.
In arguing ISSUE ONE to wit:
“Whether the learned trial Judge was not wrong in holding that the Respondents had a cause of action in this case”.
Learned counsel for the Appellants, the Hon. Attorney General began his argument by defining the phrase “cause of action” as defined in Black’s Law Dictionary, 8th edition. He submitted that this phrase has often – times received judicial interpretation at the apex court in this country. He cited the following authorities:
EGBE VS ADEFARASIN (1987) 1 NWLR (PT.47) 1 SC:
RINCO CONSTRUCTION CO. LTD. VS VEEPEE/NO LTD. (2005) 3.4 SC1 AT 3-5;
OGBIMI v. OLOLO (1993) 7 NWLR (PT.304) 128 AT 136:
NOSIRU BELLO & ORS. VS A.G. OYO STATE & ORS. (1986) 5 NWLR (PT.45) 828.
The Hon. Attorney General submitted further that it is beyond dispute that in determining whether a case discloses cause of action vel non, it is the originating processes filed by the Plaintiff(s) that would be singularly cognized. This case being instituted by way of Originating Summons, the summons and the supporting affidavit would have to be looked into for the purpose of determining whether or not a cause of action is disclosed in the case. He cited and relied on the following authorities.
NISSAN NIG. LTD. VS YAGANATHAN (2010) A NWLR (PT 1183) 149 at 154:
SHELL B.P. PETROLEUM DEVELOPMENT COY (NIG) LTD. & ORS. VS ONASANYA (1976) NSCC 33: and
DANTATA VS MOHAMMED (2000) 7 NWLR (PT.664) 176 at 196 – 197.
He submitted also that the letters of appointment of the Respondents were “at the pleasure of the Governor” and “graciously” approved by the Governor.
According to him, from the various judicial decisions and authorities, the phrase ’cause of action’ denotes the presence of two elements, (a) the wrongful act of the Defendant which gives the Plaintiffs cause of complaint and (b) the subsequent damage to the Plaintiff.
It is his view that from the affidavit in support of the Originating Summons and the Exhibits attached thereto, the Appellants herein did not commit any wrongful act in relieving the Respondents of their appointments and as such, there is nothing that gives the Respondents cause to complain. Moreover, the Respondents herein could not justifiably claim to have suffered any damage on account of the termination of their appointments by the 1st Appellant.
The Learned Attorney General opined that since the letters of appointment of the Respondents show that the appointments of the Respondents were graciously approved and made to subsist at the pleasure of the Governor, the import is that the Governor could terminate their said appointments at will. He argued that the Respondents could not justifiably argue that they have suffered any damage since they know all along that they were holding their appointments at the pleasure of the Governor.
According to the learned Attorney General, no cause of action can arise from an appointment held at the pleasure as the appointment lacks any legal value. He cited the case of OLANIYAN & ORS. VS UNIVERSITY OF LAGOS & ANOR (1985) ALL NLR 363 at 363 at 365 – 369: and submitted that where there is no cause of action, a case must be struck out for want of jurisdiction. He relied on the case of CHEVRON (NIG) LTD. VS LONESTAR DRILLING (NIG) LTD. (2007) ALL FWLR (PT. 386) 633 at 641 – 642. He urged this court to answer this issue in the affirmative.
In his response, learned counsel to the Respondents Mr. Obafemi Adewale, Esq, contended that the Appellants’ counsel is wrong to say that the Respondents had no cause or reasonable cause of action at the lower court.
He submitted that by the definition of “cause of action” in Black’s Law Dictionary, 8th edition as well as the decided cases of:-
P. N. UDOH TRADING COMPANY LTD. VS SUNDAY ABERE & ANOR (2001) FWLR (PT.57) 900 AT 916 – 917 H – A: or (2001) 11 NWLR (Pt.723 114:
EGBE VS ADEFARASIN (No.1) (1985) 1 NWLR (Pt.3) 549:
PHCN VS ALABI (2010) 5 NWLR (PT. 1186) 65 at 83 B – F.
DIN CHUKWUEMEKA OJUKWU VS ALH, UMARU MUSA YAR’ADUA (2009) 38 NSCQR 492 at 565 A – D, a cause of action is said to accrue when there is a party who can sue and another to be sued and all facts which are material to ensure the success of the pursuer exist. He relied further on the following cases; HENRY STEPHENS ENGINEERING LTD. VS. S. A. YAKUBU (NIG) LTD (2009) 38 NSCWQR 39 @ 404: NISSAN (NIG) LTD. VS YAGANATHAN (2010) 4 NWLR PT.1183 @ 154: SHELL B.P. PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LTD VS. ONASANYA (1976) 6 SC @ 89: DANTATA VS MOHAMMED (2000) 7 NWLR (Pt.664) 176 @ 196 – 197, and contended that the two elements that must co-exist before a cause of action can arise already exist in the case of the Respondents herein and that the letters of appointment which indicated that the Respondents were appointed to the Local Government Service Commission, (at the pleasure of the Governor) cannot operate independent of the living provisions of Sections 3 and 4 of the Local Government Service Commission Law No.2 of 2000. He relied on the case of OLUFEAGBA VS. ABDULRAHEEM (2009) 18 NWLR (Pt.1173) 384 at 453F-G.
He argued further that the removal of the Respondents, who it is submitted held appointments tinted with statutory flavor without complying with the procedures prescribed for removing them in line with the provisions of the Local Government Service Commission Law, led to the wrongful act of the Appellants which vested the Respondents with the requisite cause of action.
Learned counsel further opined that, notwithstanding the superfluous clauses in the letters of appointment, the Respondents were public officers whose tenure enjoyed statutory flavor and where a public officer is removed in a manner inconsistent with the statutory provision that binds his employer, he has a cause of action. He relied on the following authorities.
UNIVERSITY OF MAIDUGURI TEACHING HOSPITAL MANAGEMENT BOARD VS DAWA (2001) 16 NWLR (Pt. 239t 428 at 448.
OLANIYAN VS UNIVERSITY OF LAGOS (1985) 2 NWLR (Pt.9) 599.
EPEROKUN VS UNIVERSITY OF LAGOS (1986) 4 NWLR (PT.34) 162 at 196.
SALVAGE & ORS. VS UWECHIA (1972) 1 ALL NLR (Pt 1) 251 at 256.
CHEVRON NIG. LTD VS LONESTAR DRILLING NIG. LTD, (2007) ALL FWLR (Pt.386) 633C-F.
Mr. Obaferni Adewale, Esq, concluded that by the plethora of authorities, it is plain that the Respondents’ case disclosed a cause of action and that the trial court was right to hold that it had jurisdiction to entertain the Respondents’ case. He therefore urged this court to resolve this issue in favour of the Respondents.
In his reply, the learned Attorney General for the Appellants contended that the fulcrum of the Appellant’s contention on this issue is that the “appointment at pleasure” lacks legal value and cannot confer cause of action as held by the Supreme Court in OLANIYAN & ORS. VS UNIVERSITY OF LAGOS & ANOR (1985) ALL NLR at 365 – 369. ACCORDING to him, since the letters of appointment carry “appointment at the pleasure of the Governor”, the submission that the Respondents had tenure appointment flies in the face of reality.
This court is therefore urged to discountenance the submissions of the Respondent on issue one.
It is clear from all the submissions of learned counsel on this issue that the crux of the matter is whether or not the Respondents’ suit at the lower court disclosed a cause of action. The contention of the Appellants is that there is no cause of action to confer jurisdiction on the lower court.
The Black’s Law Dictionary, 8th Edition defines a “cause of action” as “A group of operative facts giving rise to one or more bases for suing, a factual situation that entitles one person to obtain remedy in court from another person. A situation or state of facts that entitles a party to maintain an action in a judicial tribunal”,
This definition has been given judicial backing in a plethora of decisions by the courts in Nigeria. See EGBE VS. ADEFARASIN (1987) 1 NWLR (PT.47) 1 SC: OGBIMI VS OLOLO (1993) 3 NWLR (PT.304) 128 @ 136: BELLO VS A. G. OYO STATE (1986) 5 NWLR (PT.45) 828: P. N. UDOH TRADING CO. LTD. VS ABERE (2001) 11 NWLR (PT.723) 114.
A cause of action therefore, is the entire set of circumstances giving rise to an enforceable claim. It is the fact or combination of facts, which gives rise to a right to sue and it consists of two elements, viz, the wrongful act of the defendant which gives the Plaintiff his cause of complaint; and the consequent damage. See the following; A. G. FEDERATION VS ABUBAKAR (2007) 10 NWLR (PT. 1041) 1 S.P.D.C. VS. X. M. FEDERAL LTD. (2006) ALL FWLR (PT, 3391 822.
In order to determine whether or not a suit discloses a cause of action, and the relief sought, the courts are required to examine the averments in the pleadings and see if they disclose a cause of action. Once the statement of claim raises some issues of law or fact calling for determination by the court, the mere fact that the case is weak and not likely to succeed is not ground for striking it out. Thus a pleading can only be said to disclose no cause of action where it is such that nobody can understand what claim the defendant is required to meet. See the following:-
IDACHABA VS ILONA (2007) 6 NWLR (PT. 1030) 277:
NICON INSURANCE CORP. VS OLOWOFOYEKU (2006) 5 NWLR (PT.973) 244.
In NISSAN NIG. LTD. VS YOGANATHAN (2010) 4 NWLR (PT. 1183) 135 at 157 – 158, Mukhtar, J.C.A., relying on the decision of the Supreme Court in DANTATA VS MOHAMMED (2007) 7 NWLR (PT.664) 176 at 196 – 197 paras. H – A, defined cause of action thus:
“The phrase cause of action means simply a factual situation the existence of which entitles one person to obtain a remedy against another person. It is a fact or combination of facts which when proved would entitle a Plaintiff to a remedy against a defendant. It consists of every fact which could be necessary for the Plaintiff to prove if traversed; in order to support his right to judgment of the court. That is the fact or combination of facts which give rise to a right to sue”
The well laid down position of the law is that once the statement of claim discloses some cause of action or raises some questions of fact or law fit to be decided by the Judge, then the fact that the case is weak and/or unlikely to succeed is no ground for striking out the suit.
In the present case, the combined reading of paragraphs 1 – 25 of the Affidavit in support of the Originating Summons discloses a contractual relationship between the Appellants and the Respondents.
The learned Attorney General for the Appellants made heavy weather on the phrase “gracious approved” and “at the pleasure of the Governor” to contend that no cause of action can arise from an appointment held “at the pleasure” as the appointment lacks legal value and the submission that the Respondents had tenure appointment flies in the face of reality.
The question is, what then is the import of the phrase “Gracious approved” and “at the pleasure of the Governor” contained in the Respondents respective letters of appointment? Would the phrases convey the meaning as argued by the learned Attorney General to mean without any legal value or consequence, or that, it does not give the appointees any legal right to complain, having accepted their appointments at the pleasure of the Governor? Or, it does simply mean that they can be dismissed at will, at the pleasure of the Governor?
The learned Attorney General placed heavy reliance on the case of OLANIYAN VS UNIVERSITY OF LAGOS (supra) to drive home his argument that an appointment “at the pleasure of Governor” means that the appointee could be dismissed graciously at will without recourse to any other thing notwithstanding the law under which the appointment was made. The Respondents would therefore have no cause of action.
With the due respect to the learned Attorney General, this view is a clear misconception of the decision of the Supreme Court in the OLANIYAN VS UNIVERSITY OF LAGOS case and a misapplication of the principle decided therein. The case did not decide that where an employee or appointee holds office at the pleasure could be dismissed at will in that no employee or appointee of Government holds office at the pleasure. There is no appointment that could be at the pleasure of the Governor unless it is a master/servant relationship under the common law, where the master could dismiss the servant at will with or without any reason at all. Infact the ratio decidendi of the case is that where there are clear statutory provisions covering the relationship of master and servant, the only way to terminate the contract of service of the servant is by complying with the procedure laid down in the statutory provisions.
In the instant case, the facts are not in dispute that, before the termination of their appointments by the 1st Appellant vide a radio announcement on the 22nd October, 2010, the Respondents were chairman and members of the Ekiti State Local Government Service Commission and on the strength of their appointments functioned and served in their respective offices until the 22nd day of October, 2010 when their appointments were terminated by the 1st Appellant. Infact their letters of appointments, Exhibits AG1 – AG8 states that they were appointed under the Local Government Service Commission Law No.2 of 2000. This cannot be further from truth.
It is therefore my view that the inclusion of the words “graciously approved’ and “at the pleasure of the Governor” in the Respondents’ letters of appointment does not change the nature of their appointments made pursuant to the provision of the Local Government Service Commission law No. 2 of 2000. The phrase “graciously approved” and “at the pleasure” does not in the circumstances make the Respondents servants of the Appellants that they can dismiss at their pleasure. It is therefore worthless and of no any legal consequence whatsoever.
The Respondents were appointed pursuant to section 3 (1) of the Local Government Service Commission Law No.2 of 2000 and their appointments could only be terminated pursuant to the Provisions of Section 4(1) of the said Law. Their appointments therefore enjoy statutory flavour having been appointed under the Local Government Service Commission Law No.2 of 2000 as chairman and members respectively for 3 year tenure from the date of appointment.
This being the position, the inclusion of the words “graciously approved’ and “at the pleasure” does not in all respect deprive the Respondents of any legal right under the said law under which they were appointed. The fact that the appointees accepted the appointment as such does not make the Respondents ordinary servants employed at the pleasure of the Governor but are statutory servants employed under the law. The 1st Appellant lacked the vires to employ the Respondents inconsistent with the provisions of the law and the law does not give him the power to remove them at his pleasure. See OLANIYAN vs. UNIVERSITY OF LAGOS (supra).
The Respondents having functioned and served in the Commission are therefore entitled to take advantage of the provisions of the Local Government Service Commission Law No.2 of 2000. See OLUFEAGBA VS ABDUL RAHEEM (supra) @ 462. Having come to this conclusion, the fact that the Respondents’ predecessors letters of appointment does not contain the phrase “gracious” and “at the pleasure” does not make the appointments of the Respondents different from that of their predecessors. The argument is of no moment. Therefore the finding of the learned trial judge that the inclusion of the phrase “at the pleasure of the Governor” is a mere supplusage and has no effect on the appointment of the Respondents remain unassailed.
The Respondents by the Originating Summons and the affidavit in support thereof disclosed that they have suffered damage on the account of the termination of their appointments by the 1st Appellant made pursuant to the Local Government Service Commission Law No.2 of 2000. The two elements intrinsic to the exercise of a valid cause of action have been met by the Respondents and the fact that the case is weak or is unlikely to succeed cannot be a ground for striking out the suit.
It is thus trite that the preposition that a Plaintiff has no reasonable cause of action can only be made upon an examination of the facts pleaded in the Statement of claim, and in the instant case upon the Originating Summons and the affidavit in support. It has nothing to do with the nature of the defence which a defendant may have to the Plaintiff’s claim. The averments in the Originating Summons and the affidavit in support is the assessment whether or not the Plaintiff has reasonable cause of action. See SHELL PETROLEUM DEVELOPMENT CO. OF NIGERIA LTD, VS ONASANYA (1976) 6 SC @ 94.
The Facts appear clear. The Respondents’ appointment is in accordance with Section 3(1) of the Local Government Service Commission Law No.2 of 2000. Therefore their removal must also be in accordance with Section 4(1) of the said Law. The purported removal per paragraphs 21 – 25 of the Affidavit in support of the Originating Summons raised some issues of law and/or facts calling for determination by the court.
Accordingly, I hold that the Respondents’ claims at the lower court disclose a cause of action and I therefore resolve this issue in favour of the Respondents and against the Appellants.
Issue 2.
Whether the learned trial judge was not wrong in giving judgment to the Respondents in the light of the facts and circumstances of this case – grounds two – eight.
In arguing the issue, the learned Attorney General for the Appellants submitted, that the learned trial Judge was wrong in giving judgment to the Respondents in the light of the facts and circumstances of this case, though he divided this issue into sub heads, the arguments will be taken together.
However, it is observed that the Appellants having formulated two issues for determination from the eight (8) grounds of appeal filed, issue one is said to be distilled from ground 1, while issue 2 is said to be distilled from grounds 2-8. However, the learned Attorney General for the Appellants instead of arguing issue 2 as formulated, he sub-headed the issues and by so doing argued them by the grounds of appeal. It is now elementary that only issues are argued on appeal and not the grounds of appeal because it is on the basis of the issues that the parties found their contention. See INNOCENT OZIMS vs. ANORUO (1993) 3 NWLR (pt. 181) 571 @ 579: BAMGBOYE VS. OLANREWAJU (1991) 4 NWLR (PT.184) 132 @ 152: and SADIQ VS. AKINKUNMI (2000) 18 WRN 164 @ 170: (2001) 2 NWLR (PT.696) 101 @ 109.
The Respondents’ counsel, Adewale, Esq did not help matters either. He argued the issue clearly on the basis of grounds categorizing them as grounds 2, 3, 4, 5, 6, 7, 8, 9 and 10 respectively and argued them distinctively, extending beyond the Notice of Appeal filed by the Appellants.
The court would, under normal circumstances, discountenance the submissions of learned counsel on the grounds of appeal and allow counsel to re-file, their Briefs. See MACAULAY vs. N.A.L. MERCHANT BANK (1990) 4 NWLR (PT.144) 283 @ 321.
However, in the interest of justice, a useful consideration of the issues for determination already formulated will have to be made against the background facts and circumstances of this case especially the findings of fact by the learned trial judge. Issue 2 is considered accordingly.
The contention of the learned Attorney General for the Appellants is that the Respondents were not appointed pursuant to the Local Government Service Commission Law No.2 of 2000, but at the pleasure of the Governor. He referred to pages 34 and 35 of the Records and submitted that Exhibits AG 9 and AG 10 in the Appellants’ Affidavit at pages 47 and 48 of the Records show that there is a difference between the letters of the Respondents herein and those of their predecessors in office. First, while the appointments of the Respondents are by their letters said to be ‘graciously approved’ those of their predecessors are not so indicated in their own letters. Second, the phrase “at the pleasure of the Governor” contained in the letters of appointment of the Respondents herein is absent in the letters of appointment of their predecessors in office. He therefore submitted that the learned trial Judge was wrong to have held that the Respondents and their predecessors were appointed under the same law.
The Learned Attorney General further submitted that by section 2(2) of the Local Government Service Commission Law, 2000, an appointment made by the Governor into the Commission pursuant to that law must be ratified by the State House of Assembly. It is his argument that the Respondents neither deposed in their affidavit in support of the Originating Summons that their appointments were ratified by the State House of Assembly nor did they exhibit any material(s) to substantiate such ratification by the State House of Assembly. He referred to the case of LIVESTOCK FEEDS PLC VS FUNTUA (2005) ALL FWLR (Pt 256) 753 at 770 – 771 and submitted that the onus is on a supplicant to exhibit material(s) necessary for court to exercise discretion in his favour.
Learned counsel further opined that the phrase “subject to the pleasure of the Governor” was not a mere supplusage, as held by the lower court but a phrase that negates any claim of appointment under the law. He thus argued that the learned trial Judge was wrong to have held that the Respondents and their predecessors were appointed under the same law.
He submitted that the Respondents have a duty to show that the Local Government Service Commission Law applies to their situation to be able to take advantage of it. He referred to the case of IDONIBOYE-OBU VS N.N.P.C. (2003) 2 NWLR (Pt.805) 589 at 620 – 621. He relied also on the case of IYASE VS U.B.T.H. MANAGEMENT BOARD (2000) 2 NWLR (Pt.643) 45 at 58.
It is his view that since the letters of appointment of the Respondents show that the appointment is at the pleasure of the Governor, the parties are bound by the terms of the letters. He referred to the cases of SPDC NIG. ASSOCIATES LTD VS MARCO CONSTRUCTION CO. LTD. (1991) 2 NWLR (PT.174) 411 at 427: LCRN VS NDEFOH (1990) 3 NWLR (PT.491) 72 at 74: EZEKIEL VS WESTMINSTER DREDGING NIG) (2001) FWLR (PT.60) 1564 at
He further submitted that by holding that the phrase was a mere supplusage, the Lower court had invariably set aside the legal effect of the phrase in giving judgment to the Respondents. According to him, the lower court granted a major relief not claimed by the Respondents to them. He referred to the cases of AWOSILE VS SOTUNBO (1992) 5 NWLR (PT. 243) 514; NHDS LTD VS YAYA MUMUNI (1977) 2 SC at 81; MANAGEMENT ENT. LTD V OTUSANYA (1987) 2 NWLR (PT 55) 179 AT 193 SC.
The Learned Attorney General for the Appellants distinguished the following cases with the case at hand:-
SHITTA – BEY VS. FEDERAL PUBLIC SERVICE COMMISSION (1981) 12 NSCC 28:
GOVERNOR EKITI STATE VS CHIEF GEORGE FEMI OJO (2006) 17 NWLR (PT.1007) 105:
ALH. ISSA OJIBARA VS GOVERNOR OF KWARA STATE (2004) 30 WRN 26.
He argues that in none of those cases was the appointment of Plaintiff described as one at the pleasure of the appointing authority. The learned trial Judge therefore mis applied the cases to the instant one. According to him, it is trite that an authority is only applicable where there are no distinguishing factors between it and the case where it is sought to be applied. He referred to INEC vs. RAY (2004) 14 NWLR (PT. 872) 92 at 129; and OKAFOR VS NNAIFE (1987) 4 NWLR (PT. 64) 129 at 137
Learned counsel further argued that it was incumbent on the Respondents to show that their appointments were made in tune with the law and that the lower court was wrong to have held that the court could take judicial notice of laws or enactments and any subsidiary legislation made there under. He referred to the case of IDONIBOYE – OBU vs. N.N. P.C. (supra). IYASE vs. U.B.T.H. M.B. (supra).
It was his further contention that the learned trial Judge was wrong in holding that the dissolution of the Local Government Service Commission was null and void, since there was no evidence of such dissolution before his Lordship. He referred to MUSTAFA vs. MONGUNO LOCAL GOVT. (1987) 2 NWLR (Pt.62) 663 at 665.
He summarized by submitting that the learned trial Judge ought not to have granted the alternative claim of the Respondents for payment of their entitlements for three years, despite having restrained the Appellants from appointing replacements for them during the period of three years and therefore urged this Honourable Court to allow this appeal and strike out/dismiss the case of the Respondents in its entirety.
In his response, learned counsel for the Respondents Obafemi Adewale, Esq, submitted that their appointment being one with statutory flavor, having been appointed under the Local Government Service Commission Law No.2 of 2000 as Chairman and members respectively, for three year tenure, and the Respondents having exhibited their letters of appointment, their termination must also be in accordance with the enabling statute. He referred to the following cases:
U.B.N. PLC VS ASTRA BUILDERS (W.A.) LTD. (2010) 5 NWLR (PT.1156) 1 at 27;
ADEPONLE VS SAIDI (1956) 3 SC 303:
IMANA VS ROINSON (1979) 3 – 4 SCHLR 203:
GEORGE VS DOMINION FLOUR MILLS LTD. (1963) 1 SC NLR 117:
Adewale, Esq, argued that Government is a continuum and that the Respondents were nominated, appointed and were still in the service of the Commission before they were removed by the Appellants. He referred to pages 31 48 of the Records and submitted that pursuant to Section 150(1) and (2) of the Evidence Act, the Government cannot pretend not to know of the existence of these appointments.
Learned counsel further submitted that the issue of propriety or validity of the appointment of the Respondents was not in issue before the Lower court. The issue before the lower Court was the propriety or validity of the removal of the Respondents from their public offices. He submitted also that by virtue of Section 150(2) of the Evidence Act, there is a presumption of the regularity of the Respondents’ appointment. The learned trial Judge was therefore right to have taken judicial notice of the law in the absence of any evidence contrary to the position of the existing statute. Learned counsel therefore submitted that the use of the wards “graciously” and “at the pleasure of the Governor” in the Respondents’ letters of appointment contrary to the letters of their predecessors which contained no such clauses is not enough to vest the 1st Appellant with the power and or authority he did not have to summarily dismiss the Respondents without compliance with the law. He submitted that it is trite that a person cannot give what he has not. That the Respondents having functioned and served on the Commission are entitled to take advantage of the provisions of the Local Government Service Commission law. He cited OLUFEAGBA VS ABDULRAHEEM (2009) 18 NWLR (PT. 1173) 384 @ 462.
Learned counsel for the Respondents further argued that where there is a conflict between an established law or rules (in the instant case, the Local Government Service Commission Law) and contract made by a public body (in the instant case, the Governor of Ekiti State), the former shall; prevail. He referred to the case of UNIVERSITY OF MAIDUGURI TEACHING HOSPITAL MANAGEMENT BOARD vs. DAWA (supra) at page 448.
He also referred to EPEROKUN vs. UNIVERSITY OF LAGOS (supra) @ 196.
Mr. Adewale, Esq, further contended that by virtue of Section (150(2) of the Evidence Act, the onus is on the Appellants or anybody whatsoever who avers any irregularity in the process of appointment where relevant to substantiate such. Learned counsel argued further that the simple test of determining a statutory appointment can be found in the case of C.O.E. EKIADOLOR VS OSAYANDE (2010) 6 NWLR (PT.1191) 423 at 450 – 451.
He relied also on the following cases of IMASUEN vs. UNIERSITY OF BENIN (2010) 3 NWLR (PT.1182) 591 at 613:
DR. TAIWO OLORUNTOBI – OJI & ORS. VS. PROF. SHUAIB O. ABDUL RAHEEM & ORS, (2009) 13 NWLR (1157) 83:
OLANIYAN VS UNIVERSITY OF LAGOS (2004) 15 WRN 4:
EPEROKUN VS UNIVERSITY OF LAGOS (1986) 7SC 106:
BANKOLE VS NBC (1968) 1 ALL NLR 370;
OLATUNBOSUN VS NISER COUNCIL (1988) 3 NWLR (PT.80) 25:
AIYETAN VS NIFOR (1987) 6 SC 7:
GARBA VS UNIVERSITY MAIDUGURI (1986) NWLR (PT.18) 550:
ADENIYI VS GOVERNING COUNCIL OF YABA COLLEGE OF TECHNOLOGY (1993) 6 NWLR (PT. 300) 426. Learned counsel thus submitted that the provision of a statute cannot be waived and parties cannot by conduct or consent alter a statute and substitute same for mere agreement. It has no place in law. The case of OLUFEAGBA vs. ABDUL-RAHEEM (supra) @ 453 was cited. The court was thus urged that the contents of the letters of appointment cannot vitiate the clear provisions of a statute.
Mr. Adewale, Esq, of counsel for the Respondents further submitted that since the power to appoint and remove was vested on the Governor by statute, not withstanding those clauses on the letters of appointment of the Respondents, they can only be removed according to the enabling statute, since the appointments have a statutory flavour. He relied on the cases of SHITTA-BAY VS FEDERAL CIVIL SERVICE COMMISSION (1981) 1 SC 40 at 56, GOVERNOR EKITI STATE VS CHIEF FEMI OJO (2006) 17 NWLR (PT.1007) 105 and ALHAJI AJIBARARA VS GOVERNOR KWARA STATE (2004) 30 WRN 26. His view therefore is that the learned trial Judge’s finding that the termination of the Respondents’ appointment was wrongful and unlawful for non compliance with the Local Government Service Commission Law was unassailable. He referred also to the cases of INAKOJU VS ADELEKE (2997) 4 NWLR (Pt.1028) 423 at 657: GOVERNOR EKITI STATE & ANOR VS CHIEF GEORGE FEMI OJO (2006) 17 NWLR (PT.1007) 105 at 120 – 121.
He therefore urged this court to hold that Section 4(1) of the Local Government Commission Law No.2 of 2000 is a mandatory provision which cannot be truncated. He referred to the following cases;
OBITA VS OKPE (1996) 9 NWLR (PT.473) 401 at 434:
ALH. ISSA OJIBARA VS GOVERNOR OF KWARA STATE (2004) 30 WLR 26:
AGIP (NIG) LTD. VS AGIP PETROL INT’L (2010) 5 NWLR (PT. 1187) 348 at 419;
DR. TAIWO OLORUNTOBA – OJO VS PROF. SHUAIB O. ABDULRAHEEM (2007) 399 NSC QR 105 at 164 – 165:
GOVERNOR KWARA STATE VS OJIBARA (2006) 18 NWLR (PT.1021) at 654.
Learned counsel for the Respondents also argued that the Appellants contentions that the above cited authorities are inapposite to the present case, is wrong because the lower court properly applied the cases. The single thread that runs through all the authorities is that no public authority (and that includes the Governor of a State) has the power or authority to remove a public officer from office other than as prescribed by the Law or statute that sets up such a public authority. He further submitted that by virtue of Section 150(2) of the Evidence Act, there is a presumption of regularity on the appointment of the Respondents. He referred to MALLOCK VS ABERDEEN CORPORATION (1971) AER 1278.
According to learned counsel for the Respondents, the presumption of regularity can only be rebutted by evidence tendered before the trial court and none was tendered by the Appellants.
In conclusion, learned counsel for the Respondents argued that the Lower Court properly granted the reliefs sought and that the grant of the alternative claim of the Respondents for payments of their entitlements cannot be said to be punitive. According to him, Government is a continuum and the authority must act in good faith. He referred to the case Of SAVANNAH BANK OF NIGERIA PLC VS CENTRAL BANK OF NIGERIA (2009) 6 NWLR (PT.1137) 237 at 293 – 295.
He therefore urged this Honourable court to dismiss the appeal, and uphold the decision of the lower court despite the heavy weather made by the Appellants on the phrase “pleasure of the Governor”, since the law is clear that parties cannot contact outside the law governing their relationship.
In his reply, learned counsel for the Appellants argued that it is trite law that extraneous evidence is not admissible to vary, add to or alter the contents of a document. He referred to Section 132 of the EVIDENCE ACT as well as the following cases; UBN vs. OZIGI (1994) 3 NWLR (Pt.313) 385 AT 400: IBULUYU VS DIKIBO (1976) ALL NLR 316 at 324 – 325 OLALOYE VS BALOGUN (1990) 5 NWLR (PT.148) 24 at 39. Since the letters clearly stated that the appointments were at the pleasure of the Governor the issue of their premature removal cannot arise. He referred to the case of OKONGWU VS N.N.P.C. (1989) 3 NSCC 118 at 125: MAERSK LINE VS ADDIE LTD. (2002) 45 SCNJ 433 at 461.
Learned counsel for the Appellants in his Reply further stated that the onus of proof fell on the Respondents to establish their positive assertion that they were appointed in tune with applicable law and not on the Appellants who asserted the negative. He referred to the case of ORJI VS DORJI ILE MILLS NIG. LTD (2009) 12 NJSU (PT. 11) 97 at 145 as well as FAYEMI VS ONI (2010) 17 NWLR (PT.1222) 326 at 386.
Learned counsel further argued that the appointment at the pleasure of the Governor negated any claim of statutory flavour. The cases of: – ARIORI & ORS vs. ELEMO & ORS. (1983) 1 SC 13 at 26 – 27.
OLANIYAN VS UNILAG (supra)
OLUFEAGBA VS ABDUL RAHMEEM (supra)
GOVERNOR EKITI STATE & ANOR VS CHIEF GEORGE FEMI OJO (supra); was distinguished from the case at hand. Whereby in the case at hand, the appointments were made at the pleasure of the Governor, no such phrase was imported into the appointment letters of the cases cited above.
All in all, learned counsel for the Appellants submitted in conclusion that the appointments being made at the pleasure of the Governor negated the claim to statutory flavour and the learned trial Judge was wrong to declare the phrase “at the pleasure of the Governor” a mere supplusage. He therefore urged this Honourable court to discountenance at the pleasure the submissions on the Respondents’ brief as unmeritorious in the face of the circumstances of this case and allow the appeal.
The main contention of the Appellants herein is that the appointment of the Respondents were not made in compliance with Local Government Service Commission law and that by reason thereof, it is not open to the Respondents to avail themselves of the Provisions of the law to secure their appointments. The Learned counsel canvassed this argument on the belief that the Respondents having accepted their appointment ‘graciously’ “at the pleasure of the Governor”, it was too late in the day for them to contend that their appointments could not be terminated at will. In principle the following cases were relied on OYEROGBA vs. OLAOPA (1998) 12 SCNJ 115 at 123: and OLANIYAN & ORS. UNIVERSITY OF LAGOS & ANOR (1985) ALL NLR 363 @ 368 – 369. I have in this judgment considered the import of the phrase “graciously approved” and “at the pleasure of the Governor” contained in the Respondents’ letters of appointment and I have come to the conclusion that it is of no effect. It has no legal consequence on the appointment of the Respondents. The 1st Appellant has no authority to appoint the Respondents outside the provisions of the law. Therefore, appointment “graciously approved” and “at the pleasure of the Governor” contained in the Respondents’ letters of appointment will not deprive the Respondents of any right under the Local Government Service Commission Law, No.2 of 2000. See OLANIYAN J VS UNIVERSITY OF LAGOS (supra).
The Respondents had claimed that their employment enjoys statutory flavour having been appointed under the local Government Service Commission law and that they are entitled to serve as Chairman and Members respectively for a 3 year period from the 12th of February, 2008.
The letters of appointment represent the fulcrum of the relationship between the Respondents and the Appellants.
The question that naturally follows is whether the appointment of the Respondents can be said to enjoy statutory flavour?
In defining an appointment with a statutory flavour, the court held in C.O.E. EKIADOLOR VS OSAYANDE (2010) 6 NWLR (PT.1191) 423 at 450 451 thus.
“……An employment will be held to be tangled with statutory flavour if the employment or contract of service Is one in which the terms or tenure of the employee is protected by either statute or regulation
In BAMIGBOYE vs. UNIVERSITY OF LAGOS (2001) FWLR (PT.32) 12, 10 NWLR (PT.622) 90, the Supreme Court said:
“When an office or employment has a statutory flavour in the sense that its conditions of service are provided for and protected by statute or regulations made thereafter, any person holding that office or in such employment enjoys a special statute over and above the ordinary master and servant relationship…”
It is settled, that where a statute or constitution prescribes a procedure for seeking a remedy or the doing of anything or act and the language used is clear and unambiguous, that is the only procedure open to the parties concerned and any departure there from will be an exercise in futility. See the cases of SYSTEM APPLICATTONS PRODUCT (NIG) LTD. VS. C.B.N. (2004) 15 NWLR (PT.897) 663 at 687.
It is trite that the courts are bound to enforce the mandatory provisions of a substantive law. It is the duty of all courts, to give effect to legislation. Parties cannot by consent or acquiescence or failure to object, nullify the effect of a statute or Constitution. In other words, it is the duty of a court, to enforce mandatory provisions of an enactment. See the case of ADEDEJI VS NATIONAL BANK OF NIGERIA LTD. & ANOR (1989) 1 NWLR (PT.96) 212 at 222.
The question to be asked at this juncture is what are the statutory provisions regulating the appointment and removal of the Respondents.
Section 3 (1) of the Local Government Service Commission Law No.2 of 2000 provides that:
“……A member of the Commission shall, unless he resigns his appointment or is removed, hold office for a period of three (3) years from the date of his appointment and may be reappointed only once”. (Underlining mine)
From the wording of the above cited section, it is evident that the only condition under which the Respondents could vacate office before the expiration of the 3 year tenure is either they resign their appointment or they are removed from office in line with the provisions of the Local Government Service Commission Law, 2000.
In the case of OBETA vs. OKPE (1996) 9 NWLR (PT.473) 401 at 433 – 434 the court held thus;
“The proposition of law that a person appointed to a post for a fixed term by statute has a right to serve out the statutory term of his appointment, I think, is a correct proposition of the law.
He cannot be removed from the office by any person during the period of the term except for misconduct…”
I am of the considered view, that in the light of the foregoing, the Respondents can only be removed from office if the provision of Section 4(1) of the Local Government Service Commission No.2 of 2000 is complied with. The said section provides that:-
“Subject to the provisions of any other law, the Governor may remove any member of the Commission from office-for inability to discharge the functions of his office whether arising from infirmity of mind or body or any other cause or misconduct.”
Contrary to the provision of the section stated above, the Respondents were removed from office, via a Radio announcement on 22nd October, 2010, announcing the dissolution of all Commissions Boards and Parastatals in Ekiti State, including the Local Government Service Commission.
In paragraph 21 of the Respondents Affidavit in support of Originating Summons, the Respondents averred thus:
“That the Defendants, via a Radio announcement on 22nd October 2010 announced the dissolution of all commissions, Boards and Parastatals in Ekiti State including the Local Government Service Commission. ”
This announcement was reported in various newspapers which were marked Exhibits N1 and P1. (See Paragraphs 22, 23 and 24 of the Affidavit attached to the Originating Summons at page 7 of the Record).
Paragraph 25 reads thus:
“That since the publication of the pronouncement, the Defendants have not denied the reports but rather the official/agents and servant of the Defendants have prevented the Plaintiffs from carrying out their official functions. The said officials, agents and/or servants have also severally requested the Plaintiffs to hand over/surrender their official vehicle where applicable”.
These averments were not denied by the Appellants in their Affidavit in support of the Notice of Preliminary Objection. All the Appellants did was to aver in paragraph 4 (a) (b) (c) and (d) that the Respondents appointment was made at the pleasure of the Governor and therefore not in accordance or not made pursuant to the provisions of the Local Government Service Commission Law, 2000. (See pages 35 – 36 of the Records).
The question of whether the Governor has powers to dissolve Commissions of this nature, the tenure of whose members are regulated by statute which provides for grounds for removal of its members was considered by this court in the case of ALHAJI ISSA OJIBARA vs. THE GOVERNOR OF KWARA STATE (2004) 30 WRN 26, where this Honourable court, in construing the provision of Section 201 (1 ) of the 1999 Constitution (which has the same wording as Section 4(1) of the Local Government Service Commission Law held that:
“All the above has shown that what was communicated to the Appellants was the dissolution of the Commission and not removal of members of the Commission as provided for by the Constitution. The resolution for removal has not shown that the Appellants were removed on ground as under Section 201 (1) of the Constitution and that purported removal was even not communicated to them to give effect to it. The question raised as to having regard to the affidavit evidence before the court, the Respondent acted ultra – vires his powers with the removal of the Appellants as Chairman and members of the Kwara State independent Electoral Commission must therefore be answered in the positive.”
In the light of the foregoing, I agree with learned counsel for the Respondents that the Respondents’ appointment has its root from a statutory provision. It has its origin in Section 3(1) of the Local Government Service Commission Law 2000 and can only be terminated according to the provisions of Section 4(1) of the said Law. It is an appointment with statutory flavour, therefore, the Respondents’ appointment can only be terminated by complying with the procedure laid down in the statutory provisions. The 1st Appellant therefore acted ultra vires his powers. The termination of the Respondents’ appointment in the circumstances in which it was done is null and void and of no effect whatsoever, and the learned trial judge was right in so holding.
My sentiments on this flagrant disregard of the provisions of the statute by the Appellants herein have been captured by the Learned trial court when he held thus, at page 114 of the Records that…
“The announcement by radio and subsequent publications in the newspapers of the dissolution and removal of the Plaintiffs’ is a sad reminder of our legacy from the Military Administration in this country. Nigeria having changed to democracy in 1999 and democratic governance, it should have weaned itself from the Military dictatorship which we were subjected to…”
Now, coming to the issues of judicial Notice being taken by the learned trial judge, the appointment of the Respondents not being in accordance with the law, and the granting of a relief by the trial court not claimed by the Respondents canvassed by the learned Attorney General for the Appellants are all extraneous matters and are of no moment to this appeal. This is because the issue of propriety or validity of the Respondents’ appointment was not the issue before the lower court. The issue in contention before the lower court was the propriety or validity of the removal of the Respondents from service.
I therefore resolve this issue against the Appellants and in favour of the Respondents.
The appeal fails completely as it is devoid of any merit. It is accordingly dismissed. The judgment of the Hon. Justice A. K. Fowe delivered on Monday 17th day of January 2011, is hereby affirmed, save for the order restraining the Appellants from further appointing other person(s) to replace the Respondents before the end of their 3 year tenure as provided under the Local Government service commission Law, No.2 of 2000, the Respondents having been granted their alternative prayer for payment of a, their total remunerations up to and including 11th February, 2011.
There shall be costs of N50, 000 in favour of the Respondents against the Appellants.
CHIDI NWAOMA UWA, J.C.A.: I have read before now the judgment delivered by my learned brother UWANI MUSA ABBA AJI, J.C.A.
His Lordship has dealt with the issues raised in detail and resolved same. I agree with his reasoning and conclusion arrived at in dismissing the appeal for lacking in merit and not granting the order restraining the appellants from further appointing other persons to replace the Respondents before the end of their three year tenure as provided under the Local Government Service Commission Law, NO. 2, of 2000 under which the Respondents were appointed.
I also hold that the Respondents’ appointment enjoys statutory flavour, The term of three years was not in dispute which ended on 11th February, 2011. Obviously, the termination of the Respondents’ appointment before the end of their tenure was null and void, as rightly held by the learned trial judge, Having been granted their alternative prayer of payment of all the Respondents’ entitlement up till and including 11th February, 2011 when their three year term would have ended, everything concerning that office ended there, Granting an injunction, restraining the appellants from appointing other persons to replace them before the end of their three (3) year tenure, would be likened to eating their cake and still having it. In my humble view whether their positions are filled within the un-expired period of less than one month or after, should no longer be of interest to the Respondents, who have as it is, lost nothing (having been paid all their entitlements) and at the same time do not want someone else to occupy their former positions. It is not tenable.
For the fuller reasons given in the leading judgment, I also affirm the judgment of the trial court of 17th January , 2011. I abide by the order made as to costs.
HARUNA M. TSAMMANI, J.C.A.: I had the advantage of reading before now, the judgment delivered by my learned brother, Uwani Musa Abba Aji, J.C.A.
I agree with the reasoning and conclusions arrived at by my learned brother. I only need to say a few words on the import of the phrases “graciously approved” and “at the pleasure of the Governor” entrenched in the various documents conveying the appointments of the Respondents as members of the Ekiti State Local Government Service Commission. For ease of understanding, I hereunder reproduce the relevant part of such letter(s) of appointment. It reads:
“I am pleased to inform you that His Excellency, Engineer Olusegun Adebayo Oni, the Governor of Ekiti State has graciously approved your appointment as….member of Local Government Service Commission with effect from…The appointment is at the pleasure of the Governor, please,”
It is the incorporation of those two phrases into the letters of appointments issued to the Respondents that forms in my view the vortex of the Appellant’s defence to the action filed against them by the Respondents. Remove those phrases from these letters; the entire argument of the Appellants will collapse like a house built on quicksand.
After pondering on the import or legal consequence of those phrases in the Respondent’s letters of appointment as members of the Ekiti State Local Government Service Commission, I wish to point out that, in the private sector, the power to employ originates from the common law, while the power of the state or government to employ is regulated or founded on statute. In that respect, the legal relationship of the rights and duties between the employer and the employee are imposed by the public law and not by mere agreement of the parties. The relationship between the Government and its Servant is therefore not like in an ordinary contract of service between a master and his servant. The legal relationship goes beyond that. It is something in the nature of status, and the duties or the status of the employer and the employee are fixed by law and in the enforcement of those rights and duties, the society at large, in my view, has an interest. See AMASIKE V REG. GENERAL: C.A.C (2010) 13 N.W.L.R (PT.1211) P.337; OLUFEAGBA V ABDULRAHEEM (2009) 18 N.W.L.R (PT.1173) P. 384.
It therefore follows that, whether the issue involved is that of employment, promotion, discipline or removal of such employee, no public officer, organ or body or person exercises his personal powers. It therefore means that in the exercise of such power of employment, promotion, discipline or removal, no public officer has the power to exercise any personal right nor does he have the power to exercise such power at his own whims or caprices. This is because each exercises his power that is devolved to him by statute, and so the power must be exercised in the manner the enabling Law or statute directs that it should be exercised. Perhaps the dicta of the Indian Supreme Court in the case of ROSHANLAL TANDON V UNION OF INDIA, A.I.R (1976) S.C, P.1889 at P.1894, though of persuasive authority will be helpful. Therein it was observed, thus:
“It is true that the origin of Government Service is contractual. There is an offer and acceptance in every case. But once appointed to his post or office, the Government Servant acquires a status and his rights and obligations are no longer determined by consent of both parties, but by statute or statutory rules… In other words, the legal position of a Government Servant is more one of status than of contract. The hall-mark of status is the attachment to a legal relationship of rights and duties imposed by the public law and not by mere agreement of the parties… The relationship between the Government and its servant is not like an ordinary contract of service between a master and servant. The legal relationship is something entirely different, something in the nature of status. It is much more than a purely contractual relationship voluntarily entered into between the parties. The duties or status are fixed by the law and in the enforcement of those duties, society has an interest.”
It is glaring therefore that the Appellants being creatures of the Constitution of the Federal Republic of Nigeria, 1999, have a duty to obey all laws validly made in the exercise of legislative powers of the House of Assembly. To that end, in the exercise of his powers to appoint, promote, discipline or remove the Respondents as members of the Ekiti State Local Government Service Commission, the 1st Respondent was under a duty to observe and ensure the observance of the Ekiti State Local Government Service Commission Law, No.2, of 2000. In other words, the 1st Appellant being a statutory authority had no power to either employ, promote, discipline or remove any of the Respondents outside the requirement of the Law, which is the statutory authority empowering him to do so. The powers exercised by the Appellants are derived from statutes and they cannot exercise any powers except in accordance with and for the purposes they are granted such powers. If he did so outside the requirements of the statute empowering him to do so, his action will be ultra-vires his powers, and therefore null and void. The 1st Appellant also had no power to import anything into the statute giving him powers to appoint or remove the Respondents, which has the tendency to give him powers, not granted him by Law. I therefore hold that the 1st Appellant had no such statutory power to appoint under the Ekiti State Local Government Service Commission Law (Supra), any person in the Respondent’s status “graciously” and to remove them from such offices “at his pleasure.” I also agree with the learned trial judge that the inclusion of those two phrases have no legal effect on the appointment of the Respondents. They are there for cosmetic purposes.
On the whole, for the reasons stated above, and the detailed reasons contained in the lead judgment, I too agree that this appeal has no merit. It is dismissed. Accordingly, save for the order restraining the Appellants from further appointing other person(s) to replace the Respondents before the end of their tenure as provided under the Local Government Service Commission Law, No.2 of 2000, the judgment of the lower court is hereby affirmed.
I abide by the order as to cost.
Appearances
1. Dayo Akinlaja Esq, Hon. Attorney General, Ekiti State
2. L.B. Ujo Esq., (SG & PS)
3. Gbemiga Adaramola, Esq, (DD. CL)
4. Julius Ajibara, Esq, (ACLD)
5. Quentte Mbajunwa, Esq., Legal Officer for the AppellantsFor Appellant
AND
1. Obafemi Adewale, Esq.,
2. Gbadebo Ibuoye, Esq.,
3. Ajide Olayemi, Esq,
4. Joseph Ogunseni, Esq,
5. Ezekiel Agunbiade, Esq,
5. Bunmi Olugbade, Esq.,
6. Terfa Ashwe (Mrs)For Respondent
